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Winning in McDonald
by Doug Kendall, President, and Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center
The media has made much of the purported rift between the pro-gun-rights advocates in the McDonald v. City of Chicago case, in which gun owners have asked the Court to extend against infringement by state and local governments the individual right to keep and bear arms recognized against the federal government in Heller v. District of Columbia. Scrutiny increased after the National Rifle Association (NRA) sought and obtained 10 minutes of counsel for McDonald’s oral argument time. The NRA, represented by former Solicitor General Paul Clement, sought argument time to focus on “incorporation” of the right to keep and bear arms through the 14th Amendment’s Due Process Clause; Alan Gura, McDonald’s counsel, has made arguments for incorporation under both due process and the 14th Amendment’s Privileges or Immunities Clause, with heavy emphasis on the latter argument.
But it is important to keep in mind as we head into argument on March 2, that while the time between the pro-incorporation advocates may be split, their arguments come together in the history of the 14th Amendment, on which both Clement and Gura rely. If the Court were to embrace either argument and recognize that incorporation of fundamental substantive rights is correct as a matter of original intent and public meaning, it would be a huge victory—not just for the advocates and their amici (including Constitutional Accountability Center), but, most important, for the Constitution.
In his briefs, Gura has powerfully presented the history of the 14th Amendment and its Privileges or Immunities Clause, recounting how the Framers of the 14th Amendment expressly sought to secure the individual right to keep and bear arms for self-defense as a privilege or immunity of citizenship. Constitutional Accountability Center (CAC) filed an amicus brief on behalf of a group of prominent constitutional scholars from across the ideological spectrum supporting this theory, explaining that this provision of the 14th Amendment was intended and understood to protect fundamental substantive rights, including those set out in the Bill of Rights.
As explained in both Gura’s brief and CAC’s brief, the history of the Privileges or Immunities Clause shows that the drafters of the provision were particularly concerned with protecting the right to keep and bear arms for newly freed slaves and Unionists in the South, who were experiencing violent persecution in the aftermath of the Civil War. The McDonald case provides a rare, clear opportunity for the Court to revisit its 1873 decision in the Slaughter-House Cases, which read the Privileges or Immunities Clause so narrowly as to drain it of virtually all its meaning, and apply the Clause as it was originally intended to protect this individual right to keep and bear arms against state and local infringement.
The NRA, while arguing more generally that the 14th Amendment incorporates the right to keep and bear arms, relies on this same privileges-or-immunities history. In its reply brief, the NRA states that “as explained in the opening briefs of [McDonald] and the [NRA], this Reconstruction-era history firmly supports incorporation of the Second Amendment." NRA Reply Br. at 5. In arguing that the original understanding of the 14th Amendment was that it protected the right to keep and bear arms, the NRA relies upon a speech by Senator Howard in which he defines “privileges and immunities” to include “personal rights” protected by the Bill of Rights and explains that the Amendment would require the states “to respect these great fundamental guarantees.” See NRA Reply Br. at 10-11. The point made by both the NRA and Gura is that, as a matter of original intent, the 14th Amendment incorporates fundamental substantive rights, such as the right to keep and bear arms.
Both Gura and the NRA are united in their opposition to Chicago’s argument, which presents the plainly erroneous claim that there was “no incorporationist understanding” of the 14th Amendment. As the NRA says, this “blinks reality.” Reply Br. at 8. As Gura writes, “[u]nder [Chicago’s] view, the core principle animating civil rights law—that States are bound by federal civil rights—is a judicial fiction, lacking any persuasive historical or textual basis in the Constitution. The Constitution’s text and history instruct otherwise.” McDonald Reply Br. at 3.
In short, while much has been made over the supposed “split” among gun-rights advocates, the only way Gura’s clients or the NRA truly lose in McDonald would be if the Court followed Chicago’s suggestion that there is no support in the text and history of the 14th Amendment for incorporation of substantive rights. If the Court went that route, we would all lose. But if the Roberts Court—especially the Court’s conservatives, like Justice Scalia, who have decried the incorporation of substantive rights through the 14th Amendment—recognized that incorporation is correct as a matter of original intent and understanding, that would be a huge win. Fundamental rights in the states would stand firmly rooted in the Constitution and substantive rights would be more securely anchored in the charter’s text and history. And that’s a victory all Americans should cheer.