The rule requires gun dealers in Arizona, New Mexico, California and Texas to inform the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) if a person buys more than one semiautomatic rifle that accepts a detachable magazine and uses ammunition greater than .22 caliber within five days.

“These cartels — which are responsible for more than 40,000 deaths since 2006, including Americans like Border Patrol Agent Brian Terry — have various ways of obtaining weapons that don’t include lawful purchases from legitimate gun sellers,” he added.

Mexico has some of the strictest gun control laws in the world — the Washington Postreported on the one gun store in Mexico City on a military base that requires a thorough background check and only allows purchasers to buy one small-caliber weapon. According to the Post, 60,000 American guns have been recovered in Mexico from 2006 to 2010. Straw purchasers without a criminal record often buy from different stores in border states to evade detection.

“Instead of arbitrarily implementing this misguided and constitutionally questionable policy, the Obama administration should target actual criminals rather than law-abiding citizens and immediately secure our southern border against the northbound and southbound illegal smuggling of drugs, humans, cash, guns, fugitives and stolen vehicles,” added Perry.

“Like the majority of Americans, I believe that the Second Amendment guarantees an individual right to bear arms,” Obama wrote in a guest editorial that appeared in the Arizona Daily Star.

“And, in fact, my administration has not curtailed the rights of gun owners — it has expanded them, including allowing people to carry their guns in national parks and wildlife refuges.”

Those who advocate for gun safety, he said, need to recognize that “almost all gun owners in America are highly responsible,” and go to great lengths to obtain and use their weapons legally.

“Likewise, advocates for gun owners should accept the awful reality that gun violence affects Americans everywhere, whether on the streets of Chicago or at a supermarket in Tuscon,” Obama said.

The column offered by Obama comes on the heels of an open microphone at the Iowa Statehouse that revealed an embarrassing exchange between Republican lawmakers.

Iowa Rep. Jeff Kaufmann (R-Wilton) characterized proposed legislation that would allow Iowans to carry weapons without a background check or permits as a “crazy, give-a-handgun-to-a-schizophrenic-bill.” Kaufmann has since described his comment as an ill-timed joke, and has said he hopes the unintended public exchange will spark further discussion on the intersection of mental health issues and public safety.

Despite his now open assessment of the proposed bill, however, Kaufmann has not signaled that his support has waned for the measure. And, Iowa gun advocates believe he will continue to back the bill he summarized as “crazy.”

“We don’t believe he is in anyway backing down from his support for any of the gun bills currently being heard,” Sean McClanahan, president of the Iowa Firearms Coaltion told KCRG. “Our lobbyist as well as the NRA lobbyist works with Kaufmann on a daily basis at the capitol. He is one of our biggest supporters.”

The compromise envisioned by Obama contains three key steps, all related to the National Instant Criminal Background Check System:

1. Enforcement of existing laws, which would include timely and complete transfer of data by states to the national system
2. Rewards for states that provide the best data
3. Enhancements to the existing system to make it “faster and nimbler”

If Iowa lawmakers decide to pass the proposed legislation referenced by Kaufmann, Obama’s changes wouldn’t matter to the state. Under the bill, any Iowan of legal age would be able to carry a weapon, and no background check would be required.

“Most gun-control advocates know that most gun owners are responsible citizens. Most gun owners know that the word “commonsense” isn’t a code word for “confiscation.” And none of us should be willing to remain passive in the face of violence or resigned to watching helplessly as another rampage unfolds on television,” Obama said.

Because there is such a wealth of guns seized from drug cartels in Mexico and because the vast majority of them are tampered with as to make their origins unclear, statistics on the percentage of legally-sold American guns that end up in the hands of drug cartels are notoriously unwieldy. Figures range from a still-significant 12 percent to as high as 87 percent, though a percentage quite that high is unlikely, given the growing trend among cartels of using automatic and other military-grade weapons, which are illegal to sell in the U.S. (the discrepancy has arisen because the vast majority of seized weapons are never traced at all). Even those statistics may not tell us much about the actual presence of guns in Mexico, because they’re based on the number of guns seized by law enforcement in Mexico. There’s no telling how many more guns are still on the street, nor where they may have come from.

But a confluence of recent stories from the border region show that there may be bigger issues that need attention than closing gun show loopholes. A CBS News investigation that came out in late February exposed a shocking practice within the Federal Bureau of Alcohol, Tobacco and Firearms (ATF). The story has received little notice except in gun enthusiast circles, who have seized upon it as a sign that ATF is corrupt and that tightening gun ownership restrictions would be pointless.

The CBS story alleges that there is an ongoing practice in the ATF of letting guns “walk”: ignoring and even encouraging licensed gun dealers who sell large quantities of guns to known gunrunners. While the ATF has refused to comment on the story, six former agents and executives who spoke anonymously to CBS said that “Project Gunrunner” agents, who were deployed specifically to stop American guns from being smuggled into Mexico, actually told wary gun dealers to continue selling to questionable buyers. Why? CBS’s sources say that the ATF sent the guns walking so that they could attempt to track them to their destinations and make bigger busts. In practice, however, the guns have proved tremendously difficult to track, and that fact has had fatal consequences for at least one ATF agent.

Agent Brian Terry was patrolling a known smuggling route near the border in Arizona on December 14, 2010, when gunrunners fired on him. He didn’t survive. Two assault rifles found at the scene were traced to a legal purchase by one Jaime Avila, who is now among 20 people indicted for fraud and conspiracy (PDF) by the state of Arizona. Avila and the other 19 named in the indictment are accused of being “straw purchasers,” or middlemen who use their clean criminal records to legally buy guns and then bring them to smuggling rings. Avila and the rest were known to ATF but allowed to proceed with their purchases — 575 in all — under Project Gunrunner.

That name — Jamie Avila — serves as a chilling but wholly coincidental reminder of a very similar, more recent story out of Mexico. On February 15, two Immigration and Customs Enforcement agents, Jaime Zapata and Victor Avila, were attacked by gunmen in the state of San Luis Potosí. Avila is recovering from his wounds in Texas; Zapata was no so lucky. Following Zapata’s death, an investigation resulted in several arrests, including that of Sergio Antonio Mora, a higher-up in the notorious Los Zetas drug cartel. Three of the other arrests were made in the U.S. Three men arrested in a Dallas suburb have been connected to the murder, but they weren’t gunmen. Like those in the Arizona ring, they are considered straw purchasers in a cartel-connected gunrunning ring. A gun left at the scene of Zapata’s murder was, like so many others involved in cartel violence, traced back to the U.S. It is not known if the gun is among those allowed to “walk” by ATF agents.

Schumer and his staff are still in the drafting stage, but the New York senator has shared salient details of the bill, which currently has no co-sponsors in the Republican-dominated House of Representatives. It would cut funding to states that fail to comply with all aspects of the federal background check system, create a national do-not-sell database of people not legally eligible to own guns and require both licensed dealers and private sellers to perform a background check on anyone seeking to buy a gun.

The first of those three is likely a response to the results of an AP review that were released last week. The review found that 26 states have thus far not fully complied with a 2008 federal law passed in the wake of the 2007 Virginia Tech massacre requiring all states to furnish mental health records to the national background check system. Of those 26 states, nine failed to provide a single name in two years. The remaining 17 all provided fewer than 25 records, a figure several thousand times smaller than where it should be, according to National Institute of Mental Health statistics stating that about 6 percent of Americans, or more than 18 million people, suffer from a serious mental illness. Already, the states that have failed to supply records could be hit with a 3 percent cut in federal justice funding; Schumer’s proposed bill would up that to 25 percent.

The latter two aspects of the bill are Schumer’s response to what he feels are lenient regulations regarding private gun sales. All states prohibit the sale of handguns to minors, felons, illegal immigrants, the mentally ill and disabled and drug addicts. However, “gun show loophole” laws in many states make it easy for even those legally prohibited from buying a gun to do so without seeking out the black market.

Such laws are commonly known as “gun show loopholes” because of the infamous ease of legally obtaining firearms without a background check at gun shows, but they in fact apply to any sale of a gun not made through a licensed dealer. By claiming to be selling guns from a personal collection and not being in possession of enough firearms to make that claim unlikely, anyone can legally sell guns to anyone else without performing a background check, as long as the guns in question aren’t of the type that require a federal license under the National Firearms Act (those being automatic weapons and sawed-off shotguns and rifles, as well as silencers and explosives) and the sale doesn’t somehow cross state lines. In all, 33 states allow private sales without any regulation, another four allow private sales with no background check for long guns such as rifles, and one, Florida, has different laws from county to county. In just twelve states are background checks required for all gun purchases: seven whose laws do so explicitly and five where gun owners need permits whose application processes include a background check.

Although state laws still make it illegal to sell a gun to someone legally barred from owning firearms, in states with no background check requirements, that law is virtually unenforceable in private sales. Gun advocates argue that the presence of legally acquired private sale guns is negligible in crime. However, a U.S. General Accounting Office report from 2009 indicates that the biggest problem with gun show loopholes may not be domestic at all. The GAO reveals that over 87 percent of all drug cartel weapons seized by police in Mexico were acquired legally from gun shops and gun shows in the U.S. and smuggled across the border. Of the four border states, only California does not have the gun show loophole built into its state firearm laws.

Schumer was forthcoming on many aspects of his intended bill during Wednesday’s event, but one aspect of it that he has not yet made entirely clear is the “do-not-sell list” provision, which he says would “provide greater incentive for reporting individuals who should not have access to guns.” Presumably, this is to address cases like that of alleged Tucson gunman Jared Loughner, who was assessed as at-risk by several professors and peers but never legally declared mentally incompetent or committed to a mental health institution, voluntarily or otherwise. But privacy and civil liberties advocates will surely bristle at the notion of any citizen being able to report another to a national database of potentially dangerous people. Whether or not the bill as drafted will address this remains to be seen.

Yet Despite Schumer’s enthusiasm about the bill, if the national tenor of the gun control conversation is any indication, he may not find much support for it in the Republican-controlled House of Representatives (if indeed it makes it out of the Senate). The American Independent News Network has previously reported on legislative attempts in Colorado and Texas to allow concealed weapons on the grounds of educational facilities, as well as a ballot initiative being pushed by a political action committee in Florida that would eliminate all permits for gun ownership and concealed carry. According to Florida state records, the ballot initiative still has yet to receive a single signature, but that’s no indication that such ideas exist only on the fringe of American society. A Utah bill allowing any legal gun owner to carry a concealed weapon without a permit stalled in committee this week, but its sponsor, Rep. Carl Wimmer (R-Herriman) is hopeful that he can get the bill passed after revising it. Meanwhile, Wyoming is set to pass just such a bill. The bill, which eliminates permits for concealed weapons, has passed the Senate and has overwhelming support (48 to 8) in a preliminary House vote. An amendment to the bill that would ban the intoxicated from carrying concealed weapons was voted down.

David McFarling, president of the NC Rifle and Pistol Association, said his group is optimistic that the new Republican-led General Assembly will look favorably on expanding the areas where concealed guns can be carried.

McFarling said putting fewer public places off limits for guns would enhance public safety by enabling citizens to defend themselves. He said his members want to carry concealed weapons in “restaurants, theaters and malls — where you really might need it.”

The Tucson shooting occurred Jan. 8 in a shopping center where accused shooter Jared Loughner approached U.S. Rep. Gabrielle Giffords (D-Ariz.) during an outdoor meeting with constituents. Six people were killed and more than a dozen were injured, including Giffords, who was shot in the head.

“It’s very sad anytime you have something like that happen,” said McFarling, 53, an electrical contractor and sport shooting enthusiast from Chapel Hill. “But gun laws one way or another wouldn’t have made any difference. That boy was crazy. He would have done what he was going to do anyway.”

North Carolina gun laws ban concealed weapons in most public places and all gun owners are required to pass a federal background check and a review by their local sheriff.

Roxane Kolar, executive director of  North Carolinians Against Gun Violence, said the laws should not be changed.

“Our guns laws are fine. They’re very strong,” Kolar said. “I don’t think we need to see a weakening. I don’t think we need more guns in public places.”

McFarling thinks more concealed guns carried by law abiding citizens would prevent mass shootings.

“It’s just a shame in Arizona there wasn’t someone there with a permit to carry,” McFarling said. “He would saved a lot of pain and anguish.”

Kolar said previous attempts to expand the areas where concealed firearms can be carried have met broad resistance from restaurant owners and the general public.

“People don’t support it,” she said, adding, “If legislators listen to their constituents, it won’t pass and that’s what’s important.”

But McFarling sees an opportunity with Republicans in control of the General Assembly for the first time in more than a century.

“Now that the Republican/conservatives have the power in the Legislature, hopefully we’ll be able to get some of these things cleaned up,” he said.

McFarling said the NCRPA, which he said  has a membership of about 1,800, also will push for passage of the so-called “Castle Doctrine” bill. The proposed law would allow occupants of a home to use deadly force against an intruder regardless of whether the intruder is carrying a weapon. The law would provide the shooter immunity from criminal prosecution as well as civil action.

Allowing home occupants more leeway in using firearms is opposed by social workers who visit homes and private employees such as pest exterminators and delivery people who feel they would be at greater risk of a mistaken shooting, Kolar said.

“We have a self-defense law on the books. It works fine,” Kolar said. “[The Castle Doctrine] law is reckless. It’s vigilantism.”

On another front, McFarling said he would oppose outlawing the high volume ammunition clips used in the Tucson shooting. The gun used in Tucson had a magazine with at least 30 rounds, a clip that can be emptied in 10 seconds of firing. The shooting prompted calls for renewal of a federal ban on large capacity magazines holding more than 10 rounds. The ban expired in 2004.

McFarling said the shooter, not the shooting capacity, was the problem.

“The clip just a inanimate object. It’s the way it’s used. Unfortunately [the Tucson shooter] chose to use one in a very unlawful and malicious manner,” said McFarling, who uses a 19-round clip in target shooting competitions.

Last week, Louisiana Gov. Bobby Jindal signed a bill allowing gun owners in his state to carry firearms into houses of worship. Just days earlier, the Supreme Court extended federal gun rights provisions to city and state governments. And last summer, Arizona legislators voted to allow handguns in bars and President Obama signed a bill permitting firearms in national parks.

[Congress1] Despite fears on the right that Obama would trample the Second Amendment and take people’s guns, his presidency has so far been marked by a string of pro-gun victories and a reinvigorated gun advocacy movement — the result of a Democratic leadership that has proven unwilling to take on powerful firearm interests.

“It’s been very clear that there’s a solid pro-gun, pro-NRA majority on the floor of Congress, and you can’t do anything against it,” Rep. Jerrold Nadler (D-N.Y.), a gun control advocate who has received an “F” grade from the National Rifle Association, told TWI. “And that’s the entire Republican Party and a fraction of the Democratic Party, which is a majority.”

The proliferation of pro-gun measures under President Obama and the Democratic-controlled Congress reflects the party’s learned reticence on the issue. Democrats remain haunted by memories of 1994, when gun control advocacy by President Bill Clinton led the pro-gun lobby to wage fierce campaigns that ousted several lawmakers aligned with the cause.

“Democrats learned a substantial lesson in 1994, and no anti-gun measures are ever going to come forth in this Congress,” said Don Kates, a lawyer and criminal law expert at the Pacific Research Institute.

The NRA, the leading gun rights group and one of Washington’s most formidable lobbies, has forcefully staked out its territory in Congress. Last month, Democrats, fearing an NRA backlash on a campaign finance measure, carved out what was widely considered a special exemption for the group. Subsequently, the NRA dropped its opposition, and the measure passed the House.

“Some people are so terrified of the NRA vote score that they’ll vote for anything the NRA says to vote for and against anything they say to vote against,” Nadler said. “It’s unfortunate in the extreme.”

In the last 20 years, the NRA and other pro-gun groups have outspent gun-control advocates by over 20-to-1 on lobbying, according to the Center for Responsive Politics.

Some gun control advocates expected more from this president. As a state senator in Illinois, Obama threw his weight behind various regulatory measures. He backed a ban on semiautomatic assault weapons and voted to limit handgun purchases to one a month per person.

But Obama notably distanced himself from the cause during the 2008 election, proclaiming his commitment to the gun rights. “I believe in the Second Amendment,” he said. “I believe in people’s lawful right to bear arms. I will not take your shotgun away. I will not take your rifle away. I won’t take your handgun away.”

One year into his presidency, the Brady Center to Prevent Gun Violence gave Obama an “F” across the board on gun control issues. The Chicago Tribune joked the following month that “[o]n the list of issues for which Obama is willing to put himself on the line, gun control ranks somewhere below free trade with Uzbekistan.”

As a result, gun rights advocates remain about as unimpeded in their cause today as during the Bush administration.

“The political climate hasn’t changed a lot,” said Ladd Everitt, spokesman for the Coalition to Stop Gun Violence. “If you look back at when Republicans had control of government before 2006, you pretty much saw the same picture.”

“We were hoping for Obama to take a more forceful position in terms of gun violence prevention,” Everitt added, positing that Democrats have backed away due to pressure from the NRA, conservatives in the party, the disproportionate number of single-issue gun voters and the force of industry behind the gun rights cause.

“Gun rights organizations like the NRA saw President Obama’s history as being one of anti-gun owners’ rights,” said Bob Cottrol, a constitutional lawyer and gun law expert at George Washington University, “though that hasn’t been the case so far in his presidency.” But that perception, he said, led to an early and ongoing backlash among passionate gun owners that has furthered the pro-gun cause under Obama.

Kates put it more succinctly: “Historically, Democrats being in power has been a godsend for the finances of pro-gun groups.”

But according to David Kopel, a Second Amendment expert at New York University and gun rights advocate, Obama is subtly doing more to stem the gun movement than Bush. Kopel points out that Bush’s Supreme Court appointees, Samuel Alito and John Roberts, have been more pro-gun than Obama’s appointee Sonia Sotomayor, who voted on the losing side of the recent 5-4 McDonnell v. Chicago case, which limited the types of gun control regulations cities and states can adopt.

“Sotomayor said she considered [the 2008] Heller [ruling] to be settled law, that she knew how important the individual right to arms was, and then less than a year later she turned around and joined an opinion that said Heller should be overturned,” Kopel said.

But the replacements of two left-leaning justices with two other left-leaning justices — Sotomayor and, if confirmed, Elena Kagan — represents more of a status-quo perpetuation than a victory for gun control advocates.

Obama’s reluctance to take up gun control as president, after aligning himself with it for most of his career, signals an increasingly toxic national political climate for the cause and reflects the Democratic Party’s shift.

“I’d say President Obama has been politically astute in not following the Bill Clinton policy of trying to make gun control a top-three national issue,” Kopel said.

Added Kates of the Pacific Research Institute: “Generally speaking, gun control advocates have other ambitions, other objectives, and for now they’re willing to drop their anti-gun concerns in exchange for not being defeated in other matters.”

For them, the court’s groundbreaking decision couldn’t have been more beneficial to the cause in November. Now, Democratic candidates across the map figure they have one less issue to worry about on the campaign trail. And they won’t have to defend Republican attacks over gun rights and an angry, energized base of gun owners. “It removes guns as a political issue because everyone now agrees that the Second Amendment is an individual right, and everybody agrees that it’s subject to regulation,” said Lanae Erickson, deputy director of the culture program at centrist think tank Third Way.

I find this reaction a little odd. Gun control hasn’t been a major election issue since the 1990s, and outside of a few urban districts and some rural areas in the South and West, it’s not a particularly salient concern. Progressive organizations like the Center for American Progress have briefs on gun control, but they focus more on keeping criminals and the mentally ill from obtaining guns, and less on restricting the kinds of guns Americans can own.

Indeed, Democrats won’t even touch commonsense gun control legislation, like the assault weapons ban. During his campaign for president, Barack Obama pledged to reinstate the ban, but Obama has yet to approach the issue, and given the other challenges ahead of him, there’s little chance that he will. Simply put, gun control is one area of public policy where conservatives have all but won the argument, whether they realize it or not.

Video after the jump:

Supreme Court (WDCpix)

In announcing on Wednesday that it would review a case that asks whether individuals have a fundamental right to bear arms under the U.S. Constitution, the Supreme Court did more than just step into a heated debate over gun control. Although McDonald v. City of Chicago is on its face about Chicago’s ban on handguns, legal experts say it also raises a far broader question of constitutional interpretation that bears on how and whether the Constitution protects a wide range of rights from state infringement. A finding that the Second Amendment protects individuals’ right to own a gun could therefore have the unexpected outcome of also providing more solid ground for recognition of the right to abortion, to sexual privacy, to gay marriage, and to a wide variety of other rights that conservative justices on the court and “originalist” constitutional scholars have long opposed.

The issue in the Chicago case, as defined in the petition to the court, is “[w]hether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.”

Illustration by: Matt Mahurin

The court’s decision to take the case and consider whether the Second Amendment might be “incorporated” – applicable to the states – by the “privileges or immunities clause” of the Fourteenth Amendment suggests that the court is open to reconsidering a long line of cases dating back to 1873 that read that clause narrowly and thereby restricted the ability of the Fourteenth Amendment to protect fundamental rights. Although the Supreme Court has acknowledged many rights under the Fourteenth Amendment since then, it has done so based on the more tenuous argument that they’re protected by the more limited “due process” clause, which says that the State shall not “deprive any person of life, liberty, or property, without due process of law”. Lawyers and judges have at times resorted to complicated legal gymnastics to make the argument that a newly-recognized right falls under “substantive due process.”

That argument has left those rights vulnerable to an increasingly aggressive attack by conservatives who claim judges are engaging in “judicial activism” by recognizing rights not specifically enumerated in the Constitution. The “privileges and immunities clause”, which states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” has the potential to be read much more broadly.

The Privileges or Immunities Clause “was written to forbid state and local governments from trampling on the substantive fundamental rights of all Americans, thus securing the ‘unalienable rights’ to which the Declaration referred,” argues David Gans, Director of the Constitutional Accountability Center’s Human Rights, Civil Rights & Citizenship Program in a post at Balkinization.

Scholars from across the political spectrum appear to agree with him, and many joined in a brief submitted to the court in this case urging the justices to reverse the court’s longstanding precedent. In a “friend-of-the-court” brief drafted by the Constitutional Accountability Center, six constitutional law professors urged the Supreme Court to review the Chicago case and restore the original meaning of the Fourteenth Amendment, as protecting all “privileges and immunities” not enumerated in the Constitution.

“In discussing the fundamental rights of citizenship, the framers regularly included a long list of fundamental rights – such as the right of access to the courts, the right to freedom of movement, the right to bodily integrity, and the right to have a family and direct the upbringing of one’s children – that have no obvious textual basis in the Bill of Rights,” says the brief. “These were core rights of personal liberty and personal security that belong to ‘citizens of all free governments;’ it did not matter that they were not enumerated elsewhere in the Constitution.”

The libertarian Cato Institute and Institute for Justice similarly wrote in an amicus brief to the court: “the issue of the Second Amendment’s ‘incorporation’ implicates not only the right to keep and bear arms – important enough by itself – but the larger debate over the origin, nature, and extent of all our natural rights and how the Constitution protects them.”

While the language of the privileges and immunities clause seems clear, shortly after its adoption, in 1873, in a set of cases known as the Slaughterhouse Cases (affirming Louisiana’s right to regulate slaughterhouses), the Supreme Court narrowly read the Fourteenth Amendment to protect only “privileges or immunities” conferred by federal citizenship, not by state citizenship. It specifically did not limit the state’s police powers, the court ruled. The effect of that ruling was to gut the “privileges or immunities” clause, scholars have argued, and it’s led to serious questions and confusion over when and how states can regulate rights that are thought to be fundamental but are neither specifically conferred by the federal government nor mentioned in the constitution — often called “unenumerated” rights.

Whether the constitution protects such unenumerated rights remains one of the most hotly-debated matters of constitutional interpretation, and has sharply divided the conservative and liberal wings on the court. Justice Antonin Scalia, for example, has long criticized the notion that rights such as the right to an abortion or to privacy deserves protection by the U.S. Constitution. Although the Supreme Court has recognized some of these rights, based on its interpretation of the “due process clause” of the 14th Amendment, those cases have been increasingly attacked by the conservative members of the court, and by conservative scholars, as not being grounded in the original text of the Constitution.

“You have this assault on Roe [v. Wade] from the Right, claims of judicial activism from the right, saying judges shouldn’t be doing this,” explained Doug Kendall, President of the Constitutional Accountability Center. “There’s been an aggressive assault on the entire idea that there is incorporation and that judges should have a role in protecting liberties,” said Kendall, who organized the law professors’ submission of their amicus brief. “That’s fueled the conservative rise over the last 30 years in the courts.” In response, “there’s been a flowering of scholarship that goes back to the original debates and makes an overwhelming, compelling case for the proposition that the privileges or immunities clause was intended to protect a robust set of human and civil rights.”

Constitutional scholars ranging from Akhil Reed Amar, a liberal law professor at Yale Law School, to Randy Barnett, a conservative libertarian at Georgetown University Law School, have argued in books and articles that the “privileges or immunities clause” means what it says – that the states cannot infringe on a broad range of unenumerated civil rights of citizens. As the constitutional law professors write in their brief to the Supreme Court, “the Slaughterhouse cases read the Privileges or Immunities clause so narrowly as to essentially read it out of the Amendment,” but as Amar wrote in a 2001 Yale Law Review article the brief cites: “[v]irtually no serious modern scholar – left, right and center – thinks that this is a plausible reading of the Amendment.”

Of course, if the court does decide to breathe new life into the privileges or immunities clause, it will ignite a new debate about what those rights are. But their defenders argue those rights are vast. The Ninth Amendment specifically says that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  The privileges and immunities clause of the 14th Amendment, the constitutional scholars argue in their brief, “is the textual hook in the Fourteenth Amendment for protection of unenumerated fundamental rights, as well those substantive fundamental rights articulated in the Bill of Rights, including the Second Amendment right to keep and bear arms.”

The law professors quote the 1866 report of the Joint Committee on Reconstruction, which interpreted the Privileges or Immunities Clause to “afford broad protections to substantive liberty, encompassing all ‘fundamental’ rights enjoyed by ‘citizens of all free Governments’: ‘protection by the government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject nevertheless to such restraints as the Government may justly prescribe for the general good of the whole.’“

Because the Fourteenth Amendment was focused on giving newly freed slaves the rights of citizens, says Kendall, it focused on protecting “the rights of heart and home. Your ability to control your family, your children’s education, reproductive choice and sexual intimacy.”

Not that everyone agrees with that view. A group of legal historians, for instance, filed a brief with the Seventh Circuit Court of Appeals in the McDonald case arguing that Congress’s intent in passing the Fourteenth Amendment was unclear. But until now, the Supreme Court has never agreed to hear a case that directly raised this issue.

Even if the court wants to find that the Second Amendment’s right to bear arms applies to the states, it might still sidestep the broader issue raised by this case and avoid overturning more than a hundred years’ worth of precedent. Liberals have invoked the due process clause of the Fourteenth Amendment to argue for other fundamental rights, and the court could find the right to bear arms is similarly protected by the due process clause, rather than by the privileges and immunities clause. But even that would be a victory of sort for progressives, Kendall said.

“It would force Justice Scalia to utilize substantive due process” — an idea he has long criticized in the context of abortion and other controversial rights –  “to achieve the results he wants in the guns case,” said Kendall. “As long as the court finds incorporation” — that the Bill of Rights applies against the states — “it will provide a basis for undercutting Justice Scalia’s argument against it.”

For some conservatives, then, winning the right to carry a gun could turn out to by a Pyrrhic victory.

It’s the first time the NRA has weighed in against a Supreme Court nominee and warned senators that their votes affect how the NRA “scores” their records. Although that’s clearly had some affect, eight of the 36 senators endorsed by the NRA in their last elections have said they will vote to confirm her. Those include Democrats Max Baucus and Jon Tester of Montana, Ben Nelson of Nebraska, Arlen Specter of Pennsylvania and Tim Johnson of South Dakota, as well as Republicans Lindsey Graham of South Carolina, Lamar Alexander of Tennessee and Mel Martinez of Florida.

The NRA has also wavered on how strongly it will weigh this vote, perhaps realizing that it would alienate some key supporters. NRA spokesman Andrew Arulanandam told the LA Times that the Sotomayor vote was important but might count for less than a future Senate vote on gun control. “The NRA has yet to determine the weight of this vote, but we have informed people that this vote will count,” he said. “Sounds to me like the NRA has been getting some pushback of its own,” observes Christy Hardin Smith of Firedoglake.com.

Meanwhile, gun control groups are relishing the notion that the NRA may be losing its sway. “This vote is a test of the conventional wisdom that they are an 800-pound gorilla capable of scaring up votes,” Doug Pennington, a spokesman for the Brady Center to Prevent Handgun Violence, tells the LA Times. “Well, so far, they have been unable to keep the votes of the senators they endorsed in the last campaign.”

The gun issue was a hot topic at Sotomayor’s hearing, of course, with senators grilling her on why she would not acknowledge that the right to bear arms was an individual “fundamental” right enforceable against the states. Sotomayor answered that she was just following settled court precedent, and carefully avoiding what Jeff Sessions has called “the siren call to judicial activism.”