Fundamental Rights

Yesterday, the Supreme Court heard oral argument in the latest big gun case, McDonald v. City of Chicago. The Court will decide whether the individual right to keep and bear arms recognized in 2008's D.C. v. Heller extends to the states. I was at oral argument and there seemed to be two big winners: gun rights advocates and gun control advocates.

The gun rights folks, like the NRA, seemed poised to win the case. Of the five Justices who voted with the majority in Heller, all appeared to be inclined to hold that the right to bear arms is a "fundamental" right such that it applies to state laws. (Well, not all of the five: Justice Clarence Thomas said nothing, extending his streak of silent oral arguments that dates back to 2006.)

Just like in the Heller oral argument, Justice Anthony Kennedy, the swing vote, showed his cards. "If [the right to bear arms is] not fundamental, then Heller is wrong, it seems to me." Chief Justice John Roberts said, "I don't see how you can read Heller and not take away from it the notion that the Second Amendment, whether you want to label it fundamental or not, was extremely important to the framers in their view of what liberty meant."

As Paul Clement, representing the NRA said, the question of whether the right to bear arms was fundamental or not was "remarkably straightforward." The fact that Clement was there at all was a surprise. The NRA was not formally a party to the suit. More striking still was that Clement was representing the NRA. After Clement, then serving as Solicitor General, filed a brief in Heller suggesting that D.C.'s handgun ban might be constitutional, gun rights activists branded him a traitor. Now he is their lawyer.