The Privilege, or Immunity, of Bearing Arms

Sometime this spring, the U.S. Supreme Court will decide whether the Second Amendment to the Constitution applies to state and local governments. Many enthusiasts of gun rights might still be surprised to learn that the Second Amendment has never applied to state and local governments. It has protected, at least recently, the right to keep and bear arms against infringements by only the federal government and its enclaves, like the District of Columbia.

Actually, none of the Bill of Rights applies to the states, but the Supreme Court has decided that many of the rights it provides are protected by the Due Process Clause of the Fourteenth Amendment (“nor shall any State deprive any person of life, liberty, or property, without due process of law”), which does apply to the states. Advocates of gun rights are very interested in whether the Court will incorporate the right to keep and bear arms into the Fourteenth Amendment. But many conservative legal activists and academics are more interested in whether a different clause of the Fourteenth Amendment is used for that purpose. In their view, the framers of the Fourteenth Amendment intended that the Privileges or Immunities Clause of the Fourteenth Amendment (“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”) would protect substantive rights while the Due Process Clause, as its name implies, would protect procedural rights. The gun control case that the Supreme Court is about to decide, McDonald v. City of Chicago, is seen as an opportunity to right an historical wrong, and so much more.     

In some circles, it is an article of faith (and partly superstition) that the Privileges or Immunities Clause was fatally misinterpreted at the outset by the Slaughter-House Cases and if only that case could be overturned economic liberties, which the Supreme Court has ignored since the New Deal, could enjoy a new springtime under a reborn Privileges or Immunities Clause.

The Supreme Court’s 1873 decision in the Slaughter-House Cases was the first time the Court interpreted the Fourteenth Amendment, which had been ratified just five years before. In that case the Court decided that an amendment whose purpose was “the freedom of the slave race [and] the security and firm establishment of that freedom” did not prevent the state of Louisiana from requiring New Orleans butchers to slaughter livestock at a location downriver from the city. The Court said that the Privileges or Immunities Clause  protected only rights of national citizenship, which did not include the right to butcher animals anywhere in New Orleans free of regulation. The examples the Court then gave of what were rights of national citizenship weren’t very helpful; the only one that has had any practical use has been the right to travel interstate.

As a result, the Privileges or Immunities Clause is the last frontier of the Constitution. Conservatives as well as liberals have been eager to open it up for the cultivation of new rights—and old ones. The libertarian Institute for Justice, which filed an amicus brief in McDonald, had previously tried without success to get the Slaughter-House Cases reversed in a series of cases in which they argued that the Privileges or Immunities Clause protected a right to earn a living. (I represented their opponent in one of them.)

This time the right to keep and bear arms is the vehicle, but the objective of eventually regaining protection for economic liberties seems to be the same. Alan Gura, counsel for the petitioner in McDonald, hinted at that objective in his brief by complaining that “[s]tate violations of rights understood and intended by the ratifying public to receive significant Fourteenth Amendment protection are not meaningfully secured by federal courts.” At oral argument, the justices struggled to get Gura to divulge what those insecure rights might be. Finally, at the very end of the argument Justice Alito got him to admit that they included the right to contract.

A remark by Justice Thomas in an earlier case encouraged this Privileges or Immunities project, but he has also said that while the clause should be reconsidered it shouldn’t be used expansively. There didn’t seem to be any other enthusiasm for the Privileges or Immunities project on the bench during oral argument. Justice Scalia said to Gura, “what you argue is the darling of the professoriate, for sure, but it’s also contrary to 140 years of our jurisprudence.” 

If the Supreme Court does incorporate the Second Amendment, I suspect it will do it the old-fashioned way and leave the Privileges or Immunities Clause and the Slaughter-House Cases in peace. That is probably just as well given that the Supreme Court and the lower federal courts will soon be  getting more Obama appointees who may be expected to have designs of their own for the Privileges or Immunities Clause. There is no reason to believe that the federal judiciary will be any more protective of economic liberties and property rights under the opaque Privileges or Immunities Clause than it has been under the Due Process, Takings, and Contracts Clauses, which actually contain the words property, liberty, and contract.

Reviving the Privileges or Immunities Clause has intellectual and historical appeal, but it is no substitute for the harder task of convincing judges and the politicians who select them that property rights are human rights.

6 thoughts on “The Privilege, or Immunity, of Bearing Arms”

  1. I know perfectly reasonable people who are hostile to property rights as a basis for freedom. Without property rights, there is no freedom, but they cannot see it. It is emotional. It was no accident that the only line from the movie Wall Street was “Greed is good.” The same people who dismiss property rights will agree to the principle that “A man’s home is his castle.”

  2. I have read the Slaughterhouse cases, and I thought their reasoning was clear, and unexceptional. The privileges and immunities of an American Citizen are not trivial. Traveling abroad and being able to bear a US passport and call on the assistance of the American Ambassador is a substantial privilege.

    However the real issue is what power SCOTUS has to revise the laws and judgments of the several States. In the course of the 20th Century SCOTUS, arrogated a wide ranging and unaccountable power to that end.

    Perhaps it was necessary in mid-century when Congress was in the Democrat hammerlock that kept it from legislating on the most crucial domestic issue of the day, the civil rights of African Americans.

    When seen in that context, even the forays into criminal procedure are understandable (see, e.g. Henry v Mississippi) as a desperate attempt to protect Civil Rights campaigners from the violence of the South’s old order. Baker v. Carr was badly reasoned, and has had all kinds of unintended bad consequences (Gore v Bush, my liberal friends?), but it was three long years until the Voting Rights Act of 1965.

    In doing the Lord’s work, SCOTUS summoned all kinds of intellectual demons from the vasty deep. It had renounced substantive due process in the 1930s, because it wanted to protect the New Deal from a doctrine that had been used to stifle economic regulation. So, to protect the civil rights of African Americans, it adopted the brain child of its Klansman, Hugo Black, incorporation of the Bill of Rights into the 14th Amendment. A doctrine, that absolutely no anchor in the text of the constitution.

    The difference between substantive due process and incorporation is that the former actually relates to words found in the 14th Amendment, even though you need to smoke a great many herbs and drink a great deal of fermented beverages to be able to read them as the substantiveists do.

    Incorporation proceeds from the platform of nothing to reach the conclusion its authors intend. Why are the 7th amendment, and part of the 5th excluded? Why does the first amendment which limits the power of congress also apply to school teachers? How is it, that even 60 years after the doctrines establishment, no one knows whether it applies to the 2nd Amendment.

    Of course, we now live in the worst of all possible worlds, substantive due process has been revived to protect our inviolable rights to genital friction and subsequent abortion, while incorporation roams the land unrestrained.

    We must recognize that deep sixing substantive due process and incorporation are not the answer to any question, and replacing them with yet another mis-reading are not the answer to an important question. The real question is how much power does SCOTUS have.

    My own answer is that we will live in a happier land when SCOTUS disclaims the power to play emperor, and reverts (or perhaps begins) to answering legal questions based solely on the law as it is written. You, of course, are free to disagree, but I want you to recognize that we are not arguing about the meaning of a three word phrase.

  3. It was the specific intent of the 14th Amendment to apply the Bill of Rights against the states. The right to bear arms was the one right most discussed and intended to be guaranteed. That is why the Slaughterhouse Cases are so hard to grasp. The Court essentially nullified the 14th Amendment.

    So, when you say none of the Bill of Rights applies against the States — except insofar as the Supreme Court has applied them piecemeal — you are right as a matter of practice. I think as a matter of law you are wrong, however. I suspect McDonald will decide the point.

  4. Mr. Schwartz’s confusion begins with his false dichotomy between substantive due process and incorporation. Incorporation is a component of substantive due process, which means that the Due Process Clause protects substantive rights including (a) certain rights incorporated from the Bill of Rights (also called “substantive incorporation”) and (b) other rights and liberties that may be within the penumbra of of express rights, e.g., the right to contract, which I mentioned, and, most infamously, abortion.

    Adding the Privileges or Immunities Clause as source of substantive rights drawn from the Bill of Rights or elsewhere would extend the impact of the Supreme Court’s power to review statutes. Whether the Court has that power is not the real issue of the case or any case the Court is likely to take because that question has been settled since Marbury. If the Court were to answer questions based solely on the law as written and a Chicagoan was prosecuted for owning a gun, what should the Court do when he says he should not go to jail because the Constitution as written gives him a right to own a gun? I suppose Mr. Schwartz would say it should let him go to jail.

    He would be in the company of Justice Miller, who wrote in the Slaughter-House Cases that a victory for the plaintiffs in that case “would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment.” At a conference I attended, Richard Epstein, whose portrait appears at the top of this blog, said Justice Miller was totally wrongheaded about that. The framers of the Fourteenth Amendment absolutely intended that the Court would be a perpetual censor upon the legislation of the states. That’s one of the reasons they went to the trouble of writing the amendment.

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