Elizabeth Wydra, chief counsel for the liberal Constitutional Accountability Center, has a great post at the legal blog Balkinization arguing that liberals should think twice before backing Chicago’s gun control laws in the upcoming Supreme Court case McDonald v. Chicago:
In the city’s attempt to preserve its weapons ban, it proves too much, essentially urging the Supreme Court to find that protection of the Bill of Rights and other fundamental liberties against state infringement has no basis in constitutional text or history, and is instead achieved solely by judicial implication. To make matters worse, Chicago’s brief makes common cause with precedent that has been properly labeled by civil rights leaders as “among the most misdirected in the history of the Court” and celebrates a post-Civil War Court that looked the other way while Jim Crow perpetuated decades of discrimination and violent rights suppression. Accordingly, even gun-control advocates, who might otherwise support the city’s argument in this case, should think twice about selling out substantive rights protection in order to protect gun laws.
That’s exactly right. One of the precedents Chicago cites is United States v. Cruikshank (1875), where the Supreme Court, following its disastrous Slaughterhouse decision of 1873, held that neither the First Amendment nor the Second Amendment applied against state and local governments. Keep in mind that the Supreme Court has now been applying the First Amendment against the states since 1925’s Gitlow v. New York, which means that Cruikshank is a dead letter when it comes to free speech. So why should the case hold any more weight when it comes to the right to keep and bear arms? More to the point: Why should the Second Amendment receive any less respect than the First?