The Liberal Case for Gun Control Doesn't Get Far in the Supreme Court

The McDonald v. Chicago Supreme Court case, argued on March 2, was a good opportunity for liberal advocates of gun rights to present their case in briefs. But they probably won't win the decision. In fact, there is not a single justice that will necessarily side with them.

No liberal proponent of gun rights presented to the court. The side that they have taken was presented by the petitioner, Alan Gura, on behalf of the Second Amendment Foundation. Ten minutes of his 30 was given to the NRA to present their more traditional case for gun rights. 

Gura got off to a rough start. Almost as soon as he opened his mouth Chief Justice John Roberts asked why Gura wanted the court to overturn the Slaughterhouse precedent of 1873 to apply the entire Bill of Rights to the states under the Privileges or Immunities clause of the 14th Amendment. Gura maintained, of course, that cases widely agreed to be wrongly decided, as Slaughterhouse generally is, should have no precedential power.

But the conservative justices, who would have been Gura's most sympathetic ear, seemed generally unimpressed by his arguments. Justice Antonin Scalia, who is every bit as aggressive, snarky, and pedantic as you would imagine, gave Gura hell throughout his argument. Scalia demanded to know why Gura was proposing to incorporate the Second Amendment under privileges or immunities when he could do so under the substantive due process clause (which is the more limited ruling the NRA advocates). Scalia joked that Gura is, "bucking for a place on some law-school faculty" because his argument, "is the darling of the professorate." Scalia's point is that fancy legal footwork might bolster a lawyer's reputation for brilliance but not make it easier for the Supreme Court to rule in his favor. True enough, although Gura seems to be doing just fine for himself and I doubt he needs to invent novel arguments in this particular case to get a teaching job if he wants one. Scalia seemed to not even consider the possibility that Gura might simply believe his own line of reasoning and care more about what is constitutionally correct than what is the most expedient way to restrict gun control.

Liberal justices seemed just as skeptical of Gura's argument as their conservative colleagues. Best moment: when Ruth Bader Ginsburg elliptically brought up women's rights and Gura seemed utterly stumped by it. Gura was arguing that the 14th Amendment was intended to protect all the rights of citizens from their state governments (thus including gun control and the few others that have not been incorporated under due process). "Even though many people were not protected at that time?" Ginsburg asked. Knowing Ginsburg's history of women's rights advocacy, it was obvious to me what she was alluding to, but apparently escaped Gura, who paused before guessing that she meant African-Americans and starting talking about the South. "Not just the South," Ginsburg corrected him, "all over the country." An awkward silence ensued until Ginsburg took pity on Gura and prompted him: "Married women, for example."

Conservative justices were even harder on James A. Feldman, the attorney for Chicago and Oak Park, Illinois. Feldman walked right into a trap when he was asked whether it would be constitutional for a state to ban all firearms. If he had said yes, his argument would have been consistent, but he instead said it would depend on whether such a ban interfered with a right to self-defense. Ironically, by suggesting that the right to bear arms flows from an unenumerated right to self-defense, Feldman was sharing a premise of the liberal argument for gun rights. No strict constructionist can be convinced that citizens have a right to self-defense that applies to states despite not appearing in the Constitution and never having been recognized by the Supreme Court, while an explicitly stated right to bear arms does not.

Thus, the more expansive incorporation of rights at the state level that Gura and his allies were pushing looks highly unlikely to succeed. My money is on the court applying the Second Amendment to states but reaffirming that the state has broad powers to regulate guns and only some gun rights may be protected, and possibly only in the home. It also strikes me as possible that if the liberal wing of the court can pick off one conservative, they will back Chicago. 

In the real world, outside the Supreme Court, people on both sides are more concerned about the practical effects than the legal theories underneath them. Paul Helmke, president of the Brady Campaign to Prevent Gun Violence, told a gaggle of reporters and onlookers (most of whom could not identify him) that he was encouraged by Scalia's questions and that he thinks "reasonable regulations will be upheld."


 

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