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.
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.
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.
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.
But the Supreme Court is historically hard to read.
George Washington University constitutional law professor Jonathan Turley said that after the Citizens United v. Federal Election Commission case, in which the court held unconstitutional a 62-year-old federal statue that prohibited corporations from making direct federal campaign expenditures, the justices may be less inclined to issue another ruling with historic implications so quickly.
Mr. Turley also said the divisions over McDonald resembled the divisions in the Citizens United case. That case, he said, divided liberals who disagreed with the policy implications but supported the reinforcement of free speech. He said he expects the Supreme Court to incorporate the Second Amendment, which he thinks is the right decision, but is less likely to overturn Slaughterhouse.
“That is already a lot of water to carry for the majority. I’m not sure they’re going to want to add to it by overturning Slaughterhouse,” he said. “But that’s a possibility.”
If Slaughterhouse is overturned, Mr. Turley said, the effects will be far less dramatic than conservatives and liberals have projected, adding that “both sides may be exaggerating the impact of full incorporation.”