The Supreme Court’s 5-4 decision striking down Chicago’s gun law in the McDonald v. Chicago case was a significant victory for Second Amendment rights but it also exposed how tenuous our fundamental constitutional rights have become, and the extent to which our freedoms have eroded.
The Chicago gun ban was so obviously unconstitutional it begs the question of why the vote was even close. The American people, unlike many in Washington, understand that the Second Amendment, like the First Amendment, recognizes an individual right no matter if you live in a federal territory or a state. Our founders emphasized the importance of this right to protect ourselves, which is why they listed second in the Bill of Rights.
Congress also adopted the 14th Amendment to ensure that the Second Amendment rights of all law-abiding Americans were not infringed upon. This was necessary because following the Civil War, several states enacted restrictive gun control policies for freedmen (freed slaves). In many of these states, Ku Klux Klan chapters sought to disarm, rob, and sometimes even murder freedmen. Without the right to bear arms, freedmen could not meet in public and feared for their lives. The 14th Amendment was passed to repeal these unconstitutional gun control provisions and to guarantee the right to keep and bear arms as a fundamental right.
It is tragic that politicians have abridged a fundamental right of all law-abiding Americans for decades. While Chicago is one of our great cities, it is also one of the most violent cities in our country. In one recent weekend, 10 individuals were killed and at least 44 were wounded because of gun violence, even though firearm possession has been illegal for almost 30 years. Chicago has had the dubious distinction of being the murder capitol of our country numerous times during the life of its gun ban. Tragically, residents such as Otis McDonald who live in crime-infested neighborhoods have had no means to defend themselves from criminals.
Our founders intended for all law-abiding Americans to have the freedom to defend themselves and their families from crime. As the Ninth Circuit Court recently concluded, “The right to keep and bear arms is ‘deeply rooted in this Nation’s history and tradition.”
The McDonald decision was so close because a near majority on the Court, and many in government, consider the Constitution to be merely a guiding document instead of binding force that limits the power of the government over the individual. The problem is not merely that many on the Court, in Congress and the administration act as if they are above the law. Rather they are acting as if they are the law. In their view, the rule of law is not a constant but dependent on who is in power – a phenomenon our founders would have called a “tyranny of the majority.”
Restoring our institutional protections against this tyranny is one of the great challenges facing our country. Recent Government takeovers of large sections of our economy – autos, banks, housing, education, health care, and so on – didn’t happen overnight but were made possible by deliberate efforts to erode carefully constructed barriers around government.
Our founders didn’t create rule of law to protect individuals from the cruelties, inequalities and arbitrariness of capitalism but to protect individuals from the oppression of government. The McDonald decision was an important victory but it is a prelude to even greater struggles to protect the individual liberties and freedoms that built this country, but are disappearing before our eyes.
Tom A. Coburn, M.D. was elected to the U.S. Senate on November 2, 2004. He is a member of the Senate Judiciary Committee, Homeland Security and Governmental Affairs Committee, Intelligence Committee, the Indian Affairs Committee and the Committee on Health, Education, Labor and Pensions.