Chicago Gun Case Could Restore Other Civil Rights

by Clark Neily - February 26th, 2010 - Las Vegas Review-Journal

Gun owners aren't the only ones who should pay close attention to the "McDonald" Chicago gun-ban case, which will be argued before the U.S. Supreme Court March 2. If properly decided, the case could restore an important legal tool to protect the rights of small business owners and homeowners who face oppressive state and local government regulations.

Because the Supreme Court in McDonald may consider reinvigorating what is known as the "Privileges or Immunities clause" of the 14th Amendment, those engaged in civil rights battles nationwide may soon have a new arrow in their quiver to better defend the rights of homeowners and entrepreneurs. The clause states "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

After the restoration of free speech rights, eviscerated ever since progressives gained ascendancy over our courts in the last century, it would be truly astonishing if Justice Kennedy could be persuaded to take this monunmental step. It is clear that with the replacement of Rehnquist by Roberts, individual liberties have gained a powerful new voice. Thomas, Alito and Scalia are solidly on board with Robert's new activism in support of the rule of law and our Constitution.

Kennedy is the swing vote between these four and the progressive wing of the court.

Stevens, Ginsburgh, Breyer and Sotomayor will oppose this. You can expect another dissent with snarling and angry language at the idea that the rule of judges will be weakened through a return to respect for the Constitutional rights of citizens.

Of course, first Kennedy has to sign on - and that is never a sure thing. Who knows where he stands on anything? As a moderate his views are whimsical and inconsistent. Like the last so-called moderate on the court, O'Connor, his votes are never based on a theory of government or law that anyone can make sense of.

That is why I cannot get too excited about the chances for a sane ruling on this case until Kennedy actually votes.