Legal Commentary

For federalism fans (of which I am one), the oral argument in McDonald two weeks ago oral argument in McDonald two weeks ago was only a modest disappointment. Several members of the Court looked as if they might adopt the strategy familiar from the Sixth Amendment of formally incorporating the Second Amendment against the states but giving the states a lot of leeway to ?tailor? the details of the right. That?s better than the absurdity of imposing a single limit on gun regulation on a nation bitterly divided over the issue. But this sort of doctrinal nuance has the same sort of detached academic quality of other discussions of incorporation issues ? for instance, the (to my ears) completely sterile discussion of whether the right home for incorporation doctrine is the Due Process or Privileges & Immunities clause. (Query to my blogosphere colleagues: What conceivable practical difference does it make to any sensible citizen whether we hang the doctrine on one hook or the other?) What possible practical guidance do we get by some Delphic pronouncement from Kennedy that some but not all of the Second Amendment applies against the states?

We need a theory of federalism and rights, not a theory about the proper linguistic etiquette for writing a brief. That is, we need some way to determine which governmental actor ought to regulate firearms. We have three candidates on the table -- (1) federal courts using some policy-laden ?balancing? test while pretending that they are interpreting the 14th Amendment; (2) Congress, using mostly the commerce clause; and (3) the States, using their reserved powers. If we focused on sensible federalism policy, then is it not obvious that the right answer, as a matter of sound federalism-and-rights policy, is (3)? And if our jurisprudence really requires us to ignore such sensible policy in favor of fly-specking of 19th century cases about oyster beds and speeches in the 39th Congress, then is our republic not truly ridiculous?

Since SCOTUS does not like making ridiculous policy, I suspect that they will Grutter-ize the Second Amendment ? i.e., declare gun ownership to be a fundamental right that states cannot infringe without a really good reason but then allow states to regulate it all the same just so long as they are not too candid about it and undergo some ritual hazing by a federal judge to determine if their grounds for regulation are the least intrusive means for a blah, blah, blah. In short, we will get sensible decentralization but in a low, furtive, dishonest way. But perhaps you disagree with me about the policy merits of federalism for resolving our disagreements about guns. Consider, then, the following (after the jump):

(1) We are riven by a bitter cultural divide on guns, a divide that paralyzes Congress whenever it confronts the issue. Option #2, therefore, seems hopeless. (On the national and subnational politics of gun control, I recommend Kristen Goss's 2006 book, Disarmed: The Missing Movement for Gun Control )

(2) As for option #1 ? the federal courts -- is it not obvious, as a practical matter, that federal gun rights jurisprudence would be ?I-know-it-when-I-see-it? ipse dixit masquerading as legal wisdom? We had horse doctors? doses of that sort of ?rights? jurisprudence from the pre-Miller v California days, when the SCOTUS used to apply First Amendment obscenity doctrine by watching porno flicks in chambers. Do we really want to produce an equally obscene jurisprudence of firearms, in which clueless federal judges, lacking any sort of experience in law enforcement, gun safety, crime control, regulation of public spaces, etc, owlishly opine on whether some local ordinance banning guns in some range of places (bars, schools, parks, courtrooms, etc), or holding gun owners or manufacturers strictly liable for injuries, or requiring a license or safety catches violates some ill-defined federal right? Will their black robes really fool anyone into believing that they are doing law when they declare that such laws are, or are not, ?reasonable??

(3) As for the states, they are reasonably heterogeneous on opinions about firearms: With both college towns and rural outbacks, big cities and suspicious suburbs, red and blue counties. Gun owners, therefore, are hardly in any position remotely analogous to the Freedmen, unable to secure a decent hearing in the state legislatures. I understand the theory of Federalist #10 that, as a practical matter, one would not want decentralized governments to control interests that are afflicted with racial or religious zealotry that de-humanizes some minority. I also understand the theory that states? regulation of speech and voting rights need to be monitored to preserve democratic fluidity from the entrenchment of some local faction. But is there some other sensible functional theory to explain why we should distrust the states from regulating firearms? The NRA seems to do quite well at the subnational level, winning most battles, losing a few, but mostly holding their own. Why make a federal case out of their cause?

Oh, I forgot: Gun ownership is a ?fundamental right? ? an incantation that absolves the speaker of making any sensible policy argument in favor of centralizing the definition of the entitlement. Driven by this magic phrase, the federal courts will probably ?incorporate? the Second Amendment into the pantheon of rights. Driven by the practical reality that the right in question patently requires a lot of regulation and the federal judges are utterly unequipped to evaluate such laws, we will get Grutter-ization described above. If you, like me, find that prospect to be a pointless waste of legal fees and law review space, then you might want to re-think the foundations of ?rights fundamentalism,? in which everything that is ?fundamental? must somehow be defined by federal officials.