Liberals, Guns, and the Constitution


As Brian Doherty noted earlier, the Second Circuit Court of Appeals has held that the 2nd Amendment does not apply against state and local governments. In more positive gun rights news, the Constitutional Accountability Center, a liberal law firm and think tank "dedicated to fulfilling the progressive promise of our Constitution's text and history," filed a friend of the court brief last week on behalf of the plaintiffs in McDonald v. City of Chicago, arguing that the 14th Amendment's Privileges or Immunities Clause does make the 2nd Amendment applicable against the states (Alan Gura, the lawyer who argued D.C. v. Heller before the Supreme Court, is representing the plaintiffs in McDonald). Among the authors of the CAC's brief is legal scholar Michael Kent Curtis, one of the foremost experts on the history and meaning of the 14th Amendment. Curtis was also the lead author of the friend of the court brief filed last fall in Nordyke v. King, which also argued that the 2nd Amendment applies to the states via the 14th.

To put all of this in perspective, remember that until two decades or so ago, liberal legal thinkers held almost unanimously to the now-discredited collective rights interpretation of the Second Amendment. One of the earliest and most influential dissents on that side came with Sanford Levinson's 1989 Yale Law Journal article "The Embarrassing Second Amendment," which argued that liberals needed to take all of the Bill of Rights seriously. So it's great to see CAC following a similar trajectory, even if their recent study of the 14th Amendment left something to be desired.