Civil and Human Rights

Handgun Case Creates Odd Alliances


Conservative and Liberal Groups Join in Urging the Supreme Court to Strike Down Two Illinois Gun Bans Next Month

A Supreme Court argument on gun rights slated for next month is creating strange bedfellows between conservatives and liberals and pitting gun-rights groups against each other.

The court will consider March 2 whether the Constitution blocks states from restricting handguns. The case could further rework arms regulations in the aftermath of the court’s 2008 decision to strike down a law for violating the Second Amendment for the first time.

 That decision invalidated the District of Columbia’s handgun ban for infringing what the court called an “inherent right to self-defense.” The capital’s peculiar status as a federal enclave, however, left unclear the implications for state law.

 The Supreme Court will hear arguments over that question in challenges to handgun bans in Chicago and Oak Park, Ill., weighing whether the principle it set for Washington, D.C. also applies to states and local communities. The issue has scrambled traditional alliances, as gun-rights groups battle each other over how to argue the case, and some left- and right-leaning legal theorists unite over how to interpret the Constitution.

Yet the Constitutional Accountability Center, a liberal advocacy group with ties to members of the Obama administration, is also urging the justices to strike down the Illinois gun bans. The center says the case allows the court to correct a poor constitutional interpretation from the late 19th century and that establishing a federal right to self-defense could open the door to progressive readings of individual rights in future cases.

 Alan Gura, the conservative attorney who will present the lead arguments at the Supreme Court against the Illinois laws, embraces that theory as well, but with a different aim. He maintains that a victory in the gun cases could pave the way for future rulings bolstering property rights and libertarian views that limit government power.

 The National Rifle Association, which also challenged the Illinois gun laws, shares Mr. Gura’s ultimate goal, but Mr. Gura’s legal arguments puts them at odds. The NRA is primarily interested in expanding gun rights rather than broader constitutional doctrines.

 Justice Scalia wrote the majority opinion that invalidated Washington D.C.’s handgun ban, but in a 1997 book he wrote that the Second Amendment “properly understood, it is no limitation upon arms control by the states.” Above, Scalia speaks at Ohio State University in Columbus, Ohio, in November.

 In judging the justice’s stances, most enigmatic may be that of Antonin Scalia, who wrote the majority opinion in the District of Columbia case.

 In a 1997 book, “A Matter of Interpretation,” Justice Scalia wrote that he viewed “the Second Amendment as a guarantee that the federal government would not interfere with the right of the people to keep and bear arms.”

 Yet, this next passage gives court watchers some pause. “Of course,” Justice Scalia continued, “properly understood, it is no limitation upon arms control by the states.”

 Now a claim to the contrary—that the Second Amendment does limit arms control by the states—is pending. Justice Scalia declined to comment through a court spokeswoman.

 Constitutional-law scholar Christopher Eisgruber, the provost of Princeton University, said that if Justice Scalia still believes what he wrote, he will let the local gun-control laws in Illinois stand. Mr. Eisgruber notes that conservatives have generally been skeptical of the reasoning liberal justices have employed to expand the sweep of individual rights under the Constitution.

 Others, such as Harvard law professor Laurence Tribe, say that modern methods of constitutional interpretation would allow Justice Scalia to apply the Second Amendment to strike down state gun controls, regardless of its original meaning in 1791.

 Should the Supreme Court overturn an 1886 precedent and strike down state and local gun-control laws? Weigh in at

Before the Civil War, courts held that the Bill of Rights limited only federal powers, permitting states to impose greater restrictions on their residents. The 14th Amendment, ratified in 1868, gave Congress power to ensure states did not “abridge the privileges or immunities of citizens” or “deprive any person of life, liberty, or property, without due process of law.”

 During the backlash to Reconstruction, the Supreme Court took a narrow view of the 14th Amendment and in 1873 effectively mooted the “privileges or immunities” clause. In 1886, the justices held that the Second Amendment did not limit state powers.

 In the 20th century, the court came to view some rights as “fundamental” liberties protected from state infringement by the 14th Amendment’s Due Process Clause.

 Many constitutional lawyers believe that the court erred in 1873. Mr. Gura hopes that the justices will find that armed self-defense is a “privilege or immunity” of citizenship, resurrecting the clause from the constitutional graveyard.

View the original article here.


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