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Posted Sept. 25, 2009

Leading Lawyers Debate Gun Case Ramifications

Gura

Top lawyers from either side of the gun control debate squared off Tuesday at the Law School during an event co-sponsored by the Federalist Society and the American Constitution Society.

On one side was Alan Gura, who argued the landmark District of Columbia v. Heller case, in which the Supreme Court struck down as unconstitutional a ban on handguns in Washington, D.C.

His opponent at the debate was Dennis Henigan, the vice president for law and policy at the Brady Center to Prevent Gun Violence.

The pair took issue over whether, in the wake of Heller, the Supreme Court is likely to incorporate the right to bear arms at the state level, where it would affect local gun laws.

 “I’m fairly confident that the Supreme Court will incorporate the Second Amendment right,” Gura said. “The only question that’s up in the air is which path the court will take to do so.”

Henigan disagreed, though he acknowledged it’s likely the Supreme Court will agree to hear a case that requires it to address incorporation.

“I guess I’m here to tell you ‘Not so fast,’” Henigan said. “I do believe that there are credible arguments against incorporation, even given the reality of the Heller decision.”

Gura said the real question is whether the court will incorporate the right to bear arms using the privileges and immunities clause of the 14th Amendment, or by using the due process clause.

If the court uses the due process clause — which Henigan said is the only likely avenue through which it would consider incorporation — the court would need to look at three things: whether the right to bear arms is rooted in legal tradition, whether it’s represented by existing state law and the character and quality of the right itself.

The third issue is the most important, as the Second Amendment is firmly rooted in the right to self defense, Gura said. He pointed to other cases in which the court has considered the quality of other rights, including an abortion case in which he said the court affirmed the right to “define your own concept of existence.”

“If you have the right to define your own concept of existence by choosing to end a pregnancy, certainly you would have the right to define your own concept of existence by having arms with which to repel violent criminal attack that would end your existence,” he said.

Dennis Henigan

Dennis Henigan

Henigan agreed that the decision on whether to incorporate the right to bear arms could come down to an analysis of the nature of the right to bear arms.

“That’s where I think there may be a very strong argument against incorporation,” Henigan said. “Because despite Alan’s rhetoric about personal autonomy and all these other phrases that he used, the fact of the matter is, the Heller right is grounded in the common law right of self defense,” which is not the same as the right to bear arms, he said.

“If you look at the nature of the interest protected by the right as delineated in Heller, it is an interest long held to be within the province of the states,” which makes it unlikely that the Supreme Court would force the issue on the states, he said.

To listen to the entire debate, click here.