Liberals For Gun Rights?

The Supreme Court is set to consider another gun-rights case, McDonald v. Chicago, argued by Alan Gura, who won the historic Heller case that outlawed D.C.'s gun ban. Gura is arguing that Second Amendment rights should be "incorporated," meaning it should be viewed as a "fundamental right" like freedom of speech or religion -- a right that can't be regulated by the states.

Here's the interesting part: Some liberal legal types are supporting Gura's case. Why? Because they believe that a ruling in favor of gun-rights advocates could provide a way of bolstering other rights enumerated in the Bill of Rights, not just the right to bear arms. From a Legal Times piece written last February:

Use of the due process clause has led to "the constitutional equivalent of a food fight" with conservative justices increasingly wary of expanding or creating new rights because of the clause's process-oriented scope, says Douglas Kendall, founder of the D.C.-based Constitutional Accountability Center. Kendall says invoking "privileges or immunities" would have a "lift-all-boats" effect, strengthening free speech, and possibly even abortion and gay rights, at the same time that it bolsters the right to bear arms.

Kendall had few qualms about joining McDonald on the side of gun-rights advocates. "The conversation on this clause has begun, and there are very important progressive values at stake in the outcome," Kendall says. "We need to be in that conversation."

While handgun bans will likely be outlawed, even Antonin Scalia has written that the Second Amendment doesn't mean people have a right to carry around loaded firearms in schools or courthouses. So not all commonsense gun restrictions will be made unconstitutional, but other fundamental rights may be strengthened if the Court accepts this latest legal argument of gun-rights advocates.

I also want to point out that this is a rather lovely example of conservatives looking for judicial activism. Second Amendment rights have never been read this way before -- so this time, it would be conservatives reading "new rights" into the Constitution. It's just that this time they're in favor of doing so, so it's cool.

-- A. Serwer

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