In McDonald v. City of Chicago, the Roberts court has once again turned the constitution on its head and -- even as its majority disclaims judicial activism and claims to be seeking the "original purpose" of the Constitution -- winds up with a result that emasculates the document.
Dissenting Justice Stevens (see his dissent, pages 41-44) has it right. The Second Amendment of the Constitution really has nothing to do with individual rights at all. That section says,
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
The militia in 1787 was purely a creature of local communities and the separate states and really had nothing to do with individuals or their rights. The Second Amendment was directed at the federal government and was meant to keep the federal government from depriving the "people" from the right to keep or bear arms. That was not a general right to keep arms for individual use, but in order to safeguard the "well regulated Militia."
In Heller v. District of Columbia, decided two years ago, the Supreme Court struck down a law which applied only in the federal District of Columbia. The Court held that the citizens of that federal enclave had a right to arms which Congress could not take away from them. Of course, the problem there was that Congress basically controls the government of the District of Columbia, so the situation does not fall neatly within the language of the Second Amendment. Holding that the rights of the "people" in DC cannot be infringed by the ruling Congress makes some sense.
In the McDonald situation, however, the City of Chicago (a creature of the State of Illinois) was basically making the decision. If the real point of the Second Amendment is to protect the "well regulated Militia," and the local entity is the one responsible for that militia, then the Court has turned the constitutional language on its head to say that the local entity cannot control the weapons which might be used by that militia.
The unfortunate part of fact situation in McDonald is that, in enacting the laws regulating weapons, Chicago did not make any reference to its militia. But just suppose that Chicago had said:
"We need to make sure that our community is safe. Our local police and militia are the entities responsible for that safety. This includes providing political stability, eliminating the threat of anarchy, and keeping that crazy federal government from ever tromping on our liberties. If we allow any idiot to go out and buy a gun, we're undercutting our own safety and the ability of our police and militia to keep the order we need. So, we've decided that in order to have a well regulated Militia, only trained members of the Militia can have and use guns. The other guns will be locked away."
That may seem antiquated but -- heck -- the Second Amendment is pretty old. Yet if the local community had based its decision on regulating guns in order to be sure that the guardians of order were safe and regulated, how could the Supreme Court turn around and say that there is an individual right to bear arms which trumps that the concern of having a well Regulated Militia? The latter purpose is written right into the Second Amendment.
What the Supreme Court did was fashion almost out of the whole cloth a right in the individual to have weapons. It pointed to history. But even though the history is there, the Second Amendment does not say, "The rights of individuals to keep and bear arms shall not be infringed." There's that pesky language about the "well Regulated Militia," and the local community -- which, after all, is the one responsible for that Militia -- is the one which should decide how and why arms should be borne within that community.