The Supreme Court has set a date of March 2, 2010, for oral arguments in McDonald v. Chicago, the case that will decide whether the revival of the Second Amendment won in 2008’s Heller case will extend to overturning gun control restrictions imposed by local and state governments.
The legal briefs from the plaintiffs, and many of their amici, are now circulating. And an interesting division in the preferred strategy for winning the case has appeared, one based on the daring legal gambit around which most of lead McDonald lawyer (and Heller lawyer) Alan Gura’s brief is built.
To understand Gura’s radicalism, we need to take a quick stroll through a century and more of legal precedent. For decades, the rights contained in the Bill of Rights (both explicitly enumerated and unenumerated) were interpreted to bind only the federal government (see the 1833 Barron case, regarding takings under the Fifth Amendment, for the beginnings of this line of thought). Then in 1868 the 14th Amendment was enacted to impose substantive limitations on the ability of state and local governments to infringe individual rights.
The 14th Amendment was passed in the historical context of Reconstruction, when many southern governments were violating the rights of newly freed blacks. As many of the briefs in McDonald detail quite convincingly, one of the rights that was almost universally understood to fall under 14th Amendment protection (or to use the lingo, one of the rights meant to be “incorporated” on the states via the 14th) was the Second Amendment right to keep and bear arms.
The 14th Amendment lists three distinct ways in which states and localities are prohibited from violating our rights: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
In a controversial and almost universally derided 1873 set of cases known as the Slaughterhouse Cases, the Supreme Court permanently scuttled the use of the first, and seemingly richest, rights-protecting phrase, the Privileges or Immunities Clause. As Damon Root wrote here at Reason back in April:
At issue was a Louisiana law granting a 25-year monopoly to the Crescent City Live-Stock Landing and Slaughter-House Company to build and operate a new central slaughterhouse to "promote the health of the City of New Orleans." Writing for the Court's 5-4 majority, Justice Samuel Miller held that not only was the monopoly constitutional, the Privileges or Immunities Clause actually protected only a modest set of national rights, thus leaving the states free to restrict liberty as they saw fit.
Gura explained in an earlier interview with Reason what that decision did to the Privileges or Immunities Clause: “The Slaughterhouse Cases declared pretty much that the only privileges and immunities protected by the 14th Amendment are those of national citizenship, rights that accrue out of the existence of the federal government, like the right to a passport or right to travel the waterways of the U.S. or to petition Congress.”
By choosing to tell the Supreme Court that it should recognize Second Amendment rights as among the privileges or immunities the 14th Amendment was meant to protect, Gura is asking the Court to overturn Slaughterhouse. As he wrote in the brief to the Supreme Court:
SlaughterHouse’s illegitimacy has long been all-but-universally understood. It deserves to be acknowledged by this Court. Because SlaughterHouse rests on language not actually in the Constitution, contradicts the Fourteenth Amendment’s original textual meaning, defies the Framers’ intent, and supplies a nonsensical definition for Section One’s key protection of civil rights, overruling this error and its progeny remains imperative. No valid reliance interests flow from the wrongful deprivation of constitutional liberties. The reliance interest to be fulfilled remains Americans’ expectation that the constitutional amendment their ancestors ratified to protect their rights from state infringement be given its full effect.
As Damon Root explained at Reason back in February, getting rid of Slaughterhouse and restoring the 14th Amendment to its originally intended reach would do more than just make room for imposing Second Amendment restrictions on state governments: “The 14th Amendment was specifically designed and ratified to protect a sweepingly libertarian idea of self-ownership. That idea includes the right to acquire property, run a business, and buy and sell labor without unnecessary or improper interference by the government.”
And that’s exactly why Gura’s kill-Slaughterhouse move is so controversial. Some of the amici briefs in the case—meant, remember, to support his victory in McDonald—have even argued strenuously against the main means Gura is relying on to win.
Since, as Gura wrote in the brief, “In 1868, the ‘privileges’ and ‘immunities’ of American citizenship were popularly understood to include a broad array of pre-existent natural rights believed secured by all free governments, as well as the personal rights memorialized in the Bill of Rights,” some right-leaning legal scholars and organizations that want to vindicate the Second Amendment are afraid of a Court emboldened via the Privileges or Immunities Clause to do some serious thinking—and acting—on the basis of such a “broad array of pre-existent natural rights.”
A brief from the American Civil Rights Union and the Committee for Justice (among other groups) makes the most explicit pro-McDonald, yet anti-Gura’s Slaughterhouse strategy, case:
The Slaughter-House Cases should not be overruled. Doing so would render the Privileges or Immunities Clause a tabula rasa, which this Court in the future could interpret to mean anything this Court chooses, making that clause a cornucopia of various rights devoid of any textual support in the Constitution, with profound implications for both social and economic policy issues in this country, as future Members of this Court could constitutionalize their personal preferences, foreclosing political solutions on these matters.