Civil and Human Rights

Beyond the Second Amendment: Can Gun Enthusiasts Help Progressives Secure Fundamental Rights?

While many progressives wait—fingers crossed—for confirmation that reasonable gun regulations will survive the Supreme Court’s decisions in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), which held that the Constitution protects an individual right to keep and bear arms against federal and state infringement, respectively, we shouldn’t overlook a possible, positive consequence of these rulings: an enhanced appreciation of the Constitution’s protection of individual substantive rights.

I wouldn’t look for NARAL and the NRA to begin holding joint events anytime soon, but some gun rights advocates have started to recognize the sympathy between arguments that support individual fundamental rights at the heart of a progressive vision of the Constitution, such as the constitutional right to reproductive choice, and arguments that support a right to possess a gun for self-defense.  For example, in the brief for the challengers to Chicago’s gun control laws, which were eventually struck down in the McDonald case, the argument in support of constitutional protection of a right to keep and bear arms to defend oneself in one’s home was expressly linked to privacy rights, the right to bodily integrity, freedom of reproductive choice, and personal autonomy (including sexual autonomy).  McDonald’s brief cites Supreme Court cases central to the protection of fundamental constitutional rights progressives hold dear: Roe v. Wade, Griswold v. Connecticut, and Lawrence v. Texas.  Putting the progressive and gun-rights perspectives together, the rights of heart and home protected by the Fourteenth Amendment thus include the right to choose one’s spouse, the right to decide to form a family (or not), and the right to have the means to defend that home and family (and self) if necessary.

We may also find a surprising ally in our efforts to prevent the Roberts Court from eroding the Constitution’s procedural protections.   For example, gun enthusiasts and progressives have found a common enemy in judicial doctrines that limit the ability of citizens to sue state officials who have violated their constitutional rights.  In a decision loathed by many in the public interest legal community for its overly broad application, the Supreme Court ruled in Heck v. Humphrey (1994) that civil rights actions based on constitutional violations that necessarily imply the invalidity of a criminal conviction may not be pursued unless the conviction is first overturned or expunged through other means (such as habeas corpus).  As anyone who works on prisoners’ rights issues will tell you, many lower courts have over-interpreted Heck to bar all sorts of claims of constitutional injury.  Now, perhaps, the effect of Heck could be blunted because Second Amendment enthusiasts are shooting at it.

In a petition for Supreme Court review now pending, two gun-shop owners are challenging Heck and the limits placed on their ability to enforce their constitutional rights through civil rights actions.  Zoltan and Helene Szajer used to own a licensed gun shop, L.A. Guns, before they were arrested following a sting operation by the LAPD.  The Szajers allege that the LAPD had a policy of targeting gun stores in order to shut them down, but, more important, they also claim that the police officers searched their business without a warrant, in violation of their Fourth Amendment right to be free from unreasonable searches and seizures.  The Szajers have asked the Supreme Court to reject the lower courts’ overly broad reading of Heck and rule that they may seek compensation for this alleged violation of their constitutional rights in a civil rights lawsuit.

CAC, a progressive organization, has supported the Szajers petition (read our brief here).  Our decision to file a brief in support of Supreme Court review was not related to the gun aspect of the Szajers’ case, but rather because of the fact that the case implicates fundamental issues of access to justice.  Constitutional history suggests that civil rights lawsuits, like the Szajers’ Section 1983 action, were considered an important complement to the Constitution’s textual protections of fundamental rights; the drafters of our Constitution, from the Founding through Reconstruction, considered such civil suits crucial to preserving liberty and preventing government overreaching.  This is true whether we are talking about the constitutional rights of gun store owners to be free from warrantless searches and seizures or the rights of prisoners to due process.  If the Szajer case causes gun enthusiasts to become more focused on ensuring the availability of civil remedies for constitutional violations, it is likely to help progressives working to achieve the same end.  It may also help Americans of all political stripes better appreciate the Constitution’s protection of individual rights and liberty.

Of course, even if one takes the cynical view that savvy gun-rights lawyers are simply tying gun rights to rights generally championed by progressives in order to make it more difficult for liberals to oppose Second Amendment rights, that tactic works both ways.  Particularly with the current Supreme Court controlled by a conservative majority that unquestionably supports individual Second Amendment rights, progressives should be open to opportunities to join forces with Second Amendment advocates to advance liberty interests we have in common.

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