In Second Amendment Case, Friends are Foes and Foes, Friends

The widely anticipated Second Amendment case pending before the Supreme Court is creating strange bedfellows, reports Jess Bravin in The Wall Street Journal. Bravin writes that, "as gun-rights groups battle each other over how to argue the case, ... some left- and right-leaning legal theorists unite over how to interpret the Constitution."

As noted at ACS's Supreme Court Preview for the Court's current term, some progressive advocates support incorporation of the Second Amendment to the states in McDonald v. Chicago. They see McDonald as an opportunity to revive the Fourteenth Amendment's Privileges or Immunities Clause, which was neutered by the Supreme Court in the 1873 Slaughterhouse Cases. Since then, incorporting rights to bar infringement by state action has been a burden carried by the Fourteenth Amendment's Due Process Clause, which speaks merely to deprivations of rights, as opposed to the broader language of the Privileges or Immunities Clause.

As to the Second Amendment, the Supreme Court left the question of incorporation for another day in the 2008 D.C. v. Heller decision, which -- for the first time -- recognized the right to bear arms as an individual right, rather than a right bestowed upon members of a militia collectively. And that day will be before the Court soon in McDonald.  

Representing the perspective of gun rights advocates in oral argument will be Alan Gura, counsel for the petitioners. Gura, like the Constitutional Accountability Center's Doug Kendall, would have the Court consider incorporating the Second Amendment through the Privileges or Immunities Clause. The National Rifle Association, however, disagrees with this approach, creating a rift among the conservative community as to how the right to bear arms should be incorporated against the states.

In a related case, the Washington State Supreme Court resolved similar issues this week. In State v. Sieyes, the court ruled recognized the Second Amendment as applicable to the states. Following a July decision by the U.S. Court of Appeals for the Ninth Circuit -- which is currently pending en banc review -- the 7-2 majority relied solely on the Due Process Clause in addressing the question of incorporation, leaving it to the U.S. Supreme Court to broach frontiers untouched for over a century of American jurisprudence.

[Image via Jocko B.]