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Gun rights lawyer gives hope to liberal causes
A frequently cited report by the Constitutional Accountability Center’s David H. Gans and Douglas T. Kendall predicted that a “historic debate over the meaning of the privileges or immunities clause is very likely coming, and progressives need to participate to ensure an appropriate construction of the clause.”
“They cannot afford to absent themselves simply because the first beneficiary of the demise of Slaughterhouse may be a conservative cause, Second Amendment rights,” the report says.
In November, the left-leaning center — an unlikely ally — filed an amicus brief with the Supreme Court in support of Mr. Gura on behalf of eight constitutional scholars from across the ideological spectrum. The brief was among a series of filings in the case that blurred the lines between traditional gun rights allies and opponents.
Some of the briefs, like the ACRU brief, support the McDonald case but attempt to undermine its principal argument.
A brief by a group called Arms Keepers that describes itself as a “volunteer organization that supports reasonable regulation of handguns and rifles, instead of prohibition,” similarly asked the court to rule in favor of the petitioners based on the privileges or immunities clause but without overruling the Slaughterhouse precedent.
An amicus brief in support of Mr. Gura’s case filed by the American Legislative Exchange Council — a nonpartisan organization made up of about 1,500 state legislators — noted that overturning Slaughterhouse would be unnecessarily destructive of court precedents.
The National Rifle Association filed its own case seeking to overturn the Chicago gun ban based on the more traditional constitutional argument that it violates the due process clause of the 14th Amendment.
Stephen P. Halbrook, the constitutional lawyer who brought the NRA case, said that after the Heller decision, he would be “somewhat surprised” if the court did not incorporate the Second Amendment.
While he thinks the most effective way would be to incorporate through due process, he filed an amicus brief on behalf of the NRA in support of Mr. Gura’s argument that also defends overturning the Slaughterhouse decision. He said the goal of the NRA is to see the Second Amendment incorporated against the states, and he acknowledged the concerns of opponents.
“They’re basically predicting the sky would fall,” he said. “I don’t think the sky would fall.”
In January, the court opted to grant some of Mr. Gura’s time during oral arguments to the NRA. While the court does not explain its decisions, Mr. Halbrook speculated that the justices might want to ensure the due process argument is adequately represented.
A plausible reading
Some of the country’s top constitutional scholars agree with Mr. Gura that the court misinterpreted the 14th Amendment almost 150 years ago.
Harvard University law professor Laurence H. Tribe wrote in 1999 that the Slaughterhouse decision “incorrectly gutted the privileges or immunities clause.” Yale University law professor Akhil Amar expressed a similar sentiment in a 2001 Pepperdine Law Review article.
The Supreme Court also has hinted that it may be willing to revisit the issue. In a 1999 ruling that touched on the privileges or immunities clause, Justice Clarence Thomas, in a dissenting opinion, signaled his interest in reconsidering its meaning in a more fitting case.
About the Author
Matthew Cella is The Washington Times’ Metro editor. He can be reached at firstname.lastname@example.org.
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