(Page 2 of 2)
Even groups that support Gura's strategy of relying on the Privileges or Immunities clause to incorporate the Second Amendment urge caution. The brief filed by Arms Keepers notes that the Court must take care to “ensure that a revived Privileges or Immunities Clause will not become a Frankenstein’s Monster in later jurisprudence.” Thus, the brief asks the Court for “an interpretation that incorporates fundamental enumerated constitutional rights and nothing else."**
A brief from a group of state legislators also openly rejects the notion that the Court need explicitly overrule Slaughterhouse to incorporate the Second Amendment via the Privileges or Immunities Clause, arguing that the economic rights at issue in that 19th century case should not be considered an enforceable privilege or immunity.
Gura counters that “Nobody has a legitimate reason to fear a faithful interpretation of the Constitution, and nobody has any legitimate reason to fear effective and complete protection of civil rights. There are people who do fear what they might perceive to be a bad case following from the decision in McDonald, but the fact a future court might make an erroneous decision is no excuse to make an erroneous decision in this case.”
There are deeper political and ideological streams beneath some Second Amendment fans' disquiet with the Slaughterhouse strategy. “I think clearly some of these people [who want McDonald to win without overturning Slaughterhouse] are not really interested in securing the right to arms,” Gura thinks, “so much as they are interested in constraining civil rights in other ways.”
Some libertarian scholars, though, have never liked the idea of using the 14th Amendment to impose federal power over state law, whether or not the specific result might be one that extends rights in a salubrious direction. For example, Gene Healy, now with the Cato Institute, wrote in 1999 that “in practice, the Fourteenth Amendment has often operated as a grant of legislative and executive power to judges. And that power has been used to violate the very rights it was meant to secure.” Healy also noted a disturbingly high number of law students seeing “in the Fourteenth Amendment an irresistible engine for reshaping society along egalitarian lines.”
Libertarian philosopher Roderick Long noted, in the context of the Kelo eminent domain case, that “I am opposed to giving the Federal government the power to impose libertarian standards on the States, for the same reasons that I would oppose giving the United Nations the power to impose libertarian standards on the U.S. This is not because I think federalism takes precedence over individual rights, but rather because I think federalism is a better long-run strategy for protecting individual rights.”
Orin Kerr, a legal analyst writing at Volokh.com, thinks that Gura is neglecting his specific responsibilities towards the gun rights question at issue and is doing some libertarian wish fulfillment overreach when it comes to overturning Slaughterhouse. “Most Supreme Court briefs focus on trying to win the case,” Kerr wrote, “whereas this brief seems to treat that as an afterthought and instead is trying to use this case to achieve a long-time goal of the libertarian legal movement.”
Kerr thinks there is no way the current Supreme Court will accept Gura’s arguments. Kerr’s colleague at Volokh.com, the anarcho-libertarian legal theorist Randy Barnett, thinks Kerr's points don't hold up. First, Barnett notes that the Court had a chance to take up the National Rifle Association’s challenge to the same Chicago laws, a challenge that did not rely so heavily on a Privileges or Immunities Clause argument. Yet the Court chose to hear Gura’s argument, indicating they might not be as contemptuous of such thinking as Kerr guesses.
Also, Barnett notes that Kerr’s claims are “based in what he thinks will be the Justices’ dislike for the interpretation of the Privileges or Immunities Clause described in the brief. The conservatives will hate the references to ‘natural rights’ while the liberals will hate the references to ‘property.’ Fair enough. But notice that the brief does not offer Alan Gura’s theory of the Privileges or Immunities Clause. All the phrases to which Orin objects are taken from quotes from the historical sources. Was Gura supposed to conceal these sources from the Court or faithfully report them?”
Gura also thinks Kerr’s take on the strategy is mistaken. Gura tells me that he’s merely asking the Court to actually deal with the explicit language and meaning of the 14th Amendment. “It is always helpful when the Court decides cases based on the Constitution’s text and history. That way even those who might disagree can take comfort in knowing the Court actually addressed the meaning of the Constitution. It would make not just the opinion in McDonald more stable and accepted, generally speaking this approach increases people’s confidence in the Court. And we could get the 14th Amendment that we’ve always been meant to enjoy.”
It’s possible—legal analysts such as Kerr think it likely—that some of the pro-Slaughterhouse amici will get their way, and McDonald will be won on more traditional substantive due process grounds (the means through which other elements of the Bill of Rights have been incorporated against the states). Gura’s brief offers that argument as well, and if he wins that way, it would be a far less surprising victory than one based on killing Slaughterhouse.
If McDonald is won without the death of Slaughterhouse, it will still be a cheering victory for a core constitutional right. But if Gura wins the way he wants to win, he will have succeeded in creating a constitutional revolution of sorts, one with both promise and peril for keeping government power within prescribed limits.
Timothy Sandefur, a lawyer with the Pacific Legal Foundation who worked on a joint brief between that group and the Cato Institute, knows that a revived Privileges or Immunities Clause could be problematic in certain hands, noting especially that some progressive lawyers will surely use it to argue for some federal welfare rights allegedly contained within it. “But the left is going to do that anyway; they can also argue for welfare rights under equal protection and due process. There is no need [for supporters of a classical liberal vision of rights] to tie our hands because of a fear the left is going to abuse” the Privileges or Immunities Clause.
**An earlier version of this article incorrectly stated that the Arms Keeper Brief called for overturning Slaughterhouse. It does not.