March 2, 2010
Today (3/2/10), the Supreme Court heard arguments as to whether the 2nd Amendments right for individuals to keep and bear arms against the federal government can be applied to the States. The case is McDonald v. City of Chicago, and it made some news in a page one, above-the fold story in the Washington Times today (Matthew Cella, Gun Rights Lawyer Gives Hope to Liberal Causes.). All conservatives want the Supreme Court to hold that the Second Amendment should be applied to state and municipal laws.
The main issue is how you link the Second Amendment to protections against the states. (There is a long legal story here involving the Fourteenth Amendment and what is known as incorporation doctrine.) The lead attorney for the conservative side, Alan Gura, wants the Court to let the Second Amendment operate via a particular constitutional provision the Fourteenth Amendments Privileges or Immunities Clause that has been dormant for 137 years. The Family Research Council joined an amicus brief arguing AGAINST this position saying that reviving this clause would be like Christmas-come-early for judicial activists. One of the lead attorneys on the amicus brief, Ken Klukowski, is quoted in the Times piece:
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. Guras 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.
Please take a look at our amicus brief link provided above to see the entire argument.