Taking on a major new constitutional dispute over gun rights, the Supreme Court agreed on Wednesday to decide whether to apply the Second Amendment to state, county, and city government laws.  In another major case among ten new grants, the Court said it will rule on the constitutionality of one of the government’s most-used legal weapons in the “war on terrorism” — a law that outlaws “material support” to terrorist groups.

The Court had three cases from which to choose on the Second Amendment issue — two cases involving a Chicago gun ban, and one case on a New York ban on a martial-arts weapon.  It chose one of the Chicago cases — McDonald v. Chicago (08-1521) — a case brought to it by Alan Gura, the Alexandria, VA., lawyer who won the 2008 decision for the first time recognizing a constitutional right to have a gun for personal use, at least in self-defense in the home (District of Columbia v. Heller).  A second appeal on the Chicago dispute had been filed by the National Rifle Association (NRA v. Chicago, 08-1497).  Presumably, the Court will hold onto that case until it decides McDonald; the same is likely for the New York case, Maloney v. Rice (08-1592) — a case in which Justice Sonia Sotomayor had participated when she was a judge on the Second Circuit Court.

Published by Alan Gura under Uncategorized

My latest law review article is out…

Heller and the Triumph of Originalist Judicial Engagement: A Response to Judge Harvie Wilkinson,

56 UCLA L. Rev. 1129 (2009)

Here is the abstract:

Judge J. Harvie Wilkinson criticizes the U.S. Supreme Court’s landmark decision in District of Columbia v. Heller through the lens of post-Roe judicial conservatism, a doctrine that exalts judicial deference to the political branches above the interest in individual liberty. But that vision is incompatible with the sort of judiciary the Framers established, and Wilkinson’s prescription does not lay out neutral guidelines for use of the judicial power. In Heller, the Supreme Court acted exactly according to Constitutional design, enforcing a fundamental right against recalcitrant political forces. Not just conservatives, but all Americans, should rejoice in the decision.

It's not just about guns.

As we reported in last week's Grassroots Alert, the U.S. Supreme Court will soon hear the landmark Second Amendment case of McDonald v. Chicago.  The case will address the application of the Second Amendment to the states through either the Due Process clause or the Privileges or Immunities clause of the Fourteenth Amendment.  The case has major implications for the legality of restrictive gun laws not only in Chicago, but also in other cities and the states across the nation.  The decision to hear the case gives hope to Second Amendment advocates across America, that this fundamental freedom will be protected from infringement throughout the nation from impermissible regulation at all levels, state and local, as well as federal.

This week comes the news that U.S. Senators Kay Bailey Hutchison (R-Texas) and Jon Tester (D-Mont.), are joining forces with U.S. Representatives Mark Souder (R-Ind.) and Mike Ross (D-Ark.), in filing a joint, pro-Second Amendment amicus curiae (Friend of the Court) brief before the Supreme Court in the McDonald v. Chicago case.

Last year, the historic case of District of Columbia v. Heller invalidated the District's ban on handguns.  However, the Heller case applied only to federal enclaves, such as Washington, D.C.  A favorable ruling in the McDonald case would ensure that the individual right affirmed in Heller also applied as against state and local regulation.

Commenting on the brief, Sen. Hutchison said, "With its landmark decision in D.C. v. Heller, the Supreme Court affirmed an individual's right to bear arms is a fundamental, Constitutionally-guaranteed liberty.  The Second Amendment should protect all lawful gun owners, but some courts have not viewed this right as one protected from state infringement.  I look forward to the Supreme Court's consideration of McDonald v. City of Chicago so this extremely important Constitutional question regarding a fundamental, individual right can be settled, once and for all."

Sen. Tester, who serves as Vice Chairman of the Congressional Sportsmen's Caucus, said, "The Second Amendment guarantees gun rights for all law-abiding Americans, no matter where they live.  I'm glad Republicans and Democrats are working together to tell the Supreme Court we expect it to stand up for our gun rights in this important case."

Rep. Souder said, "For years, I have been an outspoken critic of Washington D.C.'s gun ban, and last year I helped lead the efforts in the House of Representatives to overturn it.  Now, as the Supreme Court prepares to hear McDonald v. City of Chicago, I am glad to join this brief in support of the Second Amendment. Constitutional rights—guaranteed to all citizens of the United States—cannot be overturned by local legislation or all rights are threatened."

Finally, Rep. Ross said, "Banning guns will not keep guns out of the hands of criminals, but it will keep guns out of the hands of those trying to defend themselves against criminals.  The Supreme Court's recent decision in District of Columbia v. Heller affirmed the right of D.C. residents to own and bear arms and I am optimistic these same rights will be extended to the law-abiding citizens of Chicago and across the United States in McDonald v. City of Chicago.  As a pro-gun Democrat, I am a firm believer in the Second Amendment to the United States Constitution and I will continue to actively support our right to own and bear arms."

Sens. Hutchison and Tester, and Reps. Souder and Ross authored a similar amicus brief prior to the U.S. Supreme Court hearing oral arguments in the District of Columbia v. Heller case in 2008.  In that brief, the four affirmed the view that individual rights are guaranteed by the Second Amendment, and were able to get a record number of Members of Congress—55 Senators and 250 Representatives—to sign it.