Guns and ... Slaughter-House?!?

Lichtman, Steven SBLichtman at
Tue Feb 9 12:40:06 PST 2010

Robert Barnes had an interesting artice in yesterday's Washington Post about the strategy of the petitioner in the upcoming 2nd Amendment case, McDonald v. Chicago.  Evidently, Alan Gura is basing his arguments against Chicago's gun ban mainly on the theory that the 2nd Amendment is incorporated to the states via the Privileges or Immunities Clause (though there is a cursory argument based on the Due Process Clause).  Barnes states that Gura thinks this is the best way to proceed in the case, though he does not quote Gura directly on this point.

Sure enough, in his brief, Gura is asking directly for the Court to overrule Slaughter-House and Cruikshank.  The brief is a pretty good treatment of the history of the P-Or-I Clause; if my students had submitted it as a research project, I'd have given them an A.

But as constitutional lawyering?

I cannot fathom why Gura, who is trying to win the case, would structure his argument like this.  I suppose he could be assuming that he's going to win the case (I certainly am), and figuring that as long as he's got it in the bag let's try for something bigger.  Even so, are there any indications that the Roberts Court is going to be receptive to a P-Or-I argument?  Wouldn't such an argument, if successful, be the kind of body blow to state power that Roberts et al. are not usually inclined to deliver?

Steven Lichtman
Shippensburg University

P.S.: Links ...

Barnes' article:

Gura's brief:

Dr. Steven Lichtman
Assistant Professor and Pre-Law Advisor
Department of Political Science - 413 Grove Hall
Shippensburg University
1871 Old Main Drive
Shippensburg, PA  17257
(717) 477-1845


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