The Second Amendment and the Myth of Neutrality: McDonald v. City of Chicago and Judicial Craftsmanship

The Supreme Court opinion in McDonald v. City of Chicago was an exercise in one of the Court’s most solemn duties—the identification of a fundamental right. In this case the right identified as fundamental was the right to keep and bear arms. Perhaps it should be called an anointing of a fundamental right because of all of the different jurisprudences that the Court has engaged in since the latter part of the nineteenth century, the identification of fundamental rights for a polity based on principles of liberty is almost sacred. Yet, a fair reading of the opinion, and 2008’s District of Columbia v. Heller establishes that for the conservative wing of the Roberts Court, its business as usual—political and social views disguised as constitutional interpretation and fealty to historic traditions. This essay takes an immediate look at the decision, its background, it misuse of history and draws conclusions about the state of jurisprudence on the Court. Most of the criticism is lodged at the conservative wing because of that side’s proclamations of neutrality, but the article is not an affirmation of liberal approaches—values play a role there as well and this is apparent from the dissents in the case. The essay hopes to engage readers in a critical evaluation of judicial motivation based on the quality of evidence and analysis offered by one side or another in cases that deal with hot ideological issues such as gun control.