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Gun rights lawyer gives hope to liberal causes
If the current justices side with Mr. Gura and overturn the Slaughterhouse Cases ruling, not only will states be bound to recognize the Second Amendment right to keep and bear arms, but they also will be forced to recognize the other constitutional rights that have never been applied to states, such as the Fifth Amendment right to a grand jury indictment in a criminal trial and the Seventh Amendment right to a jury in a civil trial.
Constitutional scholar Ken Klukowski warned that a ruling incorporating the Second Amendment based on privileges or immunities and overturning Slaughterhouse could have broad political implications.
“Slaughterhouse may be second only to Marbury v. Madison as the most impactful Supreme Court decision of all time,” he said. “It could fundamentally rewrite the nature of what goes on in this country.”
Mr. Klukowski wrote an amicus brief in support of Mr. Gura’s case filed by a handful of conservative groups, including the American Civil Rights Union (ACRU), a nonprofit organization founded by Robert B. Carleson, who was an adviser to President Reagan.
The group, whose policy board includes conservative legal heavyweights such as former U.S. Attorney General Edwin Meese III and former Solicitor General Kenneth W. Starr, supports incorporation of the Second Amendment through the privileges or immunities clause but asks the court not to overturn the Slaughterhouse Cases decision.
“The Privileges or Immunities Clause could be used as a source for judicial activism unlike anything America has ever seen,” the group said on its Web site.
Although some are concerned about the decision’s potential for liberal judges to seek constitutional guarantees, including those for gay marriage, abortion rights or government-provided health care, legal scholars disagree about how big the impact could be, in large part because the justices would be tasked with interpreting what a revived privileges or immunities clause would mean.
Georgetown law professor Randy Barnett, who supports overturning Slaughterhouse, said some conservatives are sensationalizing the issue. He said overturning Slaughterhouse would mean only that future courts could protect those unenumerated rights recognized prior to the drafting of the Bill of Rights.
Those rights, reiterated throughout American history, include the rights to government protection, to obtain and hold property and to sue. He said some conservatives exaggerate the effect that overturning Slaughterhouse would have because they think the court should protect only those rights enumerated in the Constitution.
“Correcting this mistake doesn’t have to be superbig,” he said. “It doesn’t have to do more than putting what the Court is already doing on a sound constitutional footing — and lining it up with history.”
Mr. Gura confronted the issue directly in an interview last year with the libertarian Reason magazine.
“Nobody has a legitimate reason to fear a faithful interpretation of the Constitution, and nobody has any legitimate reason to fear effective and complete protection of civil rights,” he said. “There are people who do fear what they might perceive to be a bad case following from the decision in McDonald, but the fact a future court might make an erroneous decision is no excuse to make an erroneous decision in this case.”
Allies and opponents
Conservatives who fear that liberals are plotting to test the court’s willingness to explore new unenumerated rights may not be simply engaging in conspiracy theories.
About the Author
Matthew Cella is The Washington Times’ Metro editor. He can be reached at firstname.lastname@example.org.
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