Heller Ain't No Bad Place to Be

Reason: What other legal challenges regarding the Second Amendment are you pursuing?

Gura: We are also challenging the California list in California, where the 9th circuit recently held [in the case Nordyke v. King] that the Second Amendment does bind the states. The state might be filing its response in early July. It's called Pena v. Cid.

Also in California we filed Sykes v. McGinness, challenging the practices in two California counties denying people the right to bear arms. California is a "may issue" state when it comes to carry permits. They leave it up to local authorities to determine if they will issue carry licenses. Some jurisdictions are fairly respectful of the Constitution and give permits to people who are law-abiding, and some jurisdictions don't.

So we are suing Sacramento and Yolo counties to get their carry policies overturned. The Heller opinion makes it quite clear that "right to bear arms" includes the right to carry. The court said there will be limits on time, place, and manner on this right to bear arms. For example, you cannot carry a gun into a "sensitive place." We're still not sure what a "sensitive place" is, but if there are some sensitive places we can't carry guns into, that also means there are some non-sensitive places.

I'm litigating another case in D.C., on an obscure provision of federal law that prevents expatriate Americans from acquiring guns in the U.S. The grounds of the challenge are the Second Amendment, and also the right to travel. American citizens are allowed to keep the guns they acquired prior to leaving the U.S. and setting up residence elsewhere. But if you have residence overseas, for some reason the government restricts access to firearms when visiting the U.S. That doesn't make sense.

I can't even imagine what the safety rationale of the law is. If you already had a gun [and leave the country] you can leave it with family or friends, leave it in storage, do whatever you want with that gun, but you can't buy a new one.

Reason: Where did this law come from? What was the official rationale?

Gura: It was snuck into the crime bill revision in 1994. I have not located any extensive debate about why this was thought necessary. You try to explain it, and people scratch their heads. Most gun laws have a rationale, even if it's a bad one that we don't agree with; but they try to make the case we need this law because of this, or handguns are too dangerous—OK, that's a reason. It's not a good reason but...The government is claiming we have no standing, not even addressing it on the merits, as far as I can see. This is in U.S. District Court in D.C. We filed this case earlier in various states these individuals were traveling and the government beat us on venue grounds, claiming the only venue is Washington, D.C. So there we are.

Reason: In order to win the Chicago case if it makes it to the Supreme Court, you have to win the 14th Amendment incorporation argument. How do you go about that?

Gura: The traditional selective incorporation argument, that some rights are incorporated against states through the Due Process Clause if they have certain qualifications, and the Second Amendment meets those standards. If you read Heller, it described the nature of the Second Amendment right such that it should be incorporated under modern analysis.

What I would like the Court to do is incorporate under the 14th Amendment's Privileges or Immunities Clause. To do that would require overruling the Slaughterhouse Cases from 1873, which held that the phrase "privileges or immunities" essentially doesn't mean anything. This is an opportunity to take a whack at Slaughterhouse. We don't have many opportunities in which to get the Court to revisit what this language means, and it's important they do so.

The Slaughterhouse Cases declared pretty much that the only privileges and immunities protected by the 14th Amendment are those of national citizenship, rights that accrue out of the existence of the federal government, like the right to a passport or right to travel the waterways of the U.S. or to petition Congress.

That is wrong; that is a ridiculous analysis. We didn't fight the Civil War to guarantee the right to diplomatic protection abroad. Everyone understood at the time of the 14th Amendment's ratification that it was meant to incorporate the entire Bill of Rights plus other innumerable undefined ones; that's not an exhaustive list of rights in the Constitution. But to get that correct reading of the language to prevail, we have to get the Court to overrule the Slaughterhouse Cases.

Reason: What sort of arguments did your opponents in McDonald make that won for them in the lower courts?

Gura: Besides relying on those 19th-century precedents to claim the Second Amendment doesn't apply to them, the defendants made a host of arguments that basically were ignoring Heller. It's like they just didn't believe Heller really came out the way it did and is the law of the land. They are in complete denial of that opinion, all their arguments are contradicted by something in Heller. I understand they don't like it and disagree with it and it's their right to do so.  But they need to accept it is the decision of the Supreme Court. They are not required to like it, but they are required to obey it.

Senior Editor Brian Doherty is author of This is Burning Man (BenBella), Radicals for Capitalism (PublicAffairs), and Gun Control on Trial (Cato Institute).