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UNDERNEWS

Undernews is the online report of the Progressive Review, edited by Sam Smith, who covered Washington during all or part of ten of America's presidencies and who has edited alternative journals since 1964. The Review, which has been on the web since 1995, is now published from Freeport, Maine. We get over 5 million article visits a year. See prorev.com for full contents of our site

March 2, 2010

GUN CONTROL CASE MORE COMPLEX THAN MANY REALIZE

MATTHEW CELLA, WASHINGTON TIMES - 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 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.

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.". . .

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.". . .

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.


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