Supreme Court to take up landmark gun-control case

Those 51 words formed the backbone of what would become the American civil rights movement. There was just one problem: Not everyone supported such a radical reorganization of constitutional protections – including a majority of the members of the Supreme Court.

In 1873, the court handed down a 5-to-4 decision in what is called the Slaughterhouse Cases, essentially stripping the 14^th Amendment’s privileges and immunities clause of any enforceable meaning. In United States v. Cruikshank (1876), the court ruled 9 to 0 that the First Amendment right to assemble and the Second Amendment right to bear arms were constraints on federal power, not state authority.

Then in 1886, the high court ruled 9 to 0 in Presser v. Illinois that the Second Amendment applied only to the national government. This decision reinforced the court’s earlier ruling that the 14^th Amendment had not applied the Bill of Rights to the states.

Later, the Supreme Court began to selectively apply certain constitutional rights to the states, such as the right to fair compensation for publicly taken land, and the protections of the First Amendment. In the years since, nearly all of the guarantees in the Bill of Rights have been applied to the states. One of the few remaining is the Second Amendment.

Cases represent severe mistakes, lawyer claims

In his brief to the court on behalf of the Second Amendment Foundation and a group of Chicago residents, Alan Gura argues that the right to keep and bear arms was extended to the states via the 14^th Amendment’s privileges and immunities clause.

He said the three cases referenced above – Slaughterhouse, Cruikshank, and Presser – represented a series of severe mistakes by the Supreme Court and should now be overturned and corrected. “Faced with a clear conflict between precedent and the Constitution, this court should uphold the Constitution,” he wrote in his brief.

Mr. Gura is the same lawyer who argued and won the Washington gun ban case. Gura’s position relying on the privileges and immunities clause is a bold one because, in the years since the Slaughterhouse cases, the high court has relied on a different part of the 14^th Amendment – the so-called due process clause – to apply constitutional protections to the states. It has never (at least so far) cited the privileges and immunities clause for that purpose.

As a kind of backup, Gura and lawyers for the National Rifle Association argue that the court could apply the Second Amendment to the states via the due process clause as well.

Lawyers for Chicago disagree. They argue that Slaughterhouse, Cruikshank, and Presser are good law that should be upheld.

“To establish that a particular provision of the Bill of Rights applies to the states, that particular provision … must be so fundamental that it warrants displacing the ability of state and local governments to make their own sovereign choices and legislate for their own conditions,” the Chicago brief says.

“[The Second Amendment] is the only Bill of Rights provision that confers a substantive right to possess a specific, highly dangerous physical item – an item designed to kill or inflict serious injury on people,” the Chicago brief says. Lawyers for the city say state and local officials should have the flexibility to determine gun-control policies on their own without judicial interference.

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