Legal Commentary

It comes as no surprise that the SCOTUS held in McDonald that the Fourteenth Amendment incorporates the Second Amendment against the states. But it is deeply laughable that the Court continued to reject cost-benefit balancing in the definition of the right. In the Court's words (page 44):

JUSTICE BREYER is incorrect that incorporation will require judges to assess the costs and benefits of firearms restrictions and thus to make difficult empirical judgments in an area in which they lack expertise. As we have noted, while his opinion in Heller recommended an interest-balancing test, the Court specifically rejected that suggestion. See supra, at 38?39. 'The very enumeration of the right takes out of the hands of government?even the Third Branch of Government?the power to decide on a case-by-case basis whether the right is really worth insisting upon' [quoting Heller].'

This "fiat iustitia, et pereat mundus" rhetoric is sheerest silliness: The public will demand that the courts will take into account the costs and benefits of firearms possession in deciding whether the right has been infringed, and the courts will -- as they always do -- follow the public's marching orders.

So how will McDonald actually be applied? In reality, costs and benefits will have to be consulted, simply because one cannot resolve practical problems of governance without doing so. Should guns be allowed in Schools? Bars? Prison visitation rooms? Courthouses? Should convicted felons be allowed to possess them? What if they have not been convicted of violent offenses? What if they really need firearms to earn a living or protect themselves? The notion that these sorts of questions can be answered intelligently by looking at what Bingham said to Fessenden in 1868 is the sort of goofiness that will fool only the most naive or diehard originalist.

Instead, if lower courts take Justice Alito's Old-Time Rights Religion seriously, we will be treated to horse doctor's doses of judicial bad faith. Courts will pretend to consult the oracles of the 39th Congress to determine whether municipal gun regulations are acceptable, surveying 19th century municipal ordinances for gun-free schools zones and the like, but they will, in reality, be applying their own folk sociology about the practical necessity of the law. Parties will try to smuggle in data in covert Brandeis briefs, glossed with phony historical window-dressing. Sooner or later, the courts will acknowledge some sort of "compelling state interest" escape hatch a la Grutter that will allow the issue of costs and benefits to be briefed in a forthright manner. In the meantime, we must suffer the nauseating Kabuki act of courts' pretending that they are just calling balls and strikes. Pay no attention to that policy guy behind the curtain, sez the Great, the Powerful SCOTUS of Oz.

Oy.