Disarming State Action; Discharging State Responsibility

Abstract

This essay examines doctrinal potential consequences arising from the Supreme court’s Second Amendment jurisprudence from McDonald v. Chicago, and its predecessor, District of Columbia v. Heller, when considered in conjunction with its due process case of Town of Castle Rock v. Gonzales. McDonald and Heller identify a right to self-defense rooted in the Second amendment’s “right of the people to keep and bear arms.” In identifying this right, the Court insists on the special character of “home” and private space, while obscuring the violence perpetrated by cohabitants of the home and the perpetration of, or acquiescence in, violence by state actors. Since the decision in Gonzales allows a state to avoid enforcing its own orders of protection and discharge its public responsibility without action, the pronouncement of a right to defend self under the Second amendment implies that self-help with firearms is a rational measure citizens can take to ensure their own safety. The combined effect of the Court’s seemingly unrelated decisions in Gonzales, Heller, and McDonald is the valuation of rights of autonomy and individual action — specifically, gun ownership and gun usage — over rights to personal security — specifically, freedom from gun violence.

Keywords: Second Amendment, Due Process, Violence