Liberals Use Supreme Court Gun Case to Bolster Other Rights

[davepc]

The Supreme Court's 2008 ruling in D.C. v. Heller was a constitutional earthquake, breathing life into the Second Amendment as a guarantee of an individual right to bear arms.

But the aftershock of that decision is beginning to transform the constitutional landscape well beyond gun rights, in ways that have liberals cheering and even joining hands with one-time adversaries like the National Rifle Association.

In a follow-on case pending before the 7th U.S. Circuit Court of Appeals, a progressive legal group and liberal law professors including Yale Law School's Jack Balkin earlier this month joined gun-rights advocates in urging that the right established in Heller, which involved only the District of Columbia, be extended to apply against gun restrictions in the 50 states. The case is McDonald v. Chicago, a challenge to that city's strict gun control law and, no matter what, the outcome is likely to be appealed to the Supreme Court.

But these academics and the liberal Constitutional Accountability Center, which filed a brief in the case, have not suddenly taken up the Second Amendment cause, Charlton Heston-style. Rather, they joined the case to urge the court to adopt a new way of making the rights protected by the federal Constitution apply to the states (a process known as "incorporation").

That new pathway runs through the long-dormant "privileges or immunities" clause of the 14th Amendment. In the view of scholars and historians of all political stripes, the clause provides the strongest legal foundation for applying the Bill of Rights to the states. The language -- "No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States" -- is broad and clear, advocates say, and could be used to incorporate the entire Bill of Rights to the states, wholesale. It would replace the narrower and more piecemeal way in which the Bill of Rights was usually made binding on the states, right by right, during the 20th century -- namely, the 14th Amendment's due process clause.

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.

...

http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202428529045

[rpannier]

1. There is common ground nt

[appal_jack]

2. As a liberal...

As a liberal who HAS 'taken up the Second Amendment cause, Charlton Heston-style' I approve heartily.

ALL of our rights should be fully incorporated by now, and this is just the sort of alliance to get the job done.

-app

[Longteeth]

3. Sounds good to me!!!! ALL or our rights have been under attack

for far too long. It is time to take them back. ALL OF THEM!!!

[jody]

4. Big Government & Big Brother White House are being opposed by states claiming rights under the 10th.

Which side will benefit from incorporation of the 2nd in the 14th?

Tenth Amendment Center

[Fire_Medic_Dave]

5. Kicked