An organization called the Arms Keepers wrote a brief in the McDonald case. In it, they argue for an odd model of “selective” incorporation through the Privileges and Immunities (PorI) clause, while strangely insisting that Slaughterhouse can (and possibly should) be preserved.
They were just formed this year, and there’s scant information on them. Their website is registered to a lawyer named Andrew Hyman. The brief describes them as, “a volunteer organization that supports reasonable regulation of handguns and rifles, instead of prohibition.”
The phrase “reasonable regulation” is a red flag, being appropriated as it’s been by the Brady Campaign, and it makes me wonder.
Alan Gura has a few notes on the matter. Apparently, Orin Kerr is involved with Arms Keepers and was one of the co-authors of the brief. Although he seems open to the idea of visiting PorI, he cast some grim predictions about its revitalization on the Volokh site.
Was this steely pragmatism or perhaps wishful thinking on Kerr’s part? He’s stated that,
Most Supreme Court briefs focus on trying to win the case, whereas this brief seems to treat that as an afterthought and instead is trying to use this case to achieve a long-time goal of the libertarian legal movement. You don’t see that very often.
Which brings us back to last week’s question: what defines a “libertarian” these days? When I was growing my political fangs, a libertarian believed that the one of the few legitimate roles of the government involved protecting the rights of its citizens. In that vein, the 14th Amendment makes perfect sense to libertarian sensibilities.
Apparently the definition has changed. We’ve got a divide among libertarian-leaning folks, in which some claim that the 14th Amendment gave the government a blank check to trample all over state sovereignty. They argue against a resuscitated Privileges or Immunities clause because they fear some threat to federalist principles.
Oddly enough, the people protesting the erosion of state independence on the grounds of federalist principles are actually articulating an anti-federalist sentiment. Semantics? Yes, but it’s important to be clear in such things.
But what does that really have to do with the 14th Amendment? One objection I’ve heard is that a resuscitated PorI would codify “rights” such as housing, employment and health care through an overly broad re-reading of the 9th Amendment.
Ken Klukowski, who authored the ACRU brief, seems all too eager to pour grease on that fire:
It also could completely change American culture, with the court having a new basis upon which to declare constitutional rights to abortion, same-sex marriage, obscene material or a child’s “right” to a public-school education over his parents’ objections. (…) Although it should be about the Second Amendment, this gun rights case is, instead, a Trojan horse for everything except guns. It could remake America’s economy and culture.
Such a situation is highly unlikely.
First off, the Court isn’t going to roll in a Trojan horse of any sort. We’re going to hear a great deal about “reliance interests,” and though they may allow a peek into Pandora’s box, they’re not going to throw the lid wide open. Such action would be a logistical nightmare.
They’ll be reviewing original intent, which, according to Senator Howard was to protect, “the personal rights guaranteed by the first eight amendments of the United States Constitution.” The potential minefield of the 9th Amendment issue can thus be deftly avoided if they so choose.
(Unenumerated rights may be an issue for future cases. Selective incorporation may still have a role where such questions are concerned.)
In this case, the parameters become clearer and more workable. We’re dealing with enumerated rights, many of which are already incorporated anyway. Sure, we get 2nd Amendment protections, jury trials and grand juries in all 50 states under a clearer reading of PorI, but I’m not going to receive the right to marry an armadillo (please note that I have no such intentions) as a result.
Slaughterhouse can be overruled without opening the floodgates to Big Nasty Gubbmint. If anything, a true and clear reading of the Privileges or Immunities clause will simplify incorporation doctrine to some extent.
The point? State-sovereignty folks are really worked up about this. Some of that sentiment seems to have found its way into several of the amicus briefs, which actually oppose Gura’s philosophy and approach. Their fears are unfounded, and it’s not only wrong but unneccesarily disruptive to sow discord over something that’s not going to happen.
This is an important case for the 2nd Amendment, and it sets the stage for further challenges. This is no time for infighting without good reason.