by Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center

On March 2, the Supreme Court will hear argument in one of the biggest cases this Term: McDonald v. City of Chicago, 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.  McDonald will likely be the biggest constitutional case of this Term— Citizens United, the other contender for this year’s constitutional blockbuster, was technically a hold-over from last Term — and it gives the Court a rare opportunity to correct a century-and-a-half-old precedent that is responsible for wiping out one of the most important rights-protecting provisions of the 14th Amendment.  McDonald also presents interesting questions regarding Chief Justice Roberts’s willingness to overrule precedent—so unfortunately displayed in last month’s Citizens United decision—and Justice Scalia’s commitment to his originalist vision—which was notably absent in Citizen United, a ruling contrary to the text and history of the Constitution.

In McDonald, the city of Chicago is defending its gun control measures against a challenge by petitioners who argue that the city’s handgun ban violates their right to keep and bear arms—a right, these petitioners argue, that is protected against state and local government infringement by the Constitution’s 14th Amendment.  Otis McDonald and his fellow petitioners ground their argument primarily in the Privileges or Immunities Clause of the 14th Amendment, which provides that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”  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.  It is only because an 1873 Supreme Court ruling in The Slaughter-House Cases woefully misinterpreted the Privileges or Immunities Clause—and, indeed, the entire project of post-Civil War Reconstruction—that the Clause has been relegated to a constitutional “inkblot.”

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.  Accordingly, the McDonald case provides a rare, clear opportunity for the Court to apply the Privileges or Immunities Clause as it was originally intended and protect this individual right to keep and bear arms against state and local infringement.  Reviving the Privileges or Immunities Clause would not just protect the gun rights asserted in McDonald, however; as CAC has explained in its report, The Gem of the Constitution, reinvigorating the Clause would strengthen other fundamental, substantive rights—including the right to reproductive choice recognized in Roe v. Wade and the protection for sexual intimacy recognized in Lawrence v. Texas—by giving these rights a stronger textual foundation in the Constitution.

But the revival of the Privileges or Immunities Clause, however appropriate, could be side-stepped in McDonald: the petitioners, as well as the NRA and other amici, have argued that the Due Process Clause of the 14th Amendment is an alternative method of “incorporating” Second Amendment gun rights against state and local governments. 

Indeed, the NRA sought and obtained 10 minutes of counsel for McDonald’s argument time specifically to emphasize the due process argument, and will be represented on March 2 by former Solicitor General Paul Clement.  In a sense, the due process path is the “easy” method of incorporation.  After the Slaughter-House Court gutted the Privileges or Immunities Clause, the Supreme Court eventually turned to due process to provide the substantive rights protection that was so obviously intended by the 14th Amendment.  The modern due process incorporation doctrine is reflected in numerous precedents from the last century and has resulted in the incorporation of the majority of the rights protected by the first eight amendments in the Bill of Rights, as well as several fundamental unenumerated rights.

However, for the Court’s conservatives, particularly professed “originalists” like Justices Scalia and Thomas, the due process path should not be easy to follow.  Conservatives love to decry the illegitimacy of “substantive due process,” whereby substantive rights are protected against state infringement through a constitutional provision that on its face appears to deal with procedure.  Moreover, the text and history that support the use of the Privileges or Immunities Clause to protect the individual gun rights asserted in this case are plain and compelling.  While Justice Thomas has previously expressed his support for a re-examination of the Clause, a big question going into oral argument is whether Justice Scalia will stick to his originalist guns and follow the text and history of the Constitution where it leads in this case: the Privileges or Immunities Clause.

The one path no Justice on the Supreme Court should want to follow is the one suggested by the City of Chicago in its brief.  In the city’s attempt to preserve its weapons ban, it argues too much, essentially urging the Supreme Court to find that protection of the Bill of Rights and other fundamental liberties against state infringement has no basis in constitutional text or history, and is instead achieved solely by judicial implication.  To make matters worse, Chicago’s brief makes common cause with precedent that has been properly labeled by civil rights leaders as “among the most misdirected in the history of the Court” and celebrates a post-Civil War Court that looked the other way while Jim Crow perpetuated decades of discrimination and the use of violence to suppress individual rights.

In its efforts to present a historical record against incorporation, Chicago portrays the 14th Amendment as securing only equality or nondiscrimination by the states, rendering both the Privileges or Immunities Clause and the Due Process Clause dead letters.  But certainly the 14th Amendment protects substantive liberty in some manner.  While the Privileges or Immunities Clause is the most textually and historically accurate source of substantive rights protection, substantive liberty has also been located in the broad sweep of the words of the Due Process Clause (as in Lawrence) as well as in the Citizenship Clause (as in Justice Ginsburg’s dissent in Carhart).  There is no suggestion from the modern Court that it views the 14th Amendment as a mere non-discrimination provision.

Which is why, perhaps, the city’s brief turns to some of the most thoroughly discredited cases in Supreme Court history: Slaughter-House and Cruikshank.  In the Slaughter-House Cases (1873), the Court interpreted the Privileges or Immunities Clause to provide no protection against state or local infringement of fundamental constitutional rights, but, as constitutional expert Akhil Amar has noted, “[v]irtually no serious modern scholar—left, right, and center—thinks that this is a plausible reading of the Amendment.”  In United States v. Cruikshank (1875), the Court held that the federal government had no power under the 14th Amendment to protect against violations of First and Second Amendment rights in the states, and invalidated the federal criminal convictions of white insurgents who massacred more than sixty African Americans who sought to defend against the overthrow of their parish government in Louisiana.  The NAACP’s brief filed in support of neither party in McDonald correctly describes these cases as “part of a dreadful chapter in the history of this nation.”

The Supreme Court has the opportunity in McDonald to re-write this “dreadful chapter” and overrule Slaughter-House.  In Citizens United, Chief Justice Roberts demonstrated that he is willing to shake off his professed aspirations to “judicial restraint” and overrule precedent he and his conservative colleagues consider to be wrongly decided under the Constitution.  But will he and the other members of the Citizens United majority be as willing to overturn Slaughter-House, which was undeniably wrong as a matter of constitutional interpretation, when the result could be increased constitutional support for key fundamental rights, such as those protected in Roe and Lawrence?  Or will the Roberts Court conveniently rediscover judicial minimalism and follow the results-oriented path of protecting gun rights through the narrowest means possible?

We will be at the oral argument on March 2, and will be watching for clues to the answers to these questions and more.  Check back with Text & History after the argument, and, in the meantime, for more information on McDonald and the Privileges or Immunities Clause, please see our previous posts here.