McDonald v. Chicago, the Supreme Court case that will settle whether or not the Second Amendment applies to states and localities, is gearing up to radically challenge Court precedent when it comes to defending rights against state infringement.
Alan Gura, lawyer for the Chicago plaintiffs whose right to effectively defend their lives in their own homes has been abridged by the city's ban on handgun possession, previously won 2008's D.C. v. Heller, the case establishing that the Second Amendment protects an individual right to possess weapons against federal encroachment. Gura is responsible, then, for the rehabilitation and revival of one constitutional amendment already. In McDonald, rather than merely extending the Second’s reach, he is aiming to rehabilitate and revive the 14th Amendment as well.
However, the Supreme Court’s decision in late January to grant 10 of Gura’s 30 minutes of oral argument time to the National Rifle Association (NRA) seems likely to hurt chances that the Court will take the more dramatic route laid before them. The NRA isn't a plaintiff in McDonald (though they were parties in an earlier version heard by the 7th Circuit Court of Appeals, which combined separate challenges to Chicago’s gun bans), and the organization's intent is to emphasize the more limited and traditional method of incorporating the Second Amendment against the states via the Due Process Clause of the 14th Amendment.
To sum up a very complicated legal argument quickly, Gura's McDonald briefs do not rely solely on the traditional due process method. He also argued that 14th Amendment's Privileges or Immunities Clause was more clearly intended to accomplish such incorporation, in terms of both legal logic and history.
An early misstep in 14th Amendment jurisprudence back in 1873 effectively murdered that clause, however, despite the fact that its value to vindicate citizens' rights against government encroachment is vast. The significance of the clause and the Slaughterhouse Cases that killed it were explained in a December Reason column.
If the the Privileges or Immunities Clause is restored to its original meaning—and pretty much all the relevant history from the 14th Amendment’s ratification proves it was meant to do more than just protect certain rights of national citizenship, contrary to the Slaughterhouse majority—American jurisprudence would become much more respectful of both unenumerated and enumerated rights. However, that very possibility makes lots of people who are otherwise rooting for Gura uncomfortable.
As Reason’s Damon Root summed up aptly, “The 14th Amendment was specifically designed and ratified to protect a sweepingly libertarian idea of self-ownership. That idea includes the right to acquire property, run a business, and buy and sell labor without unnecessary or improper interference by the government.”
Thus, if Gura wins on privileges or immunities grounds, it will open up the full richness of the 14th Amendment’s original meaning, which makes the stakes for a victory in McDonald far higher than just preventing states and localities from stopping citizens keeping guns in their homes. It is also worth remembering, as many gun rights advocates grumbled when Heller was decided, that whether the gun right protected by that case goes much beyond the use of commonly owned firearms for self-protection in the home is a matter for future courts to decide. If McDonald is won, on whatever grounds, expect the courts to swell with challenges to the dizzying variety of ways that localities restrict gun rights.
While Gura thinks the expansive power of the Privileges or Immunities Clause is great, lots of people on the right—who otherwise support extending the right to keep and bear arms to the states—don’t. (The NRA also offered an alternative argument based on the Privileges or Immunities Clause in a brief, but its explicit purpose in horning in on the oral arguments is to stress the Due Process Clause.) A representative summation of that sort of worry comes from Ken Klukowski at the conservative web site Townhall.com:
[the] libertarian activists behind McDonald openly explain that the reason they are pushing the Court to overrule Slaughter-House has nothing to do with guns. Instead, they want to advance a libertarian economic agenda, where federal judges could sit in judgment of state and local laws involving labor, employment, business regulations and other economic issues. Although the Constitution is silent on these matters, these activists want the courts to start declaring constitutional rights against such things, and using the power of the federal judiciary to strike down laws of this sort that the judges don’t like.
Gura fought for his right to argue his case his own way, explaining in a brief to the Court that the NRA’s request relied on “unjustified” speculation that he will somehow fail to argue on due process grounds as well—despite the fact that Gura did make such arguments. Yet Gura failed to convince the Court, and with no explanation the Court gave 10 minutes of Gura’s 30 minutes to the NRA and their (very respected) hired gun, Paul Clement. Clement, in his role as U.S. Solicitor General back in 2008, argued in Heller’s hearings for the Supreme Court to rein in any individual right contained in the Second Amendment at least enough to preserve laws like the federal machine gun ban. As a result, Clement's Second Amendment bonafides are widely questioned.
Gura’s reply brief to Chicago shows a lawyer fully prepared to flay the pretty shoddy arguments advanced by his opponents from Chicago, which include arguing in effect that if we can imagine a civilized society that does not respect a certain right, then states shouldn’t be required to honor it. (Chicago also seems to believe, as Gura sums up wryly, that “ordered liberty” refers to “the government’s liberty to issue orders.”)
To legal scholars such as The Volokh Conspiracy’s Orin Kerr, who never believed the Supreme Court would seriously consider overturning Slaughterhouse, the Court giving the NRA time is further proof that a McDonald victory—which seems likely given that the Heller majority is still sitting on the bench—will certainly be on the less revolutionary due process grounds. Kerr writes that Gura’s Privileges or Immunities Clause arguments “will be more of a lively intellectual exercise than a likely basis for the Court’s decision.”
Legal scholar Josh Blackman makes an interesting case that, contra Kerr’s belief that the Court will take the less disruptive of precedent route to victory, the Court is on occasion willing to vindicate a plaintiff’s rights in a radical way even when a less radical way is open to them, particularly when lawyers try to force the Court's hand, as in 1989’s Planned Parenthood v. Casey.
The history of conflict between the NRA and Gura dates back to Heller, when the gun rights organization, fearing a loss (or, in some interpretations, fearing a victory where it could not claim credit), attempted to stymie or take over the case for years before finally jumping on board as allies in the closing stretch. Gura is openly peeved that his strategy is being questioned and his time encroached on against his will. He is, he points out, willing and able to argue the due process justification for incorporation. But the reason he dedicates only 7 pages out of 73 to it is that—as he states in his opposition brief to the NRA’s move—he knew Due Process Clause arguments would be more familiar to the justices due to the very fact that they are the more traditional means to win incorporation. (When it comes to wondering who had proven themselves most competent to make a thorough due process argument, Blackman also points out the NRA failed in its brief to note the Glucksberg test, which was used in the 9th Circuit's Nordyke decision that did recognize Second Amendment incorporation on due process grounds.)
As Gura complained in The Washington Post, the NRA is “not bringing anything substantive to the argument. The NRA is principally interested in taking credit and fundraising.”
In that same Post story, the Cato Institute’s Ilya Shapiro, who has been sharply critical of the NRA’s encroachment on Gura's arguments, was paraphrased on how the NRA/Gura conflict exemplified “the differing approaches [of] 'gun nuts,' whose sole interest is a protection of Second Amendment rights, [and] 'constitution nuts,' who think the case offers a chance to reassert the importance of the privileges-or-immunities argument.”
Some forces in the gun rights community, such as one of its oldest warriors and scholars, David Hardy, refuse to take sides between the NRA and Gura. Instead, Hardy applauds both arguments and both arguers, and begs the gun rights community to stop encouraging dissension: “They're going into the fight of their lives, no OUR lives, and don't need the distractions. We can all engage in internecine battles after oral argument, or better yet, the decision. For now they need to concentrate. Bottom line: there is no bad way to win a case.”
This is admirably ecumenical, but it elides the larger possibilities at issue in the Privileges or Immunities Clause argument (which is exactly what many in the gun rights world want): that, as Gura writes in his reply brief, “applying constitutional text as plainly intended by the Framers and understood by the ratifying public possesses high intrinsic value. Nowhere is that value higher than when enforcing basic national civil rights standards.” That is the opportunity that could be lost if the NRA’s arguing time means that the Supreme Court wants to incorporate on the old Due Process Clause grounds rather than the truly radical, yet also truly original, Privileges or Immunities Clause grounds.