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Reading a transcript of the lawyers’ oral arguments in front of the Supreme Court in the case of McDonald v. City of Chicago actually gives us a more accurate diagnosis on the condition of liberty in the United States today than you could get from watching a thousand hours of cable news and listening to a thousand hours of talk radio.

The specific reason that this case is being heard before the Supreme Court is a legal contrivance — an attempt by those who believe in the individual right to keep and bear arms to establish that right in the federal courts, where it can be enforced.

Specifically, in this case, a ban on handgun ownership in a private home is being challenged on grounds previously established in the case of District of Columbia v. Heller, in which the Supreme Court recognized the Second Amendment as enshrining in the Constitution’s Bill of Rights an individual right to keep and bear arms.

But the Bill of Rights was originally intended to restrict and limit only powers granted by the Constitution to the Federal Government. It wasn’t until after the Civil War and the passage of the 14th amendment that rights enshrined in the Constitution’s Bill of Rights were thought to be able to be enforced by federal courts on state and local governments.

And therein lies the primary question: do you want the Government of the United States — federal marshals, FBI agents, the EPA, IRS, even the ATF — coming to your defense when your rights are violated by state and local officials?

It’s not a question that remotely crossed the minds of the Founding Fathers when they carefully crafted the balance of powers between the United States and the states themselves, because they did not contemplate what we have today: a federal government that has taken upon itself vast powers never granted to it by the Constitution that survived a rebellion from the States and the people.

The Founding Fathers — Jefferson and Madison in particular — would have been shocked by nothing so much in subsequent American history as the federal government winning the war against states seceding from the Union.

So when Alan Gura — the attorney for the plaintiff seeking relief in a federal court from the oppression of the City of Chicago — argues to the Supreme Court that the “privileges and immunities” clause of the 14th amendment should be used by federal courts to forbid the City of Chicago from violating Otis McDonald’s Second Amendment-protected right to keep a handgun at home, Mr. Gura is using the arguments of liberal civil-rights lawyers and liberal activist judges to further weaken state and local governments and further empower the federal government.

The conservatives on the court — who want to give no more power to the federal government — are caught on the horns of a dilemma. They believe in the Second Amendment. They believe the right protected by the Second Amendment is no less deserving of protection than other rights enumerated in the Bill of Rights which previous courts have already held can be enforced by federal courts against state and local officials.

But they do not want to unleash a swarm of federal bureaucrats on state and local governments as an unintended consequence of attempting to protect individual rights.

Likewise, the liberals on the court would like nothing better than to expand the power of federal courts to intervene in state and local matters — and what better excuse than protecting rights enshrined in the Constiitution? — but they get sick to their stomach when they contemplate that the right to own and carry guns will be among those protected rights.

It puts every Justice outside of their usual comfort zones.

It gets even more complicated because the authors of the Bill of Rights got even more radical than the idea of the people being well-armed to protect the possibility of future revolutions. In the Ninth and Tenth Amendments they said that just because they missed writing down a specific right didn’t mean the right disappeared. They created a category of “unenumerated rights” — rights held by the people at the time the Bill of Rights was added to the Constitution in 1792 — and if you take the Constitution at all seriously, what this means is that every bit of personal freedom that was legal for an individual in 1792 is still legal today — and any legislation to the contrary is null and void.

Taking the idea of unenumerated rights seriously was so threatening to Justice Scalia that when Alan Gura brought it up — in passing — Scalia asked Gura if he was trying to get himself a job as a law professor. After all — let’s get serious. It’s only in an ivory tower that one could possibly take seriously the thought that the Supreme Court is supposed to launch a Second American Revolution by actually enforcing the people’s individual rights against a Leviathan Engine that regards them as fuel!

The problem with Justice Scalia’s panic is that Alan Gura isn’t the problem.

The American people are Justice Scalia’s problem.

Even after over a century of public-schooling and major media working to legitimize a powerful, paternalistic welfare/warfare State, there are still millions of Americans who read the Constitution — which is a fairly short document written in plain English — and regard it as a contract in which certain rights and powers are their own, not any employee receiving a paycheck paid for with their taxes.

It doesn’t matter what the Supreme Court says. They know what the contract says is theirs, and they’re going to get ornery, uncooperative, and possibly even go ballistic when that contract is violated and their lives are disempowered and impoverished thereby.

That, Justice Scalia, is revolution. Madison writing in the Federalist Papers knew that no matter how many weapons systems are in service to protecting the establishment powers, nothing can prevent the people from eventually reaching a point where merely by refusing to cooperate the system collapses in on itself.

It’s not just guns that would come out in the streets when that happens. It would be SUV’s, iPhones, IED’s, and — in general — the indignation and ingenuity of millions of people who have their garages, attics, and basements filled with so much lethal junk that even I — a science-fiction writer — can’t imagine the havoc they could create if the Middle Class American ever really got pissed off.

The Supreme Court of the United States is the mediator between a nation of potential revolutionary maniacs and an establishment that exists — no shit, really — only by their sufferance.

I am not the one making this threat, Justice Scalia. I’m just a reporter. Don’t shoot the messenger.

But pay attention. However you decide the balance of power between the federal government and states and localities, it had better have as its object the maximum preservation and protection of what the American people see as their natural and obvious Constitutional rights.

An earlier Supreme Court made a mistake about this once in a case called Dred Scott v. Sandford. Somewhere between 600,000 and 700,000 Americans died because of that mistake.

I suggest you err, next time — just for the sake of public safety — on the side of liberty.


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