Skip to comments.Heller Counsel Argues for an Originalist Revolution
Posted on 11/18/2009 3:59:14 AM PST by marktwain
Alan Gura, who successfully defended the individual right to keep and bear arms under Second Amendment in District of Columbia v. Heller has now filed his brief in the case that seeks to apply that right to the states, McDonald v. City of Chicago. (Cato earlier filed a brief supporting Alans cert petition, the background to which you can read about here.)
The question presented in this case is: Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendments Privileges or Immunities or Due Process Clauses. Remarkably, only 7 of the briefs 73 pages are devoted to the Due Process Clause, which is the constitutional provision by which almost all the the Bill of Rights has been incorporated against the states. Indeed, the brief argues that the Due Process Clause has incorporated virtually all other enumerated rights and so there is no reason to make the Second Amendment an exception.
The rest of the brief is far more interesting, arguing for overturning the ill-fated Slaughter-House Cases, which eviscerated the Priviliges or Immunities Clause in 1873. Slaughter-House forced the Court to start protecting natural rights and fundamental liberties under the oddly named substantive due process doctrine and it remains a bugaboo for legal scholars of all ideological stripes. Overturning it would potentially open the door to challenges against legislation that violates a host of unenumerated rights, such as the right to enter into contract or to earn an honest living.
Understandably, libertarians are excited at the prospect of Privileges or Immunities revival. But so too are liberals, at the thought of potentially filling an empty constitutional vessel with positive rights (to health care, education, pensions, etc.). I believe this to be an overstated threat from the perspective of constitutional interpretation as opposed to legislation and have an article coming out with Josh Blackman in the Georgetown Journal of Law and Public Policy in January making this point. (The article, titled Opening Pandoras Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment, will shortly be up on SSRN, but for now you can read the abstract/introduction here.)
In any event, P or I (as its known) is a vastly superior way of giving people in the states the right to keep and bear arms for self-defense. But its ambitious to argue this way rather than settle for the traditional jurisprudence. As Orin Kerr says at the Volokh Conspiracy, Its certainly an attention-getting way to brief the case. Its not just arguing for a win: Its arguing for a revolution.
For further discussion of Alans McDonald brief which Cato will be supporting with an amicus brief next week see Lyle Denistons write-up at SCOTUSblog.
When are these reporters going to realise that we do not need to be givin a right we already have!
because they are unable to publicly recognise where our rights truly come from.