Joyce Lee Malcolm
is a professor of law at George Mason University School of Law
The case of Otis McDonald, a 76-year-old black man living in a drug-infested neighborhood of Chicago, is now being considered by the U.S. Supreme Court. McDonald's home has been broken into three times, and drug dealers have threatened him. He would like a gun to protect himself.
Two years ago, in the landmark case District of Columbia v. Heller, the Supreme Court affirmed that the Second Amendment to the Constitution guarantees individuals such as McDonald the right to keep a handgun in their homes for self-defense. In doing so, the court overturned the D.C. handgun ban as unconstitutional. But the court's decision affected only the District of Columbia statute. McDonald remains subject to Chicago's handgun ban, a statute virtually identical to the Washington ban that the court rejected. In the case of McDonald v. the City of Chicago, the court will decide whether to incorporate the Second Amendment, as it has other fundamental rights, so that its protection must be respected by our cities and states.
The Chicago gun ban, in place since 1982, forbids residents from keeping a handgun in their homes. Any gun owned before that law was passed, or any long gun kept in the home, must be kept disassembled and locked. It cannot be assembled even in case of a break-in. It cannot be carried from one room to another within the home. Moreover, a firearm must be reregistered every year. The city fathers of Chicago accept no excuse for failure to reregister a firearm - not hospitalization, amputation, not death.
Is the right to keep a gun for self-defense a fundamental right deserving of incorporation? Self-defense has always been seen as the first law of nature, so basic that legal experts believed no government could take it away. English common law recognized three great and primary rights: personal security, personal liberty, private property. The Declaration of Independence regarded as unalienable the rights to "Life, Liberty, and the Pursuit of Happiness." Life first.
The Supreme Court found the right to be armed preexisted the Constitution and that when the Second Amendment stated, "the right of the people to keep and bear arms shall not be infringed," it intended to protect an individual right. Despite the suggestion of some critics, this is no new right. It is the most ancient of rights.
Of course, the framers of the Constitution lived in what we like to characterize as "a simpler time." Is it sensible to trust ordinary citizens with firearms when there are police to protect them? Won't more guns increase violence?
The Washington and Chicago gun bans have not made those cities safer places. Thirty years after the imposition of the Washington ban, Washington's homicide rate compared with that of 49 other major U.S. cities was higher than it had been before the ban. Disarming law-abiding citizens removes an important deterrent.
But can we rely on the police to protect us? The reason the use of force in self-defense has always been justifiable at law is because the authorities cannot protect everyone, or indeed anyone all the time. Moreover, the courts have found police are not obliged to protect us.
In the case of Warren v. District of Columbia, three young women sued the District of Columbia because the police failed to protect them. Men had burst into their townhouse and attacked their roommate downstairs. Hearing her screams, they called 911 repeatedly for over half an hour. When the screams stopped, they assumed the police had arrived and went downstairs only to be seized by the intruders. The police had lost track of their calls. All three women were brutally abused for 14 hours. D.C.'s highest court ruled that the police do not have a legal responsibility to provide personal protection to individuals. They have a general obligation to protect everyone but not an obligation to protect anyone.
There is understandable concern that if the Supreme Court decides to incorporate the Second Amendment, it will mean the end of all state and city regulation of firearms. That is not so. For example, the Eighth Amendment protection against cruel and unusual punishment was incorporated more than 40 years ago, but states still differ, sometimes markedly, on what they regard as "cruel and unusual."
And while the justices warned in the Heller opinion that "the enshrinement of constitutional rights necessarily takes certain policy choices off the table," they explained that reasonable regulations such as prohibitions against possession of firearms by felons and the mentally ill, or laws forbidding carrying firearms in sensitive places, were permissible. What is not permissible is depriving law-abiding individuals of the means to protect themselves.
If, as the justices concluded, the Second Amendment "elevates above all other interests the right of law-abiding responsible citizens to use arms in defense of hearth and home," Otis McDonald should win his case.
Joyce Lee Malcolm will be cohosting
a national videoconference on the McDonald case for high school students from 12:30 to 2 p.m. Thursday at the National Constitution Center. The local schools participating are Abington High School, Science Leadership Academy of Philadelphia, and Springfield (Delco) High School. View the broadcast live at www.constitution