Justice Stevens on the Bill of Rights and gun ownership 

With all due respect to Justice John Paul Stevens, I am dismayed at the following reasoning from his dissent in McDonald v. Chicago:

I do not doubt for a moment that many Americans feel deeply passionate about firearms, and see them as critical to their way of life as well as to their security. Nevertheless, it does not appear to be the case that the ability to own a handgun, or any particular type of firearm, is critical to leading a life of autonomy, dignity, or political equality: The marketplace offers many tools for self-defense, even if they are imperfect substitutes, and neither petitioners nor their amici make such a contention. Petitioners' claim is not the kind of substantive interest, accordingly, on which a uniform, judicially enforced national standard is presumptively appropriate.

The problem, of course, is that it proves vastly too much.

For example, we could easily denigrate the choice to be a Catholic or a Protestant, because we observe lives of autonomy, dignity, and political equality being led by Jews, Hindus, and atheists. The market has provided many other spiritual choices, you see. Even if they are imperfect substitutes for being a Baptist, you still can have your autonomy, dignity, and political equality, so there is no need for the courts to protect you here.

We could go on, because lots of people make lots of different choices while retaining their autonomy, dignity, and political equality. These traits are held by singles (ban marriage), by teetotalers (ban alcohol) and by Spanish-speakers (ban English). But this would be politically unpopular.

The point should not be that people who make different choices remain autonomous, dignified, and politically equal. The point should be that people are free to make choices, and that some of these choices -- while free, dignified, and politically equal -- are not going to be the same as the choices that I would make.

Stevens here takes diversity and reasons it into an excuse for conformity. He takes the power of the market and turns it into an argument for restriction. Follow these lines of thought, and liberty begins to eat itself.

A truly free, dignified, and equal life would be one in which I could choose to own a handgun -- or not. Or I could carry pepper spray. Or I could do both if I really felt like it. The mere availability of substitutes does not justify taking any particular choice away. Not even if the substitutes are personally more appealing to a judge.

Am I being uncharitable? Stevens clearly believes, and indeed it is his entire point, that gun ownership differs in some fundamental way from religion. One's choice of religion is surely more important than one's choice in handguns, isn't it?

Perhaps that's how many people feel, and in fact, they're probably right. Religion may well be more important in the grand scheme of things. But our Constitution doesn't treat these choices differently. It places both of them in the text, in plain language, and in the Bill of Rights.

The courts should not be permitted to treat them unequally merely because judges find some choices more appealing or more important than others.

About The Author

Jason Kuznicki

Jason Kuznicki is a research fellow at the Cato Institute. He received his Ph.D. in history from Johns Hopkins University in 2005.
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