The Supreme Court Takes on Guns, Again

Heller lawyer Alan Gura revived the Second Amendment. Can he do the same for the 14th?


It has been only a year and a season since the Supreme Court shook the world of Second Amendment jurisprudence with the historical D.C. v. Heller decision. In that case, the court declared for the first time that the Second Amendment protects an individual right to bear arms against infringement by the federal government—at least commonly used arms, for self-defense in the home.

Heller opened the gates for a flood of new lawsuits by gun-rights friendly attorneys and organizations, most prominently the National Rifle Association and the Second Amendment Foundation. One of those cases, McDonald v. Chicago, challenging a gun ban in Chicago that's similar in most respects to the D.C. gun laws overturned in Heller, has just been taken up by the Supreme Court.

The counsel who will be arguing McDonald before the court in early 2010 is the same man who won Heller, Alan Gura. Although McDonald's challenge to Chicago's laws has so far lost at both the district court level and at the 7th Circuit Court of Appeals, Gura is confident he'll win.

The Chicago laws at issue are as significant a violation of a citizen's right to bear arms as were D.C.'s. Chicago residents can't have a gun without registration, can't register handguns, can't register a gun that's already in their possession, and if they miss a yearly deadline to re-register, that weapon becomes forever unregisterable. Gura and the Second Amendment Foundation (with the Illinois State Rifle Association) have pulled together a set of plaintiffs with personal tales of having their quality of life lessened by the gun ban.

Lead plaintiff Otis McDonald has a habit of calling the cops when he sees gang activity in his neighborhood; this has led some neighborhood kids to threaten and intimidate him. Another plaintiff, Colleen Lawson, recently had three men break into her home. Both McDonald and Lawson insist that having a handgun in their home would increase both their safety and peace of mind.

Following Heller, it might seem clearcut that Chicago's gun control laws should meet the same fate as those in Washington, D.C. So why hasn't it worked out that way? The reason is that the Second Amendment, rare among the fundamental rights laid out in the Bill of Rights, has never been held to apply to actions of any government entity other than a federal one. (Of course, it wasn't even considered to do that until Heller.) In the legal lingo, the Second Amendment has not been "incorporated" against states and localities via the 14th Amendment. By contrast, the First Amendment (Gitlow v. New York), Fourth Amendment (Mapp v. Ohio), and others have been (but not, yet, the Third or Seventh). Furthermore, there is currently some disagreement on this question among different districts of the federal appeals court system.

The 7th Circuit has said no in various challenges to Chicago area gun laws, as has the 2nd Circuit, in the Maloney case. The 9th Circuit, however, earlier this year in the Nordyke case said that the Second Amendment does indeed bind states and localities—though the 9th Circuit recently heard another round of arguments in that case and has decided to postpone its decision until after the Supreme Court decides McDonald.

Yet as Gura has demonstrated at length in his McDonald filings—as have numerous gun-rights scholars, particularly Stephen Halbrook—the top concerns of the drafters and ratifiers of the 14th Amendment in 1868 were the ways the rights of African-American citizens were being violated with impunity in the post-Civil War South, often with the eager cooperation of local and state officials.

Among the fundamental rights noted by the amendment's boosters was the right to bear arms. The 14th Amendment's Senate sponsor, Jacob Howard, referred to the need to protect "'the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as freedom of speech and of the press;…the right to keep and bear arms….' Howard averred: 'The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.'"

The 14th Amendment contains two phrases that could be used to protect individual rights against state and local government encroachment. The one that seems most clearly designed to do so is what Sen. Howard referred to above as "the first section," the Privileges or Immunities Clause, which says "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

However, that clause has been a dead letter in American jurisprudence since the Supreme Court's 1873 decision in The Slaughterhouse Cases, an incredibly convoluted set of challenges to a legal slaughterhouse monopoly in New Orleans.

As Gura summed up the dire result of that case to the Privileges or Immunities Clause in a July interview with me, it "declared pretty much that the only privileges and immunities protected by the 14th Amendment are those of national citizenship, rights that accrue out of the existence of the federal government, like the right to a passport or right to travel the waterways of the U.S. or to petition Congress." This made it forever useless as a tool to vindicate the sort of rights that the 14th Amendment's drafters intended.

As libertarian-leaning constitutional scholars Kimberly C. Shankman and Roger Pilon argued in a 1998 paper for the Cato Institute that examined, and attacked, the courts' long history of suppressing and ignoring the Privileges or Immunities Clause, the clause's purpose was to "mak[e] explicit the implicit connection between natural rights and constitutional government." And as Damon Root has written for Reason, "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."

That's exactly why so many jurists of all persuasions have been hesitant about reviving it as an active part of contemporary jurisprudence, although nearly all legal scholars agree that the Slaughterhouse interpretation of the clause was dead wrong. One encouraging sign that the Supreme Court might be ready to rethink it is Justice Clarence Thomas's declaration in his Saenz dissent in 1999 that he "would be open to reevaluating [the Privileges or Immunities Clause's] meaning in an appropriate case." Gura may have given him the case he's been waiting for.

Gura, who hopes to raise the clause from the grave with his McDonald arguments, thinks possible misuse of the doctrine is no reason not to embrace it where it's appropriate. "If the Privileges or Immunities Clause guarantees certain unenumerated rights and those rights are violated, then great, have those rights vindicated! But if people file unmeritorious litigation [using Privileges or Immunities Clause arguments] that that litigation will not succeed, the courts will do their job, and that wave of misguided litigation will subside," he says. "A fear that people will try incorrect things [inspired by a revived Privileges or Immunities Clause] is not a reason to keep interpreting it the wrong way today."

Gura may be shooting for the moon in asking the Supreme Court to finally knock down Slaughterhouse after all these years. Fortunately, victory for him and the citizens of Chicago does not depend on this risky strategy. He's leaving room in his arguments for the court to decide in his favor through the means they've used to selectively incorporate the Bill of Rights since the premature death of the Privileges or Immunities Clause—the Due Process Clause of the 14th Amendment, which has come to mean not merely the procedures used by government but "substantive" due process as well.

As Gura writes in the McDonald petition, following the general ruling standard on selective incorporation from the 1968 Duncan case, the Second Amendment should definitely pass muster: "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,'….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."

By all of those standards, as the 9th Circuit agreed in Nordyke, the Second Amendment should bind Chicago. The Supreme Court even suggested in its Heller decision that it is time to move beyond the apparent dominant precedent, 1876's Cruikshank decision, for denying Second Amendment incorporation, noting that "Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases."

The Supreme Court had three different cases petitioned to them this session dealing with Second Amendment incorporation. While the Court didn't explain why it chose McDonald, it also hasn't officially rejected the other petitions on gun rights cases. Second Amendment scholar and activist Dave Kopel notes that "When the Court takes a case, it's common for the Court to hold related cases in reserve. The certiorari grant in McDonald v. Chicago leaves NRA v. Chicago & Oak Park in reserve, in case some unexpected procedural problem arises with the McDonald case. In the unlikely event that the Chicago city council comes to its senses and repeals the handgun ban, the residual case of NRA v. Oak Park remains available to the Court. In the very unlikely event that the governments of Chicago and Oak Park both wise up, the Supreme Court has also retained Maloney v. Cuomo (about a N.Y. State ban on nunchaku) in reserve." The Court likely went for one of the Illinois cases over Maloney because, unlike with Maloney, the Illinois cases don't have the added complication of requiring the Court to decide whether nunchaku count as constitutional arms.

Gura's official brief will be filed with the Supreme Court in mid-November; Chicago will then have a month to file a response. Hearings and a decision will follow in 2010. Gura is especially pleased by an amicus brief already filed in the case signed by 33 state attorneys general arguing that, yes, the Second Amendment should restrict them and their state governments. Gura finds 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.' You don't see that very often; it's rare to see a government official claiming they should be bound by some constitutional limitation."      

The state attorneys general were also bold enough to bring up a classic gun rights argument that's often mocked by liberal intelligentsia—the idea that weapon rights aren't just about self-defense against crime, but are also about defense against tyranny: The brief states 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."

If Gura's brave gambit on the Privileges or Immunities Clause succeeds, the entire structure of American jurisprudence could shift in very interesting ways. We will undoubtedly see a wave of critics attacking "judicial activism" as citizens use this revived tool to defend their rights, as well as complaints from across the ideological spectrum as rights both personal and economic are brought before the courts. But more importantly, courts will once again hold a weapon they should never have laid down in the first place, one that allows them to defend from majoritarian tyranny the many rights of American citizens not explicitly and specifically laid out in the Bill of Rights.

Senior Editor Brian Doherty is author of This is Burning Man (BenBella), Radicals for Capitalism (PublicAffairs) and Gun Control on Trial (Cato Institute).