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Gura lost his Chicago case at the district court level and at the 7th Circuit, where it was consolidated in January with two of the NRA’s lawsuits. In a June 2009 decision, the 7th Circuit concluded that the outcome was dictated by 19th-century decisions in which the Supreme Court stated that the Second Amendment applies only to the federal government. By contrast, the U.S. Court of Appeals for the 9th Circuit had concluded in a separate case in April 2009 that the Second Amendment is binding on the states as well. The 9th Circuit noted that the 19th-century decisions had been handed down before the Supreme Court began to rule that the 14th Amendment, which explicitly protects Americans from violations of their rights by the states, incorporates most of the protections in the Bill of Rights.
This judicial disagreement created a “circuit split,” enhancing the chances for Supreme Court review. (Due to eventual reconsideration of that 9th Circuit case, there was not technically a circuit split by the time the Supreme Court nevertheless decided to take up McDonald.)
When McDonald got to the Supreme Court in September 2009, Gura made a decision that unnerved many of his fellow Second Amendment defenders. All of them wanted the Supreme Court to rule that the 14th Amendment, which was passed in the wake of the Civil War, compelled states to respect the right to keep and bear arms, just as it compels them to respect the right to freedom of speech and various other provisions of the first eight amendments. But Gura disagreed with many of his allies about the best 14th Amendment argument for reaching that conclusion.
In a string of incorporation rulings stretching back to 1925, the Court had relied on the 14th Amendment’s provision that no state may “deprive any person of life, liberty, or property without due process of law.” This doctrine, known as “substantive due process,” has long drawn criticism from conservatives and libertarians for abusing what was intended to be a procedural guarantee. They have argued that it makes much more sense to “incorporate” rights via the 14th Amendment’s prohibition of “any law which shall abridge the privileges or immunities of citizens of the United States.”
This critique finally found its Supreme Court champion in Gura, who decided it was time to argue that the right to bear arms was one of those “privileges or immunities” that states could not abridge.
The problem was that the Supreme Court, way back in 1873, had interpreted the Privileges or Immunities Clause so narrowly that it barely even impacted the states. For the Court to accept Gura’s argument, it would have to overturn that longstanding precedent, known as the Slaughterhouse Cases, and implicitly admit that all its incorporation rulings relying on the Due Process Clause had focused on the wrong provision of the 14th Amendment. Tactically, the much safer course was to urge the Court to proceed as usual, adding the Second Amendment to the list of guarantees incorporated in the Due Process Clause.
Yet Gura had a powerful case for reviving the long-neglected Privileges or Immunities Clause. The men who drafted and ratified the 14th Amendment explicitly sought to protect newly emancipated slaves from oppression by Southern governments, which had passed laws disarming blacks, interfering with their freedom to sign contracts and own property, and forbidding them from leaving their employers’ property without permission.
The 14th Amendment’s Senate sponsor, Jacob Howard, cited the need to protect “the personal rights guaranteed and secured by the first eight amendments of the Constitution,” such as “freedom of speech and of the press” and “the right to keep and bear arms.” According to Howard, “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.”
Textual and historical evidence, gathered in Gura’s petition for certiorari to the Supreme Court, makes clear that Howard in his citation was referring to the Privileges or Immunities Clause. And Sen. Howard wasn’t the only one who thought that the clause, at the very least, imposed the Bill of Rights on the states. The general public, jurists, and legal scholars (including opponents of the 14th Amendment) also understood the Privileges or Immunities clause to mean that, as Gura quotes Judge George Paschal writing in a textbook on the Constitution from 1868, “the general principles which had been construed to apply only to the national government, are thus imposed upon the States.”
Since the 14th Amendment was intended to protect the rights covered by the ineffective civil rights statutes that preceded it, these “privileges or immunities” almost certainly were also meant to include economic rights that Southern states routinely violated: freedom of contract, the right to own and transfer property, and the right to make a living free from unreasonable interference by the state.
The Supreme Court ignored all this in the Slaughterhouse Cases, decided just five years after the 14th Amendment was ratified. Upholding a state-enforced slaughterhouse monopoly against a challenge based on the Privileges or Immunities Clause, Gura explains, the Court “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.” According to the Slaughterhouse Court, the Privileges or Immunities Clause did not protect the fundamental, pre-existing rights (such as the right to armed self-defense) that the designers of the 14th Amendment thought they were protecting.
As McDonald made its way to the Supreme Court, the idea of reviving the Privileges or Immunities Clause excited and worried legal thinkers across the political spectrum. Progressives imagined it as a wedge for unenumerated welfare rights, while libertarians saw it as a way to battle oppressive economic regulations, protect property rights, and guarantee freedom of contract. Conversely, each side feared the other’s agenda.
Gura argues that potential abuse of the Privileges or Immunities Clause should not deter advocates from using it when appropriate. “If the Privileges or Immunities Clause guarantees certain unenumerated rights and those rights are violated, then great, have those rights vindicated,” he says. “But if people file unmeritorious litigation, that litigation will not succeed, the courts will do their job, and that wave of misguided litigation will subside.”
In any case, Gura says, the original understanding of the Privileges or Immunities Clause clearly included the right to arms, so that was the argument he led with. Certainly, asking the Court to overturn nearly 140 years of precedent was a bold move, to say the least. But supporters of Gura’s strategy were encouraged by the mere fact that the Court had decided to hear McDonald, rather than a gun case that depended exclusively on the due process argument.
Privileges or Immunities fans also noted that Justice Clarence Thomas had, in a 1999 dissent, expressed a willingness to re-examine the meaning of the Privileges or Immunities Clause “in an appropriate case.”