Court Watch: Guns And Liberty!

This morning the Supreme Court heard oral arguments in McDonald v. Chicago. Most legal observers predict that the case will result in a victory for the 2^nd Amendment, but there is also hope in free market circles that the case will be a win for economic freedoms as well.

Lawyers for the plaintiff gun owners in the case are advancing a libertarian theory based upon the Privileges or Immunities Clause of the 14^th Amendment that would overturn the infamous Slaughter-House decision and open the door for greater constitutional protection of basic economic liberties. (While other 2^nd Amendment advocates, including the legal team from the NRA, have advocated a less sweeping, more gun-centric approach.)

From early reports of the hearing, it appears that the Court came across as very friendly towards the 2^nd Amendment and gun rights, but the Justices seemed unlikely to go as far as to make the sweeping overturn of Slaughter-House:

From the initial questioning through the end, it was quite clear that those living in Chicago — and, by extension, New York, San Francisco, and other places with extreme gun restrictions — will soon be able to rest easy, knowing that they will be able to have guns with which to protect themselves. Unfortunately, the Court did not seem inclined to adopt the arguments propounded by petitioners’ counsel Alan Gura (and supported by Cato) that the Privileges or Immunities Clause was the way to go. Chief Justice Roberts expressed reluctance at having to overturn the 1873 Slaughterhouse Cases and other justices joined in concerns over how activist judges would use the Clause if the Court revived it — even if that were the path that hewed more closely to the constitution’s true meaning.

This turn of events is unfortunate because reviving the Privileges or Immunities Clause, far from giving judges free reign to impose their policy views, would actually tie them closer to the text, structure, and history of the Constitution. As it stands now — and as it seems will be the case after McDonald is decided — many of our most cherished rights are protected only to the extent that judges are willing to label them as sufficiently “fundamental” to warrant such protection. That is an unprincipled jurisprudence and one that hurts the rule of law.

http://www.cato-at-liberty.org/2010/03/02/gun-rights-secure-liberty-less-so/

For a further explanation of the two competing pro-gun rights legal arguments see:

http://reason.com/archives/2010/02/10/the-nra-muscles-into-mcdonald