The incoherence of conservative jurisprudence

Lawrence Gostin, in the new JAMA, discusses the Supreme Court's recent holding that the Second Amendment confers a personal right to own firearms, (District of Columbia v Heller) and furthermore that the Second Amendment applies to the states as well as the federal government (McDonald v Chicago). (Sorry, no free full text access, you just get the first 150 words.) While he does not use the term, Gostin's analysis amounts to a total demolition of libertarianism and of right wing philosophical and constitutional arguments more generally.

Gostin points out that the "right to bear arms" is "antithetical to social order and public safety." The empirical facts are that we are shooting ourselves and each other at a rate of 35 per 100,000 population each year, of which more than 28% of those injuries are fatal; and more than half of all firearm fatalities are suicides. The firearm death rate for children -- defined here as younger than 15 years -- is 12 times higher than the average rates in other industrialized countries. A gun kept in the home is far more likely to end up killing or injuring a family member than it is to ever be pointed at an intruder.

One cannot argue that our liberties are enhanced by a right to gun ownership and gun carrying without sensible regulation or restrictions because when you exercise such a right, you are likely to deprive me of my own right to live in safety and be free of coercion. The putative right is quite different from the others enumerated in the Bill of Rights, which as Gostin puts it are "fundamental to the fulfillment of personal autonomy, dignity, and political equality."

The original intent of the Second Amendment is much contested but only because "gun rights" advocates argue tendentiously. The plain meaning, and evident intention of the amendment, is to protect the states from having their militias disarmed by the federal government. By interpreting the Amendment as a restriction on the rights of the states to regulate gun ownership and use, the Court has turned it upside down. This is entirely typical of conservative judicial philosophy, which argues for states rights when it wants to restrict the federal government -- as in school desegregation, environmental protection, etc. -- and against states rights when it wants to restrict the states, as in this case.

As Gostin cogently argues, the appropriate regime of firearm regulation depends very much on the local social context. The considerations are entirely different in rural areas where substantial numbers of people hunt and criminal violence is comparatively uncommon, than in urban areas where firearm-related recreation or economic uses are essentially absent, and gun-related crime is a major problem. There can hardly be an issue for which state and municipal control is more obviously appropriate and for which democratically elected lawmakers are more appropriate arbiters than judges.

I have a very strong liberty interest in being free to walk around town unarmed in reasonable safety. Alito, Roberts, Scalia, Thomas and Kennedy have deprived me of that most important right. As we know, their true concern is not your liberty, or mine, but the profits of firearms manufacturers. Turning the radical, anti-liberty faction that currently controls the Supreme Court into a minority should be a foremost concern of voters.