Gun rights case hits Supreme Court Tuesday

Will conservative Supreme Court Justice Antonin
Scalia be the wild card in gun rights case McDonald 
v. Chicago? Photo: Wikipedia.com 

McDonald v. Chicago oral arguments scheduled
for 10:00 AM…

On Tuesday, March 2, the Supreme Court of the United States will hear arguments on whether Second Amendment protections should apply to states as well as the federal government.

The case is McDonald v. City of Chicago. At issue is not so much the Second Amendment, but rather the Fourteenth.

Specifically:

 “QUESTION PRESENTED: Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.”

GURA AGAIN ARGUES FOR SECOND AMENDMENT

Representing plaintiff Otis McDonald and others is Alexandria lawyer Alan Gura. Those who followed the seminal Second Amendment case Heller v. D.C. will recognize Gura as the lawyer who, for the first time in history, led the Supreme Court to definitively rule that the Second Amendment affirms an individual right to keep and bear arms.

Recruited and funded by Robert Levy of the libertarian-leaning CATO Institute, Gura led the Court to a decision which, although not invalidating all gun laws, clearly forced the federal government to respect individual rights when formulating law.

However, in an interview of Gura by David Kopel of the Independence Institute, Gura noted that the Bill of Rights was originally construed to restrict only the federal government, not states. So immediately following the Heller victory, he filed suit against the City of Chicago’s near-complete gun ban.

STRANGE ALLIANCES … AND ANTIPATHIES

Gura’s brief argues from two provisions of the Fourteenth Amendment, which was ratified during post-Civil War reconstruction. First, he argues from a relative traditional “due process” provision. But his more novel argument seeks to overturn the notoriously flawed “Slaughter-House Cases” Supreme Court decision of the Nineteenth Century, in which the Court ensured continued subjugation of blacks by ruling that only those rights derived from creation of the federal government were incorporated against the states; pre-existing rights (such as the right to keep and bear arms) were not.

Although the NRA was not a party to McDonald, having filed its own case, it muscled its way in by filing a motion to present due process arguments, creating antipathy and potentially robbing Gura of precious time from the one hour allotted for oral arguments.

Even stranger, claiming that Gura’s brief lacks sufficient attention to the due process clause, the NRA hired former U.S. Solicitor General Paul Clement to argue its case despite the fact that Clement previously argued for gun control in Heller v. D.C.

Elsewhere, even liberals normally hostile to gun rights are supporting Gura’s incorporation arguments. First, thirty-eight state attorneys general filed an amicus brief in favor of incorporation.

More recently, said an editorial in The Los Angeles Times:

“For us the choice is clear: The Bill of Rights should apply to the whole country.

“We were disappointed two years ago when a 5-4 majority of the court ruled that the 2nd Amendment conferred an individual right, despite language referring to the necessity of a ‘well-regulated militia’ … But if the court would identify an important individual right -- in this case, the right to bear arms -- and then deny that it applied to the states, those who never accepted the incorporation doctrine might try to ‘de-incorporate’ other rights. That's not a risk worth taking.”

Conservatives, on the other hand, fret about incorporation. Despite support for gun rights, some have called the privileges and immunities argument “libertarian” and say it might undermine states’ ability to control, among other things, business.

5-4, or 4-5?

But the wild card is Justice Antonin Scalia. Although a stalwart conservative and hunter who wrote the majority opinion in Heller, some speculate he might vote against incorporation.

In 1997, he wrote:

“Of course, properly understood, [the Second Amendment] is no limitation upon arms control by the states.”

Given the now 5-4 split toward conservatism in the Court, losing Scalia’s vote would mean losing the case. Although CSPAN has yet to publish its schedule for March 2, it is a fair bet the network will run audio of the hearing as it did Heller. I for one will be listening …

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