Constitutional Law

Rethinking Incorporation

Alan Gura is one of the attorneys who won the Heller case, establishing that the Second Amendment conveyed an individual right to gun ownership. Now, he’s turned his sights to extending the Supreme Court’s ruling there, and he has unexpected company.

McDonald v. Chicago is one of a trio of cases toward that end, currently pending before the 7^th U.S. Circuit Court of Appeals. There, Gura and other supporters of the National Rifle Association are fighting to have Heller, a case concerning federal action, extended to strike down state and local gun legislation. However, the cases boast “wider consequences than the Second Amendment,” says Gura.

According to Legal Times, attorneys and academics better known for liberal positions are joining hands with gun-rights advocates to address how the Bill of Rights is extended to the states – or “incorporated,” in legal jargon. Traditionally, incorporation of the Bill of Rights has been piecemeal. Since the 1873 Slaughterhouse cases, those rights have been extended to cover state action individually under the Due Process clause of the 14^th Amendment. However, some are seizing on the opportunity of the McDonald case to push for a renewal of the Privileges or Immunities clause, which has lied virtually dormant since the Slaughterhouse cases.

That clause reads, “No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States.” Legal Times reports that, “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.”

This view was shared by John Payton, president of the NAACP Legal Defense and Education Fund at an event held by ACS earlier this year: “If you read the history, [the Bill of Rights was] supposed to come in as privileges or immunities of being a citizen of the United States.”

“It’s remarkable how broad a consensus there is that privileges and immunities is the right way to go,” said Doug Kendall, founder of the Constitution Accountability Center. “The conversation on this clause has begun and there are very important progressive values at stake in the outcome.”

Full post as published by ACS Blog on February 24, 2009 (boomark / email).