December 11, 2009
"A gun case or Pandora's box?: Ruling could trigger the unhinging of American culture"The title of this post is the headline of this amusing commentary in The Washington Times, which makes for a good topic for conversation on a Friday. Here is how the commentary starts and ends:
Many have heard about the historic gun rights case going to the Supreme Court. Fewer have heard that this is also a major case for businesses and family values. It could lead to anything from court-ordered Obamacare to same-sex marriage. This is the biggest case of the year, and everyone has a stake in it....
If the court overrules the Slaughterhouse Cases, the Privileges or Immunities Clause can mean anything courts say it means. The Supreme Court could declare a constitutional right to government-provided health care or "decent" housing, a free college education, a "living wage" or a clean environment, resulting in a court-ordered cap-and-trade system.
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. It's because of these social issues, in particular, that the Family Research Council has weighed in on this case.
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. That's why several conservative groups have weighed in with a brief asking the court to incorporate the Second Amendment through the Privileges or Immunities Clause but to do so without overruling the Slaughterhouse Cases.
McDonald v. Chicago is as big as it gets. All eyes will be on the Supreme Court early next year.
A few related new and old Second Amendment posts:
- Should criminal justice reform groups actively urge SCOTUS to overrule The Slaughterhouse Cases?
- Seeking help working though the Second Amendment amicus briefs filed in McDonald
- What is the best argument that Heller should only impact the feds? Will it get any votes?
- What state and local issues will be litigated the most if (when?) Heller is incorporated?
- State AGs and the Second Amendment incorporation debate
- Should (and will) SCOTUS discuss standards of review for the Second Amendment when deciding incorporation?
- "In U.S., Record-Low Support for Stricter Gun Laws"
- What if no lower court judges participate in a "Second Amendment Revolution"?
- Has there been a single pro-gun-rights rulings in lower courts since Heller?
- "Does the Second Amendment Bind the States?"
- What might 2009 have in store for . . . Second Amendment jurisprudence?
December 11, 2009 at 10:42 AM | Permalink
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So conservatives are now playing Goldilocks?
status quo is too cold!
true P&I is too hot!
but due process/fake P&I is just yummy! give me break. they just want P&I to contain the rights they like but not the ones they don't.
Posted by: . | Dec 11, 2009 10:51:06 AM
As the co-author of Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment, 8 Georgetown Journal of Law & Public Policy ____ (2010), I posted a reply to this Op-Ed at http://joshblackman.com/blog/?p=3103
Posted by: Josh Blackman | Dec 11, 2009 11:13:04 AM
Talk about patent fearmongering...if there is an incorporation, it will be the way the Supreme Court has always done it, even if the Fourteenth Amendment grounding is a little dodgy. Maybe Justice Thomas will concur on the grounds that the Slaughterhouse Case has outlived its usefulness (he did, after all, say that he was open to reevaluating the P&I Clause in an opinion).
There is simply no way a 5-4 majority will effect a greater sea change in American jurisprudence than they already will be by incorporating the Second Amendment. You're not going to get Scalia, Thomas, Roberts, Alito, AND Kennedy to overrule Slaughterhouse.
Posted by: Res ipsa | Dec 11, 2009 11:21:04 AM
when I read "amusing" in your description, I for some reason assumed the Wash. Times post itself was intended to be amusing (like sarcasm). When I realized that they were actually serious, then I realized why it was really amusing. My only complaint is that they forgot the part where the rivers and lakes boil and the sky turns to blood.
Posted by: Observer | Dec 11, 2009 3:14:01 PM
In those cases, the clients' targeted business methods killed the lawyer's daughter. Rent seeking trumps all ideology, all loyalty. Add, all family love.
Posted by: Supremacy Claus | Dec 12, 2009 11:29:22 AM