Paul Greenberg

It was expected. The outcome of the Supreme Court's hearing on Chicago's prohibitive handgun law had been predictable since a similar local ordinance was struck down in the nation's capital.

The reaction to the decision was predictable, too: Supporters of the Second Amendment and the right to bear arms cheered; the gun-control crowd predicted the worst, as they always do when Americans are allowed to defend themselves and their homes. Once again, we're being told that all hell is going to break loose -- even though it never does as one state after another passes a concealed-carry law.

The legal reasoning that led to the court's opinion in McDonald v. Chicago last week was scarcely new. It was a routine Fourteenth Amendment case. All the court had to do was decide whether some right, like the right to bear arms, was covered by the broad language of the amendment. If so, it was deemed "fundamental" and could not be abridged. To use the currently accepted euphemism, it was "incorporated" into the Constitution. As for those rights that aren't, well, they just have to wait their turn -- till public opinion or the court, which can be much the same, changes.

It's a wholly arbitrary approach, more a matter of whim than law. Whenever the Supreme Court has to decide which rights make the cut, an almost metaphysical discussion ensues. The arguments may be sophisticated but they're also sophistical, hinging on which rights the justices like and which ones they don't. Rather than clear law. But there's an advantage to such an approach: It allows the court to pick and choose, even cherry-pick, which of our rights it will protect this year.

Not even the clear language of the Fourteenth Amendment, deliberately designed to assure the rights of even the least of us, the newly freed slaves after the Civil War, could keep sharp legal minds from finding ways around, through and right past this part of the Constitution. Hence the dubious doctrine of "incorporation" was born, or at least foreshadowed, with the infamous Slaughter-House cases that mainly slaughtered the Fourteenth Amendment.

That's how the Fourteenth Amendment has been reduced to protecting due process, rather than the essential rights it ostensibly protects. So that, in this week's extension of Second Amendment rights, four of the justices in the majority could base their decision on the usual, largely arbitrary interpretation of what constitutes due process.

Paul Greenberg

Pulitzer Prize-winning Paul Greenberg, one of the most respected and honored commentators in America, is the editorial page editor of the Arkansas Democrat-Gazette.