In the case of the roadblock, the government interest is easily distinguished from the individual liberty interest. The government seeks to advance an interest (reducing highway fatalities associated with drunk driving) by setting these roadblocks. The Court approved the roadblocks by taking into account two individual liberty interests: 1) Demanding that the stops minimize intrusion (by being brief) and 2) Demanding that the stops minimize discretion (by stopping every car, or every other car, or every third, etc.).
In the case of gun bans, distinguishing between the two interests has been more difficult. At first, it was simply assumed that banning handguns would reduce crime. After fifteen years of research and sixteen refereed publications finding a contrary result, it’s time we recognize that high crime in urban areas promotes the individual interest in owning and possessing handguns and in the implementation of “shall issue” concealed carry laws.
Nonetheless, the city of Chicago is defending a law which bans handguns entirely – even for use within one’s home. But the case is being challenged by a plaintiff named Otis McDonald. McDonald is asking the Court to consider the individual right to bear arms affirmed in Heller as binding on all fifty states through the Fourteenth Amendment.
It will be interesting to see how this plays out. The Fourteenth Amendment, ratified in 1868, was a crucial part of the Republican effort to end slavery – even after involuntary servitude had been banned by the Thirteenth Amendment. Back then, Southern Democrats targeted former slaves using vagrancy laws, which made it a crime to “wander without any visible means of support.” After imprisoning the former slave, the Southern Democrat would allow him to work off his fine by picking cotton on a plantation.
These “convict lease systems” were little more than legalized slavery. Thankfully, the Equal Protection clause of the Fourteenth Amendment hastened their extinction.
Today, many African Americans – like plaintiff Otis McDonald – are prisoners in their own homes. Urban violence disproportionately affects them. And any law that makes urban violence worse is a law that denies them Equal Protection.
The year after Justice Breyer lost in his bid to uphold the D.C. gun ban a funny thing happened. The murder rate in D.C. plummeted by 25%. To date, he has not retracted his statement that “predictive judgments as to the law’s tendency to achieve those objectives (reducing violence in D.C.) are adequately supported.”
It is rare to see such a convergence of individual liberty interests and government interests as we have in the McDonald case currently before the Supreme Court. It is rarer still to hear a sanctimonious Justice admitting that his ideas are wrong and that their consequences fall disproportionately on those who dwell in “crime ridden urban areas.”