A Theoretical Constitution in a Practical World

"In theory, there is no difference between theory and practice. But in Practice, there is." - J.L.A. van de Snepscheut.

In theory, today's opinion in McDonald v. Chicago (PDF) was absolutely correct. As I have argued elsewhere, the prefatory clause of the Second Amendment, "A well regulated Militia, being necessary to the security of a free State," does not provide the outer obvious boundaries for the Second Amendment's reach. Briefly, what primarily concerned the Framers in writing the Second Amendment was protection from a tyrannical government that sought to impose law by force rather than by functioning self-government. But "security" is not so simple a concept: The people of a state have the right to self-preservation as against all enemies—foreign and domestic, governmental and non-governmental. In an era of less-than-modern police forces, communities relied on their individual right to keep and bear arms for this security.




The writers of the Fourteenth Amendment were cognizant of this need for security. At the time, the biggest threat of tyranny was that of state governments against freed slaves. This is the basis for "incorporating" the Bill of Rights against the states: The states were seen as just as great a threat to liberty in 1868 as the federal government was in 1789. As far as I understand, one of the "privileges or immunities" envisioned in the 14th Amendment was precisely the right of freed slaves to keep and bear arms to protect themselves against potentially tyrannical states. Thus, there is nothing far-fetched at all about the idea that the Second Amendment should be incorporated against the states through the Fourteenth Amendment to whatever extent the Second Amendment actually protects citizens.

The question is, how far does it protect? Here is where theory and reality clash. The original purpose of incorporating the Second Amendment against the states was to protect African-Americans from the dangers of tyrannical states. However, in today's world the people most hurt by this "right" are this same group: African-Americans are disproportionately the victims of gun crimes. Thus, in a constitutional irony, the Supreme Court today has harmed people by invoking a right designed to protect those same people.

As much as I normally fall on the sight of expanding people's rights, guns present a unique problem. Today, the threat of handguns to society is far, far greater than the threat of state brutality to society. One can argue that this is only a recent phenomenon, but I am willing to argue that in most places, police protection is healthier for communities than self-protection.

In 1789, federal tyranny was a threat to life, liberty, and the pursuit of happiness. In 1868, it appeared that state discrimination was a greater threat. Today, the havoc that handguns wreak on communities appears to be an even greater threat than either of those. So what do we do?