- The Washington Times - Tuesday, March 2, 2010

An attorney who won a landmark case overturning the District’s handgun ban has rankled conservatives who say a Second Amendment case he will argue Tuesday before the U.S. Supreme Court could be fodder for liberal judges to mandate constitutional guarantees for gay marriage, abortion rights or government-provided health care.

The case, arguing that the Second Amendment right to keep and bear arms should be binding on states and localities across the country, has exposed fissures in the gun rights community and drawn many liberals willing to cede the gun rights battle as unlikely allies.

Alexandria, Va., lawyer Alan Gura will argue on behalf of four Chicago residents, the Second Amendment Foundation and the Illinois State Rifle Association to overturn Chicago’s handgun ban in a case that will have far-reaching implications for state and local gun control laws.

Mr. Gura, who won the landmark 2008 District of Columbia v. Heller case in which the high court declared in a 5-4 vote that the District’s near-total ban on handguns was unconstitutional, has co-opted for the Second Amendment the liberal tactic of strategic civil rights litigation and emerged as an icon in the gun rights community, often conflicting with the National Rifle Association, which has long lobbied for legislative gun rights reforms.

At a recent moot court — a simulated court proceeding at which lawyers hone their arguments — Mr. Gura was peppered with queries by questioners at the Heritage Foundation. Observers said many in the audience at the Washington-based conservative think tank were concerned about Mr. Gura’s responses to questions touching on the political implications of his arguments.

Mr. Gura declined to comment on the moot court proceeding, saying it was one of six in which he participated before groups of varying political beliefs. But the skepticism with which his answers were met by the conservative audience is indicative of the reaction he has met among some critics.

Legal reasoning

While the Heller case turned largely on whether the Founding Fathers intended to convey an individual right to own guns, Mr. Gura’s latest case, McDonald v. City of Chicago, has less to do with the rights of gun owners than it does the question of whether the Second Amendment can be applied to the states through the 14th Amendment — a Reconstruction-era amendment defining the rights associated with national citizenship.

The amendment, and its clause guaranteeing due process of law, has been invoked by the Supreme Court as the foundation for decisions that ended racial segregation and extended protections outlined in the Bill of Rights one by one against the states to all Americans by what legal scholars call “incorporation.”

Citing the due process clause, the high court has ruled that states, in addition to the federal government, cannot infringe on the First Amendment’s right of free speech, the Fourth Amendment’s protection against unreasonable searches and seizures, the Fifth Amendment’s protection against self-incrimination and the Eighth Amendment’s prohibition against cruel and unusual punishment, among other protections spelled out in the Bill of Rights.

But, in addition to asking the high court to consider whether the right to keep and bear arms should be selectively incorporated to apply to the states through the 14th Amendment’s due process clause, Mr. Gura is asking the justices to overturn precedents that stemmed from a century-old decision involving another 14th Amendment clause, the “privileges or immunities” clause.

That clause says, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

“This is the best argument for the right to bear arms,” Mr. Gura said, noting that the privileges or immunities clause was intended to extend the protections of the Bill of Rights to all Americans and made the federal government responsible for guaranteeing those rights, rather than the states.

The privileges or immunities clause, Mr. Gura argued, was created primarily to protect recently freed slaves from oppressive and discriminatory laws enacted by some Southern states after the Civil War and was misinterpreted in an 1873 Supreme Court decision.

In a series of cases known collectively as the Slaughterhouse Cases, the high court rejected a claim by a collection of butchers that the Louisiana Legislature violated their fundamental rights of citizenship by granting a monopoly on the right to butcher animals within the city of New Orleans. In a 5-4 decision, the court ruled that the privileges or immunities clause protected only citizenship rights bestowed by the federal government.

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