There is growing tension between the pro-gun parties to the upcoming Supreme Court gun-rights case. Perhaps concerned about the direction this case was going, the Court has taken the unusual step of granting the NRA’s motion to be given separate time to speak during oral arguments. Round One in this historic fight for the right to bear arms goes to the NRA.
The U.S. Supreme Court is set to hear arguments on March 2 in McDonald v. City of Chicago, presenting the question of whether the Second Amendment right to keep and bear arms is only enforceable against the federal government, or whether it is also a right against city and state governments. This lawsuit challenges Chicago’s gun ban, which is essentially identical to the federal ban in D.C. that the Supreme Court struck down in 2008.
The lawyers for Otis McDonald and his co-plaintiffs are libertarian activists, who are pushing an aggressive and potentially risky constitutional theory to the Court. Without getting too much in the legal weeds, McDonald is arguing that the Court should extend gun rights to the states through the little-known Fourteenth Amendment Privileges or Immunities Clause, and overrule a venerable precedent from 1873 called the Slaughter-House Cases, which protects state sovereignty by limiting the reach of Congress and the courts. The Slaughter-House Cases is only one step removed from Marbury v. Madison as one of the most important cases in American history.
The libertarian activists behind McDonald openly explain that the reason they are pushing the Court to overrule Slaughter-House has nothing to do with guns. Instead, they want to advance a libertarian economic agenda, where federal judges could sit in judgment of state and local laws involving labor, employment, business regulations and other economic issues. Although the Constitution is silent on these matters, these activists want the courts to start declaring constitutional rights against such things, and using the power of the federal judiciary to strike down laws of this sort that the judges don’t like.
The problem is that this approach could endanger gun rights. The narrower your focus when arguing a case, the easier it is to get a court to go along with you. The broader your argument, the steeper the hill you must climb.
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