I was delighted when the Supreme Court case District of Columbia v Heller was decided in favor of the individual's right to keep and bear arms. I understood how that decision could be decided 5-4 by the nine justices. What boggles my mind is that given the decision of the Heller case, the McDonald v Chicago case wasn't decided 9-0. Stare Decisis, Latin for "to stand by that which is decided" is the legal principal that once a case is decided, the logic and decision of that case will be used in the future to decide cases that bear on the same principles of law. To me, Heller was a landmark decision and McDonald should have been decided in a few hours, a slam dunk.
Instead, Justices Stevens, Sotomayor, Bader-Ginsberg and Breyer tried to argue that a right in the constitution only binds the states if it is an indispensable attribute of ANY civilized legal system. They used international examples of societies where they don't have guns as examples of civil society, hoping to prove that the right to keep and bear arms wasn't integral to civil society and therefore not enforceable on the individual states of America. Justice Breyer has in the past suggested that the Supreme Court should look to international law for guidance in cases. Nope. We are a sovereign country with our own laws and our own history. As Justice Thomas said in his opinion, we can find examples among civil societies where the presumption of innocence doesn't exist. Should we therefore delete that from our laws? American judges decide our court cases based on our founding documents, our laws and our history.
Several of the arguments put forward in the minority opinion, such as the international law reality check, were put forward in the Heller case. They were beaten in Heller and DC v Heller became the law of the land. The same arguments should not have been brought up again in McDonald because they were settled. I fear that the allegiance to Stare Decisis among judicial activists only extends to those cases that they like. If Justice Kennedy had swung the other way on McDonald, the Heller case's precedent would have lasted a whole two years.
The opponents also sought to assert that there isn't a consensus about the right to keep and bear arms among the 50 states and thus it should be carefully considered before being enforced across the board. Page 47 of the McDonald decision states "An amicus brief submitted by 58 Members of the Senate and 251 Members of the House of Representatives urges us to hold that the right to keep and bear arms is fundamental." Later on the same page we are told that another brief submitted by 38 States takes the same position. I also believe that the Court is correct to describe the Second Amendment as "fundamental" to the American scheme of ordered liberty. As Justice Clarence Thomas put it, "Rather, the right to keep and bear arms is enforceable against the States because it is a privilege of American citizenship recognized by §1 of the Fourteenth Amendment, which provides, inter alia: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
Thankfully, the reasoning in Heller carried the day in McDonald v Chicago and the anti-gun crowd can look forward to many more cases of a similar nature across the country.