Another sort of revolution brewing?

[Stonehead]

Killing Slaughterhouse (Reason.com)

 

Gura is asking SCOTUS to not rely solely on stare decisis but to actually address the meaning of the Constitution, in particular, the privileges and immunities clause of the 14th Amendment. Could have far-reaching implications beyond gun rights.

 

Check out Justice Scalia's questioning of Gura:

MR. GURA: Although it's impossible to give a full list of all the unenumerated rights that might be protected by the Privileges and Immunities Clause, just as it is impossible to do so under the Due Process Clause, at least with respect to the Privileges and Immunities Clause we have wonderful historical guideposts. There are -

JUSTICE SCALIA: Mr. Gura, do you think it is at all easier to bring the Second Amendment under the Privileges and Immunities Clause than it is to bring it under our established law of substantive due ?

MR. GURA: It's -

JUSTICE SCALIA: Is it easier to do it under privileges and immunities than it is under substantive due process?

MR. GURA: It is easier in terms, perhaps, of -- of the text and history of the original public understanding of -

JUSTICE SCALIA: No, no. I'm not talking about whether -- whether the Slaughter-House Cases were right or wrong. I'm saying, assuming we give, you know, the Privileges and Immunities Clause your definition, does that make it any easier to get the Second Amendment adopted with respect to the States?

MR. GURA: Justice Scalia, I suppose the answer to that would be no, because -

JUSTICE SCALIA: Then if the answer is no, why are you asking us to overrule 150, 140 years of prior law, when -- when you can reach your result under substantive due -- I mean, you know, unless you are bucking for a -- a place on some law school faculty -

(Laughter.)

MR. GURA: No. No. I have left law school some time ago and this is not an attempt to -- to return.

JUSTICE SCALIA: What you argue is the darling of the professoriate, for sure, but it's also contrary to 140 years of our jurisprudence. Why do you want to undertake that burden instead of just arguing substantive due process, which as much as I think it's wrong, I have -- even I have acquiesced in it?

source: http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-1521.pdf