On February 4, 2009, Constitutional Accountability Center filed a brief in the consolidated 7th Circuit case of McDonald, et al., and National Rifle Association of America, Inc., et al., v. City of Chicago, et al., and Village of Oak Park, arguing that the individual right to bear arms, recognized in District of Columbia v. Heller (2008), is “incorporated” against state action via the Privileges or Immunities Clause of the 14th Amendment. CAC’s brief was filed on behalf of four preeminent constitutional scholars—Professors Richard Aynes, Jack Balkin, Michael Kent Curtis, and Michael A. Lawrence. Our brief spoke only to the incorporation issue: we did not join in the argument made by the NRA and its fellow plaintiffs that the challenged gun regulations are unconstitutional. On June 2, 2009, just a week after oral argument was held in the case, the Seventh Circuit Court of Appeals issued a unanimous ruling holding that only the U.S. Supreme Court could apply the 2nd Amendment to the states for the first time.

On July 11, 2009, CAC filed a brief in the Supreme Court asking the Court to grant certiorari to consider the McDonald case. On September 30, 2009, the Supreme Court agreed, and granted certiorari in the case. Read Doug Kendall’s statement applauding the decision here.

On November 23, 2009, CAC filed a “friend of the court” brief on the merits of the McDonald case, urging the Supreme Court to restore the Privileges or Immunities Clause to its rightful place as the gem of our Constitution (read more here).  This brief—which argued that the 2nd Amendment is “incorporated” against state action via the 14th Amendment’s Privileges or Immunities Clause — reflected CAC’s founding mission of shaking up the debate about the Constitution in this country.

CAC’s brief was filed on behalf of eight preeminent and ideologically diverse 14th Amendment scholars, including Jack Balkin of Yale Law School, who is spearheading an effort, co-sponsored by the American Constitution Society, to define a progressive vision of The Constitution in 2020, and Steven Calabresi of Northwestern Law School, who nearly three decades ago co-founded the Federalist Society. (The eight signatories to the brief were, Richard Aynes, Jack Balkin, Randy Barnett, Steven Calabresi, Michael Kent Curtis, Michael Lawrence, William Van Alstyne, and Adam Winkler.) It embodied a remarkable scholarly consensus for the proposition that the Court erred profoundly 136 years ago in The Slaughter-House Cases when it effectively read the Privileges or Immunities Clause out of the 14th Amendment. As Yale Law School’s Akhil Amar has stated: “Virtually no serious modern scholar – left, right, and center – thinks that Slaughterhouse is a plausible reading of the Fourteenth Amendment.” CAC’s brief in McDonald built on our report The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment, which explains why progressives in particular should favor a restoration of the Privileges or Immunities Clause.

On June 28, 2009, the Supreme Court issued its opinion in McDonald, concluding that the 14th Amendment requires state and local governments to respect the Second Amendment. Justice Alito’s opinion for the Court rooted the Constitution’s protection of substantive fundamental rights in constitutional text and history and surveyed the debates on the 14th Amendment as well as the landmark civil rights legislation enacted contemporaneously with ratification of that Amendment. Justice Thomas covered much the same ground in his concurring opinion, which expressly rested on the Privileges or Immunities Clause.

While the Court majority declined to restore the vitality of the Privileges or Immunities Clause – the specific text in the Fourteenth Amendment designed to protect substantive fundamental rights from state abridgment – its opinion time and again discussed the text and history of the whole Amendment, including the Privileges or Immunities Clause. In fact, the Court’s opinion favorably cited a scholarship from academics across the ideological divide, who have argued that the Privileges or Immunities Clause should be restored. CAC’s brief was cited twice in the majority’s opinion.