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Observers who were eager for just such a re-examination were then miffed when the NRA petitioned the Court for oral argument time in Gura’s case so it could present a claim based on the Due Process Clause, which it considered the more viable strategy. The Court gave the NRA 10 minutes of Gura’s original 30. Gura, who was ready to present his own due process argument, resented the NRA for horning in on his turf and time, especially since the group had been similarly obstructionist in Heller, only coming on board as an ally when the case reached the Supreme Court.
In Gura’s McDonald brief, he explained that if the Court followed the standard for incorporation laid out in the 1968 case Duncan v. Louisiana, the Second Amendment definitely should make the cut. “The modern incorporation test asks whether a right is ‘fundamental to the American scheme of justice’…or ‘necessary to an Anglo-American regime of ordered liberty,’ ” he wrote. “Duncan’s analysis suggests looking to the right’s historical acceptance in our nation, its recognition by the states (including any trend regarding state recognition), and the nature of the interest secured by the right.” Given America’s history with guns, the gun rights provisions in 44 state constitutions, the decades-long trend toward fewer restrictions on the right to carry concealed handguns in public (with over 40 states now allowing such carrying for any citizen who meets simple objective standards, or with no restrictions whatever, compared to only eight such states in 1986), and the importance of self-defense to civilized life, Gura thought this argument was a slam dunk. By contrast, Chicago’s brief argued that if we can imagine a civilized society that does not respect a certain right, that right must not be fundamental and states shouldn’t have to respect it.
Gura garnered 57 amicus briefs from across the political and ideological spectrum supporting incorporation of the Second Amendment, including one signed by 33 state attorneys general. Gura found it “gratifying to see state attorneys general who will come out and say, ‘We understand it’s better if our states are bound by this right.’ It’s rare to see a government official claiming they should be bound by some constitutional limitation.” The state law enforcement officials brought up a classic gun rights argument often mocked by liberal intellectuals: that a well-armed citizenry is a safeguard against tyranny as well as crime. Their brief stated that “the right to bear arms provides the foundational bulwark against the deprivation of all our other rights and privileges as Americans—including rights that have already been incorporated against the States by this Court.”
The Conclusion and the Concurrence
The possibility of resuscitating the Privileges or Immunities Clause generated the biggest buzz around McDonald going into March’s oral arguments. Although nearly everyone expected that the five justices who upheld the Second Amendment in Heller would apply it to the states, legal scholars across the ideological spectrum who agreed Slaughterhouse was a bad decision were eager to see if the Court would make the more daring move of saying so.
But the biggest moment for Gura’s gambit came in a dismissive laugh line from Scalia, who has long been critical of substantive due process and whose professed originalism should have made him receptive to a privileges or immunities argument.
“Mr. Gura,” Scalia said early in the hearing, “do you think it is at all easier to bring the Second Amendment under the Privileges and Immunities Clause than it is to bring it under our established law of substantive due process? Why are you asking us to overrule 140 years of prior law, when you can reach your result under substantive due [process]? Unless you are bucking for a place on some law school faculty.”
Scalia, who called the Privileges or Immunities Clause “the darling of the professoriate,” decided he’d rather go with the precedential flow than vindicate the intentions of the 14th Amendment’s enactors. Although he thinks substantive due process is “wrong,” Scalia said, he has “acquiesced” to it. During the oral arguments, none of the justices showed the slightest interest in re-examining the Privileges or Immunities Clause, leaving unanswered the question of why they had chosen to review a case that emphasizes it.
The Court did, as expected, rule that states must obey the Second Amendment, and the majority opinion by Justice Samuel Alito relied on the Court’s usual substantive due process analysis, saying “there is no need to reconsider” the Slaughterhouse Cases. But Gura’s privileges or immunities argument did get a vindication of sorts. In a concurring opinion, Justice Clarence Thomas attacked the due process approach to incorporation as ahistorical, textually ungrounded, and unprincipled, noting that “neither side argues that the meaning they attribute to the Due Process Clause was consistent with public understanding at the time of its ratification.” Laying out the history of the 14th Amendment’s ratification, Thomas argued that the “privileges or immunities of citizens” were understood to include the protections in the Bill of Rights as well as additional, unenumerated rights.
Libertarian legal thinkers welcomed Thomas’ analysis with enthusiasm, hoping it was a sign of things to come. After all, Progressive-era doctrinal victories such as “rational review” of violations of constitutional rights had evolved over generations from being the opinion of a few radicals to the dominant ethos of American law. Randy Barnett, a libertarian lawyer thrilled by Thomas’ concurrence, points out that “It took 25 years for Justice Powell’s lone 1978 opinion in Bakke—in which he accepted ‘diversity’ as a rationale for affirmative action in schools—to be adopted by a majority of the Court.” Revolutions in American jurisprudence can and do happen, and several non-ruling but well-thought-out Supreme Court concurrences and dissents laid the roots for later ruling doctrines. Justice Oliver Wendell Holmes’ dissent in Abrams v. U.S. (1919), for example, shaped a more serious consideration of the First Amendment in later cases. Perhaps Thomas’ lonely pro–Privileges or Immunities concurrence will play a similar role in the future.
But even then, the progressive/libertarian pro–Privileges or Immunities coalition that Gura gathered will still have plenty to fight about. Douglas Kendall of the Constitutional Accountability Center, a progressive group that was one of Gura’s allies in the fight to revive the clause, told me that while he and almost every other living legal thinker agrees the reasoning in Slaughterhouse was bad, he doesn’t disagree with the result, that is, the upholding of a pro-monopoly law. Allowing free competition in any line of business is not something he thinks the 14th Amendment’s framers meant by “privileges or immunities.” So the fight over the clause’s meaning will continue.
The Constitution and the City
The majority opinion in McDonald could not have been clearer: Second Amendment “incorporation does not imperil every law regulating firearms.” Writing at SCOTUSBlog right after the decision came down, UCLA law professor Adam Winkler noted: “Since Heller, there have been approximately two hundred federal court decisions on the constitutionality of gun control under the Second Amendment. Nearly every challenged gun law has survived.…Other than a complete ban on handguns—which, apart from Chicago and its suburbs, no state or city has—gun control remains constitutionality permissible.”
What sort of gun laws might be successfully challenged in the wake of McDonald? Winkler suggested “New York City’s extreme and discriminatory permitting scheme and California’s refusal to approve certain guns designed for left-handed shooters.” George Mason University law professor Nelson Lund thinks that a blanket ban on carrying weapons in public would be overturned as well, but few state restrictions go that far. UCLA professor Eugene Volokh says that laws barring people between the ages of 18 and 20 from owning guns are likely to fall. But Volokh cautions overexcited gun rights activists to remember that not every restriction on a constitutional right will be deemed unconstitutional.
There is so much language in Heller and McDonald allowing for the constitutionality of reasonable regulations, says Moritz College law professor Douglas Berman, that “a court looking for a way to justify a gun regulation that is not a complete ban can come up with a basis.” If judges don’t want to justify a regulation, of course, they might decide to overturn it now. Given the ideological range among federal judges, we will surely see more circuit splits on gun issues, giving the Supreme Court further opportunities to define the parameters of the right to keep and bear arms. Important questions about the appropriate standard of scrutiny in Second Amendment cases are still up in the air.