Two years ago, the Supreme Court decided in District of Columbia v. Heller that the Second Amendment protects an individual right to keep and bear arms. But the Second Amendment, like the rest of the Bill of Rights, only applies to the federal government, so yesterday, the Supreme Court heard oral argument in McDonald v. Chicago. McDonald will determine whether the vast majority of Americans who live in the states share the same gun rights as District residents.
It wasn’t until the post-Civil War Fourteenth Amendment, however, that the Constitution protected individual rights against state tyranny, guaranteeing that no state could, for example, “deprive any person of life, liberty, or property without due process of law.” Using this Due Process clause, the Supreme Court has selectively “incorporated” almost all of the Bill of Rights against the states. Individuals thus gained the ability to challenge state violations of the freedom of speech, the right to be secure against unreasonable searches, and a host of other rights. The Second Amendment could easily be incorporated against the states under the Due Process Clause.
A different Fourteenth Amendment clause, however, forbidding states from passing “any law which shall abridge the privileges or immunities of citizens of the United States,” is a better way of extending the right to keep and bear arms. This Privileges or Immunities Clause provides an approach that not only is more historically accurate, but prevents some of the judicial overreach observers of all stripes deride. Unfortunately, the Court eviscerated this clause in the infamous and now nearly universally reviled Slaughterhouse Cases in 1873.
In Slaughterhouse, the Court ignored the Privilege and Immunities Clause’s substantive rights protections and thus let loose the power of the states against their citizens in direct contradiction to the letter and spirit of the Civil War amendments. Reconstruction fundamentally changed the relationship between the federal and state governments — and between each of those and individuals — but reactionary justices refused to enforce this new constitutional structure. Such judicial abdication set back civil rights and also warped our constitutional jurisprudence, with the narrow “substantive due process” doctrine having to cover an assortment of enumerated and unenumerated rights. Scholars from across the political spectrum — liberal, conservative, and libertarian — agree that Slaughterhouse was wrongly decided and that the Privileges or Immunities Clause should be returned to its rightful place in our constitutional discourse.
From the initial questioning in yesterday’s arguments, it was clear that those living in Chicago — and, by extension, New York, San Francisco, and other places with extreme firearm restrictions — will soon be able to rest easy, knowing that they will be able to have guns with which to protect themselves. Unfortunately, the Court did not seem inclined to adopt the arguments advanced by petitioners’ counsel Alan Gura (and supported by Cato) that the Privileges or Immunities Clause was the way to go. Chief Justice Roberts expressed reluctance at having to overturn Slaughterhouse and other justices joined in concerns over how activist judges would use the Clause if the Court revived it — even if that were the path that hewed more closely to the constitution’s true meaning.
This turn of events is unfortunate because reviving the Privileges or Immunities Clause, far from giving judges free reign to impose their policy views, would actually tie them closer to the text, structure, and history of the Constitution. As it stands now — and as it seems will be the case after McDonald — many of our most cherished rights are constitutionally protected only to the extent that judges are willing to label them as sufficiently “fundamental.” That interpretive method fosters an unprincipled jurisprudence and hurts the rule of law.
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.
