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There is some reason to hope. Since the 1997 case of Washington v. Glucksburg, the Court has used a two-pronged test to recognize previously unprotected rights, which test it may apply in McDonald. Because the right to keep and bear arms is both deeply rooted in our nation’s history and traditions and can be defined with particularity, it is more in tune with the original public meaning of the Privileges or Immunities Clause — even if formally done under the Due Process Clause. The majority of the Court, liberal and conservative justices alike, has endorsed the Glucksberg test — which could be a surer way forward on the protection of natural, civil, and political rights.
Coming away from the argument, the right to keep and bear arms appears to be well on its way to being restored for all citizens across the country — and that is a good thing. The fight to restore the Fourteenth Amendment, however, to its proper role as principled guarantor of our freedoms against state oppression, goes on. In the words of someone unsympathetic to gun rights but who presciently (and ironically) captured the mood of our times, the cause endures, the hope still lives, and the dream shall never die.
Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review. He recently coauthored an article in the Georgetown Journal of Law & Public Policy regarding the Privileges or Immunities Clause and the proper way to extend the right to keep and bear arms to the states.
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