Stevens Calls the Right to Arms a 'Property Right' (for Him, the Ultimate Insult)


In his McDonald v. Chicago dissent, Justice John Paul Stevens asserts:

The right to possess a firearm of one's choosing is different in kind from the liberty interests we have recognized under the Due Process Clause.…It does not appear to be the case that the ability to own a handgun, or any particular type of firearm, is critical to leading a life of autonomy, dignity, or political equality…

In some respects the substantive right at issue may be better viewed as a property right. Petitioners wish to acquire certain types of firearms, or to keep certain firearms they have previously acquired. Interests in the possession of chattels have traditionally been viewed as property interests subject to definition and regulation by the States.

Stevens' opinion that the right to armed self-defense is not very important was decisively rejected not only in McDonald but also in D.C. v. Heller, based on strong historical evidence that the people who ratified the Second and 14th amendments had a different view. But consider the implications of his suggestion that we view the right to keep and bear arms as a property right. Stevens, who sees nothing wrong with the forcible transfer of property from one private owner to another as long as it's done pursuant to a "plan," means this as a put-down. But contrary to his implication that states are free to define and regulate it however they choose, property is explicitly protected by the Fifth Amendment: People cannot be deprived of it without "due process," and it cannot be taken for "public use" without "just compensation." The 14th Amendment's moribund Privileges or Immunities Clause arguably provides additional protection for property rights.

Furthermore, the right to keep and bear arms is not the only constitutional right that depends on property. What about "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures"? Under Stevens' reasoning, it would be reduced to a "property interest" that is "subject to definition and regulation by the States." Likewise freedom of speech or religion, to the extent that they depend on the use of property such as computers, paper, ritual objects, and houses of worship. How meaningful would these rights be if you had them in theory but were forbidden to own and use property needed to exercise them?

I noted some puzzling rhetorical questions in Justice Stephen Breyer's McDonald dissent earlier today. I'll have more on the dissenters' complaints in my column tomorrow.