by David Gans, Director of Human and Civil Rights, and Doug Kendall, President of Constitutional Accountability Center

There has been a tremendous amount of attention paid recently to the conservative unrest (expressed most forcefully by Fourth Circuit Judge J. Harvie Wilkinson III) about Justice Scalia’s opinion in Heller v. District of Columbia, which Judge Wilkinson criticizes for dragging the Court into another hot button political topic (gun control) without a clear constitutional mandate. What few commentators have realized is that the next wave of Second Amendment litigation, involving challenges to state gun control laws, will raise an even more interesting question about how the provisions of the Bill of Rights are “incorporated” against the States, and provide an even greater test of conservative originalism.

Heller involved a District of Columbia statute. Because Congress controls the District’s laws, the Second Amendment applied by its own force. Virtually everyone assumes that the Court will take the next step of saying that the individual, Second Amendment right, recognized in Heller, applies also as a limit on state and local laws. Justice Scalia powerfully points in this direction in a footnote in Heller that flags this issue and undercuts the three 19th century precedents holding that the Second Amendment does not apply to state and local laws.

But if the fact of incorporation is a given (and we think it is), the method is not, and that’s where things get really interesting. Indeed, the “how” question with Second Amendment incorporation could be one of the most profoundly important questions of constitutional law decided in decades. In past cases, the Court has turned to the Due Process Clause to incorporate virtually all the rights in the Bill of Rights, but that approach does not sit well with the Constitution’s text, especially for substantive rights like the Second Amendment. Incorporation in those cases relies on the doctrine of substantive due process, which conservatives love to hate. Now some conservative lawyers are championing the Privileges or Immunities Clause as an alternative means of incorporation. The very day that the Court handed down Heller, Heller’s attorney, Alan Gura, filed a lawsuit attacking Chicago’s ban on hand guns, principally as a violation of the Privileges or Immunities Clause of the Fourteenth Amendment. Gura’s new lawsuit, not surprisingly has failed so far, but he is biding his time until he gets to the Supreme Court.

Gura is right to invoke the Privileges or Immunities Clause. The Court should rule that the Second Amendment – like the other substantive guarantees in the Bill of Rights – binds the States. And it should do so through the Privileges or Immunities Clause. The Privileges or Immunities Clause protects the substantive fundamental rights of all Americans from hostile state legislation. (For further explanation, see the first post in this series and our recent report, The Gem of the Constitution). At the very least, this means that States may not violate the fundamental constitutional rights listed elsewhere in the Constitution, such as in the Bill of Rights. As the first Justice Harlan wrote in Twining v. New Jersey — one of his many prescient dissenting opinions of the era — “[t]he privileges or immunities mentioned in the original Amendments, and universally regarded as our heritage of liberty from the common law, were thus secured to every citizen of the United States, and placed beyond assault by any government, Federal or state.” As Justice Harlan emphasized, “the plain words of the Constitution” dictate this protection of fundamental rights; we need not be derailed by having to show that the Due Process Clause protects substantive fundamental rights.

The debates in Congress over the Fourteenth Amendment bear this out. Senator Jacob Howard gave one of the best discussions of the Clause, and he was explicit that the Clause would require states to abide by the protections of the Bill of Rights, specifically including “the right to keep and bear arms.” Senator Howard recognized that the Supreme Court had held that the Bill of Rights did not apply to the States, and wrote the Privileges or Immunities Clause to overturn that result: “The great object of the first section of this amendment is . . . to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.”

The framers of the Fourteenth Amendment were deeply concerned about Second Amendment rights. The Black Codes prohibited the former slaves from having their own firearms, and some Southern plantation owners demanded that their former slaves agree to labor contracts giving up their right to bear arms. The framers of the Amendment viewed these efforts as breaches of the fundamental rights of all Americans, and meant the Privileges or Immunities Clause to invalidate them. For example, during the debates, Rep. Pomeroy viewed the right to bear arms as one of three indispensable “safeguards of liberty,” arguing that all Americans “should have the right to bear arms for the defense of himself and family and homestead.” Likewise, Rep. Raymond argued that the Fourteenth Amendment’s citizenship rights included the right to bear arms. “Make a colored man a citizen of the United States and he has every right which you and I have as citizens of the United States under the laws and Constitution of the United States. . . . He has a right to defend himself and his wife and children; a right to bear arms . . . .”

How, then, did the Supreme Court reach a contrary conclusion? In The Slaughterhouse Cases and subsequent rulings, the Court distinguished rights of state and national citizenship, and concluded that virtually all constitutional and common law rights were state rights; only rights connected to the workings of the federal government or the Union were rights of federal citizenship. In a trio of cases – United States v. Cruikshank in 1875, Presser v. Illinois in 1886, and Miller v. Texas in 1894 – the Court seized on this dichotomy to conclude that the Second Amendment does not apply to the States. As the Court wrote in Cruikshank: “The second amendment declares that [the right to bear arms] shall not be infringed; but this . . . means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the federal government . . . .”

In Heller, Justice Scalia recognized these as dubious precedents that gave no real consideration to the question of incorporation, setting the stage for overruling them at a later date. But there is no reason to simply stop at these three Second Amendment rulings. The Fourteenth Amendment’s text and history point powerfully toward overruling Slaughterhouse and applying the Second Amendment to the States via the Privileges or Immunities Clause.

But notice the predicament for a conservative originalist like Justice Scalia. The only answer a committed originalist can provide to the incorporation question is incorporation through the Privileges or Immunities Clause. While Justice Scalia is a “faint-hearted originalist” — meaning he’s sometimes willing to follow established, non-originalist precedent — that is no answer to the question of how to incorporate because the Court will have to overrule parts of Cruikshank as well as two other very old cases to find incorporation at all.

The dilemma for conservatives is that an originalist ruling that overrules Slaughterhouse and restores the Privileges or Immunities Clause to its intended constitutional role will simultaneously undergird the Court’s existing fundamental rights jurisprudence, which has produced rulings such as Roe v. Wade. While conservatives will certainly continue to attack these rulings as illegitimate, it’s far easier to say that the entire enterprise is out of bounds (as conservatives have said for years about substantive due process).

A Supreme Court ruling that the Privileges or Immunities Clause is not a dead letter and, indeed, mandates that judges wrestle with the question of what constitute the “privileges or immunities of citizens of the United States,” unquestionably would put a stronger constitutional foundation under the Court’s rulings in cases like Roe v. Wade and Lawrence v. Texas. Judge Wilkinson’s really not going to like that.

Originally posted at Balkinization.