Tuesday, June 9, 2009
Individual plaintiffs, the Second Amendment Foundation, and the Illinois State Rifle Association filed a petition today asking the Supreme Court to reverse last week's Seventh Circuit ruling and apply the Second Amendment individual right to bear arms to the states. (Alan Gura, the attorney who represented the respondents last term in D.C. v. Heller, filed the cert. petition.)
The NRA filed a cert. petition in the case last week.
Both petitions argue that the case presents a good opportunity for the Supreme Court to resolve a split in the circuits and set its incorporation doctrine right.
But while the NRA argues primarily for "selective incorporation" via the Fourteenth Amendment's Due Process Clause, Gura's brief forcefully argues for incorporation via the Privileges or Immunities Clause--and, necessarily, for overruling the Slaughterhouse Cases:
More critically [than resolving the circuit split], it is never too late to undo an error as grievous as that contained within The Slaughter-House Cases. Opportunities to correct such mistakes should be seized when they present themselves.
Brief at 29 (emphasis added).
The Slaughterhouse Cases, of course, read the Privileges or Immunities Clause unduly narrowly, leaving that clause all but empty and surely no vehicle for applying the Bill of Rights to the states. Without the Privileges or Immunities Clause--the most obvious vehicle for incorporation, and the clause that the Fourteenth Amendment framers and ratifiers assumed would operate as a vehicle for incorporation--the Court used the Due Process Clause and a process called selective incorporation. Under the selective incorporation approach, the Court looks to whether a claimed right is sufficiently important and historically grounded to apply to the states.
But the Slaughterhouse Cases' narrow reading of the Privileges or Immunities Clause is widely regarded as a mistake.
Gura's brief--and the work of Seventh Circuit amicus Constitutional Accountability Center--seek to set this right. The move to overturn the Slaughterhouse Cases pits the original understanding and original intent of the Fourteenth Amendment (which suggests that the Privileges or Immunities Clause was designed to incorporate fundamental rights against the states) against the long-standing selective incorporation practice of the Court (which uses the Due Process Clause as the vehicle for incorporation).
This is a bold move, in the sense that selective incorporation under the Due Process Clause is probably the path of lesser resistance. (Gura argues this, as well.)
But it's also a move that could effect a sea change in the way we understand national citizenship and the way we protect fundamental rights--enumerated and unenumerated--against the states.