March 02, 2010

Gun Case Tied to Looming High Court Vacancy

By the end of June, the Supreme Court will make headlines at least twice. Once when Justice John Paul Stevens announces his retirement, setting off a frenzy of speculation about possible replacements followed by a hard-fought confirmation battle. And once when the Court decides whether gun rights are protected at the state and local level in McDonald v. Chicago, the landmark Second Amendment case being argued today (CFJ submitted an amicus brief in the case). Perhaps the most interesting story is the important connection between the two events.

As CFJ Executive Director Curt Levey pointed out in an op-ed earlier this term,
“[The gun rights issue] stands out, not only for its legal significance, but also for the role it will play in future High Court confirmation fights. … [I]n several ways, it’s the new abortion. … [T]he Chicago case reminds gun owners that their battlefield has shifted to the courts and hastens the profound change in the politics of judicial confirmations that began this summer … [when] gun owners – from the grassroots to the National Rifle Association – jumped into a Supreme Court confirmation contest for the first time in history.”
Levey elaborates on the abortion analogy:
“Abortion rears its head in virtually every Supreme Court or hotly contested lower court confirmation contest. Gun rights will now do the same, especially as the explosion of Second Amendment litigation guarantees that more and more judicial nominees will have relevant rulings, briefs, articles, and speeches to scrutinize and debate. … [T]he new, gun-owning gorilla in the [hearing] room matches the pro-life movement in numbers and surpasses it in ability to influence moderate Republican and Democratic senators. And there’s no comparable countervailing force on the other side.”
Having gotten its feet wet last summer, the Second Amendment community will be ready should there be any hint of hostility to gun rights in the record of Obama’s next Supreme Court nominee:
“Next time around, gun owners – from the NRA down to the grassroots – will be more focused on the importance of judicial nominations, more educated about the politics of the confirmation process, more sophisticated about influencing the outcome, quicker to the draw, and more aggressive. Even red and purple state Democratic senators will have to seriously consider voting against judicial nominees who appear less than sympathetic to the Second Amendment.”
Red and purple state Democrats who voted to confirm Sonia Sotomayor are likely hoping that she votes in favor of gun rights in McDonald. Otherwise, they’ll have to explain to the folks back home why they supported a Justice bent on denying those folks’ Second Amendment rights.

In its amicus (friend of the court) brief in McDonald, CFJ and its co-amici urge the Court to apply the Second Amendment to the states via the Fourteenth Amendment’s Privileges or Immunities Clause. While arguing that Privileges or Immunities is the most principled approach in light of the original meaning and text of the Second and Fourteenth Amendments, CFJ’s brief notes that there is abundant Supreme Court precedent supporting incorporation through the Due Process Clause.

Unlike appellant Otis McDonald, CFJ advises against overruling the Supreme Court’s landmark 1873 decision in the Slaughter-House Cases, which restricted the scope of the Privileges or Immunities Clause. Our brief argues that overturning the Slaughter-House precedent is not only unnecessary but also unwise, because
“Privileges or Immunities could become a cornucopia of myriad entitlements, such as a constitutional right to healthcare, higher education, a ‘living wage,’ ‘decent’ housing, and a clean environment. … By limiting the Privileges or Immunities Clause to rights that have a textual basis in the Constitution, … Slaughter-House constrains this scenario of judicial activism run amok.”