There are times in the life of a nation when ideas and attitudes that have been part of the conventional wisdom shift and there is very little that the forces of intolerance and the status quo can do about it. It seems we are reaching that point with the issue of full rights for our gay citizens. The recent decisions in the Proposition 8 case and the Don’t Ask, Don’t Tell (DADT) policy in California point are good indicators of this change.

While neither of these cases are finished by any means (though the issue of standing is one on Prop 8 is likely to end it at the 9th Circuit Court of Appeals) the rulings by the judges in each case have been devastating to the premise that our gay citizens are some how so different from the rest of us that they can be treated with a different standard of law.

This week another case will go to trial, again, challenging the military’s DADT policy. Major Margaret Witt was an Air Force flight nurse. She was a veteran of the liberation of Kuwait, Operation Desert Storm. She also happens to be a lesbian (again and always the very least important fact about Maj. Witt, but one that too many of the more conservative of our citizens is obsessed about) .

Today the Supreme Court is hearing an important gun control case. It is McDonald v Chicago. This is the companion law suit to 2008’s Heller v District of Columbia. In Heller the Supreme Court by a vote of 5-4 found that the 2nd Amendment provided an individual right to bare arms. The Justices based some of their thinking on the premise that individuals have a right to protect themselves in their homes and owning a hand gun is part of that right.

In McDonald, there is exactly the same set of circumstances. The reason this case is before the Court is that the District of Columbia is a Federal enclave, like an army fort or an embassy. The question before the Court today is does this right that they found in DC extend to the States as well. Since all five of the Justices that voted in favor of the individual right in Heller are still on the bench, it is all but a forgone conclusion that they will extend this right by virtue of due process to the States.

The lawyer for the gun rights advocates argued that it should be the 14th Amendment “protections or immunities” clause that extends this individual right to the states. This did not get a warm reception from any of the Justices and with good reason. The part of the 14th Amendment which reads :

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States

is called the “protections and immunities” clause. It was written after the end of the Civil War and was intended to help bring the first 8 Amendments of the Bill of Rights down to the State level (this was needed because of a Supreme Court decision that held that the Bill of Rights only applied at the Federal level). It has hardly been used as the “equal protection” clause has been the more standard method of extending Federal rights into the states.

The “protections and immunities” clause has basically been dormant since the Slaughter House decision. Going back and overturning that decision gave even Justice Scalia some pause. From SCOTUSblog’s very good analysis:

The first argument to collapse as the hearing unfolded was the plea by the lawyer for gun rights advocates, Alan Gura of Alexandria, VA, that the Court should “incorporate” the Second Amendment into the 14th Amendment through the “privileges or immunities” clause. In the first comment from the bench after Gura had barely opened, Chief Justice John G. Roberts, Jr., noted that the Court had essentially scuttled that argument with its ruling in the SlaughterHouse Cases in 1873. And within a few minutes, Justice Antonin Scalia — the author of the Heller opinion and the Court’s most fervent gun enthusiast — was sarcastically dismissing the “privileges or immunities” argument.

“Why,” Scalia asked Gura, “are you asking us to overrule 140 years of prior law….unless you are bucking for a place on some law school faculty.” The Justice said the “privileges or immunities” argument was “the darling of the professorate” but wondered why Gura would “undertake that burden.” And Scalia noted that the “due process” clause — an open-ended provision that he has strongly attacked on other occasions– was available as the vehicle for incorporation, and added: “Even I have acquisced in that.” Gura somewhat meekly said “we would be extremely happy:” if the Court used the “due process” clause to extend the Second Amendment’s reach.

I am not Gay, but I insist on Gay Rights. I am not Black either; in fact, I am not part of any identifiable racial minority. I am not Asian, Hispanic or Middle Eastern. I am not physically disabled. I am not too poor, I am not an immigrant and I am not a woman; but I believe that equality for all means just that.