When the constitutional accountability Center launched in 2008, it looked like just another liberal legal-advocacy group, dedicated to "fulfilling the progressive promise of our Constitution's text and history." The causes it has backed run the standard liberal gamut: among other things, the group supports California's efforts to regulate carbon emissions and pushes for "robust due-process protections for immigrant criminal defendants." So if you were told that the CAC had filed an amicus brief in McDonald v. Chicago, a case about gun control to be argued before the Supreme Court this week, you might think it was siding with Chicago, whose restrictions on gun ownership are being challenged.
You would be wrong. For decades, liberals have opposed gun rights on the grounds that the Second Amendment is limited to the establishment of state militias. But some liberal dissenters from this view now say that is too narrow a reading of the Constitution. They contend that it fails to take into account the historical record and contradicts liberals' own reading of the Constitution's protection of individual rights.
The CAC has joined forces with staunch conservatives, including Steven G. Calabresi, cofounder of the Federalist Society, to support expanding individual rights, including gun rights, in the states—inviting the possibility that Chicago's virtual ban on handguns might be overturned. "There is a deeply progressive historical basis for some individual right to bear arms," says Douglas Kendall, the CAC's founder.
This is still far from the standard liberal view. But Kendall does have allies. Some sharp liberal legal minds are part of his campaign to reverse and embrace the right to gun ownership. "I believe in an individual right to bear arms, consistent with a living Constitution," says Adam Winkler, a professor of law at UCLA and a frequent participant in the American Constitution Society, the liberal answer to the Federalist Society. Winkler was one of eight scholars, including other prominent liberals, who signed the CAC's brief in the McDonald case.
What is going on here? For much of the nation's history, Kendall and his supporters argue, the right to bear arms was considered essential to citizenship. "Forty-two states in their state constitutions provide protections for the right to bear arms," says Winkler. "It is one of the longest-standing, most deeply entrenched rights in American history."
At the heart of the left-leaning dissenters' argument is a plea for consistency. For decades, liberals have insisted that the Constitution assumes—even if it does not explicitly spell out—a right to bodily autonomy. This right, long disputed by conservatives, is a basis for arguments in favor of abortion rights and gay rights. Liberals who support gun rights find a similar implied right to own weapons: after all, they say, what is the right to bear arms but the ability to protect your body from criminals as well as the government? "The right to bear arms gives you a mechanism to protect your bodily autonomy from attack," says Winkler.
The CAC's main concern in weighing in on the McDonald case isn't to secure gun rights but to set a precedent that will expand individuals' protection under the Bill of Rights to the state level. That would, they hope, bolster liberal constitutional arguments in favor of stronger due-process and abortion-rights protections.
The real issue in McDonald is whether the Second Amendment applies to the states. Currently, it covers only the federal government. The Supreme Court has already applied "fundamental rights," such as the right to free speech, to states. The National Rifle Association is asking the court to elevate the Second Amendment to the list of fundamental rights. The CAC hopes instead that the court will add not just the Second Amendment but the whole Bill of Rights. That would make state laws vulnerable to federal-court challenges under a part of the Constitution that liberals love: the "privileges or immunities" clause of the 14th Amendment. Liberals would be able to sue states in federal court on everything from welfare to gay marriage, challenging laws that deprive someone of the "privileges or immunities" of citizenship. The CAC believes the benefits of these new protections are worth the weaker gun laws that may go along with them.
Traditional liberal legal scholars don't see it this way. They still come down overwhelmingly against individual gun rights. When the conservative majority on the Supreme Court ruled in 2008 that Washington, D.C.'s outright ban on handgun possession violated the Second Amendment, the four left-leaning justices dissented. Liberals attacked the majority decision, saying the record from 1789 shows the Founders' intent was to protect state militias. Applied today, that means that the National Guard can stock arms, but a National Guard reservist, much less a typical citizen, does not have a right to buy a pistol and keep it in his home.
Most legal conservatives don't buy the CAC's new line of reasoning, either. Conservatives support the conclusion that individuals have the right to bear arms—but find the new liberals' underlying argument unconvincing. They do not believe a right to bodily autonomy can be found—or even implied—in the language of the Constitution. Essentially, conservatives reject this argument for the same reason that they have long rejected the implied right to privacy that the Supreme Court pointed to in deciding Roe v. Wade.
Justice Antonin Scalia and other "originalists" are most concerned with trying to discern what the Founders had in mind when they wrote the Constitution. They often dismiss the traditional liberal approach to constitutional jurisprudence as one that tries to reach desired outcomes by conveniently finding a basis for them in the Constitution. (Liberals, of course, argue conservatives are doing just that in their reading of the Second Amendment.)
As a result, for now the liberal stand in favor of gun rights remains a novel argument in search of a judicial home. For different reasons, most scholars on the left and the right want nothing to do with it. Politicians aren't rushing to embrace it. One could see how moderate Democratic members of Congress—always looking for ways to woo back rural voters—might adopt this thinking. But they had begun to tone down their opposition to gun ownership even before this new legal argument started making the rounds in Washington. To the distress of gun opponents, President Obama has said he "supports and respects the Second Amendment," and Democratic leaders on Capitol Hill have not made gun control a priority despite earlier promises to aggressively pursue a ban on assault weapons. In a tough election fight, worried Democrats are looking for all the arms they can bear.