Supreme Court

From Guns to Butter

How a Second Amendment case can help restore economic liberty


In the 1856 case Dred Scott v. Sandford, the U.S. Supreme Court rejected the idea that Africans and their descendants in the United States could be "entitled to the privileges and immunities of citizens." To emphasize how absurd that notion was, Chief Justice Roger Taney noted that, among other things, those "privileges and immunities" would allow members of "the unhappy black race" to "keep and carry arms wherever they went."

The 14th Amendment, approved in the wake of the Civil War, repudiated Taney's view of  the Constitution, declaring that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens," who include "all persons born or naturalized in the United States." Just four years after the amendment was ratified, however, the Supreme Court interpreted the Privileges or Immunities Clause so narrowly that a dissenting justice said it had been transformed into a "vain and idle enactment." The Court now has a chance to rectify that mistake—fittingly enough, in a case involving the right to arms.

Last week the Court agreed to hear a Second Amendment challenge to Chicago's handgun ban. Since that law is very similar to the Washington, D.C., ordinance that the Court declared unconstitutional last year, it is bound to be overturned, assuming the Court concludes that the Second Amendment applies not just to the federal government (which oversees the District of Columbia) but also to states and their subsidiaries.

That seems like a pretty safe assumption, since over the years the Court has said the 14th Amendment's "incorporates" nearly all of the guarantees in the Bill of Rights. But the Court's reasoning in applying the Second Amendment to the states could have implications far beyond the right to arms. If it cites the Privileges or Immunities Clause instead of (or in addition to) the usual rationale for incorporation, the 14th Amendment's Due Process Clause, it can prepare the ground for a renaissance of economic liberty.

Abundant historical evidence indicates that the Privileges or Immunities Clause was meant to protect the right to arms. Rep. John Bingham (R-Ohio), the 14th Amendment's main author, repeatedly said the "privileges or immunities of citizens" included the liberties guaranteed by the Bill of Rights. So did Jacob Howard (R-Mich.), the amendment's chief sponsor in the Senate.

As David Hardy shows in a recent Whittier Law Review article, this view was widely reported in the press and therefore was understood by the general public and by the state legislators who ratified the 14th Amendment. They perceived the amendment as a remedy for the oppressive policies of Southern states that sought to deprive freedmen of their basic liberties.

The right to weapons was one of the liberties frequently cited by the 14th Amendment's backers, since disarmed blacks were defenseless against attacks by Klansmen and local officials. As reflected in post–Civil War legislation that the amendment was intended to reinforce, its supporters also were concerned about economic liberty: the right to own and exchange property, make and enforce contracts, and work in the occupation of one's choice—all freedoms the Southern states tried to deny former slaves.

Despite this context, in 1872 the Supreme Court declared that the "privileges or immunities of citizens" included only those rights that were created by the Constitution (such as the right to petition the federal government), not the pre-existing rights the Constitution was designed to protect. The Court therefore upheld a slaughterhouse monopoly created by the state of Louisiana, an infringement of economic liberty that the three dissenting justices saw as a violation of the Privileges or Immunities Clause.

Those privileges or immunities, the dissenters said, include "the right to pursue a lawful employment in a lawful manner, without other restraint than such as equally affects all persons." That view reflects the original understanding of the 14th Amendment, which holds great promise as a bulwark against arbitrary interference with economic freedom. The Supreme Court should seize this opportunity to revive it.

 Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

© Copyright 2009 by Creators Syndicate Inc.

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  1. “The 14th Amendment, approved in the wake of the Civil War, repudiated Taney’s view of the Constitution, declaring that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens,” who include “all persons born or naturalized in the United States.”

    So it’s in the Constitution that non-citizens do not have the same protections as citizens? What’s the implication for those who want to turn a blind eye to illegal immigration?

    1. First, the 14th prohibits the government from denying privileges and immunities to citizens. It does not exempt non-citizens from protection.

      Second, “illegal” immigration is not really a Constitutional issue. It is a statutory issue dealing with the government’s response to foreign-born people who want to improve their lives and fill gaps in the labor market.

      1. What’s with the scare quotes around “illegal”? Are you claiming such immigration is not illegal?

        I’m just sick of people putting scare quotes around a word they don’t want to be there, even when there’s no doubt the word is applicable.

        1. Point taken. I’m just sick of people who use the word illegal to imply wrong or immoral, especially when the correlation is far from obvious.

          1. The law amy be immoral, but it does exist and so do illegal immigrants.

            1. Just as long as we don’t get “illegal immigrants” and “hispanics” confused, as so much of the debate seems to.

              A large number of immigrants are illegal because the process for becoming a legal immigrant, or even a legal temporary worker, is absolutely ridiculous. Get to the back of the line isn’t a particularly practical suggestion when the line is several years long just to be able to pick vegetables legally.

      2. I did not say it denies all protections to noncitizens, I do say that citizens have greater protections than noncitizens. A lot of the argument for ignoring illegal immigration is based on thinking that the Constitution requires treating noncitizens equally to citzens.

  2. We need a good cheer for this. Now, what rhymes with fourteenth-amendment . . .

      1. That’s pretty close. We need something else that won’t remind the Libertarians and Cosmotarians of Church.

        1. Save number fourteen,
          When the court does conviene!
          Support individual rights,
          Economic and to gun fights!
          Don’t be a racist,
          Support 14 on this basis!

          1. Damn Fourteeners.

        2. Hell, I forgot about Max Frost and The Troopers’ Fourteen or Fight.

          But throwing everyone over the age of 30 into concentration camps isn’t a very libertarian thing to do…

  3. Is there any evidence that the Justices who are likely to vote in favor of applying the 2nd amendment to the states are even thinking about doing it on this basis? Was there any talk about this in the oral arguments? Or or this just hopeful speculation on Sullum’s part?

    1. About two weeks ago, I attended a Federalist Society event at which Alan Gura (attorney who successfully argued Heller and who will also be arguing the Chicago gun ban case) and Michael Herring (commonwealth’s attorney for the city of Richmond, VA) discussed whether the court would incorporate the Second Amendment. Although they disagreed to an extent about what is “reasonable” gun regulation from a public policy standpoint, they both agreed the court almost certainly will find the Second is incoporated by the 14th. Alan is inviting the court to do so via the privileges and immunities clause, and overrule Slaughterhouse, but he said that if they choose to go via due process, that would work to.

      Alan said that based on Heller’s ruling that the individual right to own handguns for self defense is a fundamental right protected by the 2A, he didn’t see how the Court would be able to find it wasn’t incorporated. Also, state laws should be subject to strict scrutiny, not merely rational basis review, just like First Amendment cases.

      I am optimistic after seeing those two speak. They both seemed pretty positive that the court would incorporate 2A.

  4. . The Supreme Court should seize this opportunity to revive it.

    If I had a dime for everything the supreme court should do, I could retire the national debt.


  5. MJ, the question presented asks whether to incorporate the 2nd amendment through due process OR “privileges or immunities.” Petitioners have briefed the issue. So yes, there’s a pretty strong indication that the Court will at least consdier the PorI clause.

    1. That’s good. Was there any indication that any of the Justices were sympathetic to it?

  6. Nice job, Jacob. Thank you for this info. Even if they do rule as you explain, I bet you’ll still have a hard time using this ruling as precedent in an appellate court for economic reasons, but it’s a start.

  7. I can’t imagine why anyone would want the Constitution to mean exactly what it appears to mean to the average non-lawyer.

  8. So, what are some possible outcomes should this go the way we’d like?

  9. We’ve just seen a sensible-ish interpretation of the 2nd from Scotus, and now Sullum is expecting the 14th to be enforced. Some people…

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    2. Stupid, I know, but I clicked the link just to see if the site is as awfully constructed as the Spammer’s posts.

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  11. Is it my imagination, or do we get more spambots in here now that the website has changed?

    1. It’s not your imagination. Tony and Chad posted all afternoon yesterday.

      1. $25 Bikini guy counts too, but makes more sense. So that’s one more.

    2. AFAICT, there have been no functional improvements to the software at all: even the “reply to” thing is a added flaw because of the inability of a reader to automatically find new posts in the middle of a thread. At the very least, they could have implemented some of the anti-spam/anti-troll strategies I suggested year(s?) ago.

      1. They will never get rid of the trolls. Arguing with them drives page hits and, therefore, ad revenue.

        I’m not throwing stones, they draw me in occasionally too, but the only way to get rid of them is to stop feeding them. They don’t get their “poop in the corner if Mommy won’t read to me” attention they crave and removes it the incentive for the editors to ignore them.

        In fact, the only time I ever remember hearing about the software upgrade was in connection with the hopes it would cut down on spoof posting. Spoof posting is the only active measure that drives the trolls away, even briefly, and that was what they wanted to “fix.”

        It’s their blog, they can do what they want, but the troll problem is only a problem to us.

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  13. The 2nd Amendment needs its space, and I need my gun. How free can a man truly be if he doesn’t have the ability to buy protection let alone property (guns are property).

    How can God be a customer if he is stuck in a black hole?

  14. Tony and Chad posted all afternoon yesterday.

    Of this i am aware, lord have mercy on this poor sinner.

  15. You know, even if the Court suddenly discovers the Privileges and Immunities clause, I have zero faith that it will result in any real roll-back in unconstitutional government activity. Consider:

    (1) These are the same guys who rediscovered the Commerce Clause a few years back. Anyone notice in reduction in plenary government “authority” over the economy? Me neither.

    (2) They spent Monday seriously arguing about whether a government ban on videos based solely on their content was permissible under the First Amendment. You remember, the one that says “Congress shall make no law. . . .”? Apparently, none of them could quite dredge up the actual words of the First Amendment, which could hardly be more clear.

  16. @R C Dean, re your second point: I think they were mostly playing with the attorney trying to uphold the law. They were trying to see if she (I think it was a she) would come up with any coherent objection. From what I’ve read, she did not.

    The only real grounds they have for regulating speech is the canonical example of yelling “fire” in a movie theater. If we believe in slander and libel as crimes (or civil infractions), then I think we can back the “fire” scenario in the same way… if there isn’t actually a fire when someone yells it, then they should be civilly liable for all the damage, mayhem and injuries. It’s not their speech that’s the crime, it’s the lie. I think we may need to bring back debtors prison for the special case of imposed judgments that the defendant can’t pay. Just a thought…

    1. Yes, the ‘fire’ in a theatre is a horribly confused example and I wish it would die.

      Outlawing free speech in this example is just exactly like outlawing guns because they can be used to kill.

      If it can be proved you killed someone with free speech (EG by a stampede resultant from yelling ‘fire’ in a crowded theatre) you should be charged with murder, not subject to prior restraint.

      If you yell ‘fire’ in a theatre and people just laugh at you then you have committed no crime.

      However the theatre owners or their proxies may ask you to leave.

      What I find difficult to believe is that the supremes do not understand this distinction.

  17. The Chicago law is unconstitutional. Everyone knows it. They fact that Chicagoians don’t not challenge it reflects their agreement to their own SLAVERY.

  18. Haven’t had time to RTFA or the comments. Just checking in (during my lunch hour) on the latest gun-related post to ask this rhetorical question: How do you suppose the citizens of New York City feel about their tax dollars going to investigate a gun show in Dayton, Ohio?

  19. TCfO: Bloomberg is an anti-gun nazi who will stop at nothing to destroy the 2nd amendment, including committing crimes of his own (I’d be stunned if using city funds in that manner is legal). Also, (IANAL, and it’s been a while since I’ve read the law) I don’t think they uncovered any crimes. I believe the dealer has to KNOW the person buying will not pass a background check, not just suspect it. IIRC, some states, such as NH, have a law that says that explicitly, but I can’t clearly recall the federal law.

    To answer your actual question, I’d hope they’re outraged, but I’m sure enough of them are complacent or even happy with it that it will continue. At least it serves to further discredit Bloomberg’s Mayors Against Guns group. (see what I did there?)

  20. Quote from article- The 14th Amendment, approved in the wake of the Civil War, repudiated Taney’s view of the Constitution, declaring that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens,” who include “all persons born or naturalized in the United States.”

    The “person” referenced in the 14th Amendment is defined in Law as:

    Person. In general usage, a human being (i.e. natural person), thought by statute term may include labor organizations, partnerships, associations, corporations, legal representatives, trustees in bankruptcy, or receivers. See e.g. National Labor Relations Act Section 2(1), U.S.C.A. Section 152; Uniform Partnership Act, Section 2.

    Scope and delineation of term is necessary for determining those to whom Fourteenth Amendment of Constitution affords protection since this Amendment expressly applies to “person.”
    -Black’s Law Sixth Edition (pg. 1142)

    From the vantage of a Constitutional Scholar, the purpose and intent of the 14th was two fold:

    1. Create a new Federal class of citizens (a subject to Federal Jurisdiction) with relative or “Incorporated” rights (rather than the original Citizen of a State political status w/ Natural or Inalienable rights and powerful protections under the American Common Law) with the characteristics of a Corporation (An artificial person or legal entity created by or under the authority of the laws of state..Black’s Law Sixth Edition pg. 340). Note: prior to the 14th Amendment, African Americans (then referred to as Negroes) were counted as 3/5 of a person.. now ALL Americans are considered “persons” rather than natural persons (because of their acceptance of Federal Benefits such as Social Security, Student Loans etc).

    2. Corporations are declared by the Courts to be persons under the Amendment and bring their “Dream Team” attorneys into every controversy in American Courts (these highly paid attorneys often bury their adversaries in Paper or simply file continuances until Plaintiff’s resources are exhausted etc.).

    See “The Fourteenth amendment and the states: a study of the operation of the restraint clauses of section one of the fourteenth amendment to the constitution of the United States” by Charles Wallace Collins, M.A. .. quoted by Justice Black, Supreme Court of the United States (dissenting) Adamson v California (No. 102) 27 Cal.2d 478, 165 P. 2d 3

    The Corporations And The Twilight Zone . . .126

    Absence of corporation problems at time of adoption
    of the Amendment ? Corporations declared to be per-
    sons under the Amendment ? Vast increase of corporate
    litigation under the Amendment?The Amendment an
    instrument of the public service companies ? The Twi-
    light Zone defined and discussed?Illustrations of the
    effect of the Twilight Zone?Perversion of the Amend-
    ment by organized capital.

    “”In 1912, four years after the Twining case was decided, a book written by Mr. Charles Wallace Collins gave the history of this Court’s interpretation and application of the Fourteenth Amendment up to that time. It is not necessary for one fully to agree with all he said in [p84] order to appreciate the sentiment of the following comment concerning the disappointments caused by this Court’s interpretation of the Amendment.
    -Justice Black

    . . . It was aimed at restraining and checking the powers of wealth and privilege. It was to be a charter of liberty for human rights against property rights. The transformation has been rapid and complete. It operates today to protect the rights of property to the detriment of the rights of man. It has become the Magna Charta of accumulated and organized capital.””
    -Charles Wallace Collens

    additional notes in the margin:

    The Supreme Court first construed the Fourteenth Amendment phrase “privileges or immunities of citizens of the United States” in the seminal Slaughter-House Cases, 83 U.S. 36 (1872). The Court ruled that this Clause includes only those rights that “are dependent upon citizenship of the United States, and not citizenship of a State.” Id. at 80. These national citizenship rights include the right to “free access to its seaports,” to “use the navigable waters,” to “peaceably assemble and petition for redress of grievances,” and to “become a citizen of any state.” Id. at 79-80. In Presser, the Court held that a pre-existing right like the Second Amendment right “to keep and bear arms” or any other Natural/ Inalienable right is not a privilege or immunity of United States citizenship because it is not “in any manner dependent upon [the Constitution] for its existence.”116 U.S. at 265. Simply put, the purported 14th was not properly ratified (Southern States were occupied by the U.S. Military during the Reconstruction Era, under duress and not properly represented makes this amendment a “nullity” unless a citizen makes an election to gain protection or benefit from the Fed “outside” the U.S. Constitution’s framework), citizens whom make an “election” to act as U.S. citizens do so under commercial law (see Black’s Law Sixth Edition, a “person” acts as a “commercial entity” not to be confused with a Natural Person with Natural Rights that existed prior to the U.S. Constitution).

    “It should be pointed out that after the south surrendered there was no longer any organized Southern Confederate States, only federally administered former States that became divided into military districts whose inhabitants were primarily citizens of the United States. The problem with the administration of these former rebel States was with President Andrew Johnson who drew opposition from Republicans. Senator Jacob Howard called the temporary former rebel State governments set up by President Johnson “bogus governments” and “unconstitutional,” resting “upon military edicts of the president of the United States, so far as they have any foundation and operation.” (Cong. Globe, 39th, 2nd Sess., 1365 (1867))””


    Bingham (U.S. Rep. & co-author of the purported 14th Amendment) made a seemingly confusing statement several years after the adoption of the amendment which in recent times has gathered much attention in supporting the theory the Fourteenth Amendment intended to make the entire first Eight Amendments a limitation upon the States in regards to their own resident citizens. He is often quoted as saying in an highly partisan speech on March 31, 1871:

    Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, Fourteenth Amendment of the constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first Eight Amendments to the Constitution of the United States ? These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment.11

    Note that Bingham makes a clear distinction between State citizens and citizens of the United States. Additionally, moments later, Bingham goes on to add in this same speech that it had always been “decided, and rightfully, that these amendments, defining and protecting the rights of men and citizens, were only limits on the power of Congress, not on the power of the States.”

    It was Bingham’s theory (Webster’s ‘injunctions and prohibitions’)12 that the first Eight Amendments do indeed apply against the executive or judicial officers of a State through their oath to recognize all the securities recognized under the federal Constitution in terms of citizens of other States within a jurisdiction of some State. Bingham felt this oath might be enforced under the Fourteenth Amendment ? which enforcement powers was lacking under the original Constitution. It is a weak theory because it suggests officers of a State are required to recognize limitations upon only Congress. (Bingham made a seemingly confusing statement several years after the adoption of the amendment which in recent times has gathered much attention in supporting the theory the Fourteenth Amendment intended to make the entire first Eight Amendments a limitation upon the States in regards to their own resident citizens.

    “There is in our Political System, a government of each of the several states and a government of the United States Each is distinct from the other and has citizens of its own.” . US vs. Cruikshank, 92 US 542, “There is a clear distinction between national citizenship and state citizenship. ”
    256 P. 545, affirmed 278 US 123, Tashiro vs. Jordan

    “The only absolute and unqualified right of a United States citizen is to residence within the territorial boundaries of the United States,”
    US vs. Valentine 288 F. Supp. 957

    “The privileges and immunities clause of the 14th Amendment protects very few rights because it neither incorporates the Bill of Rights, nor protects all rights of individual citizens. Instead this provision protects only those rights peculiar to being a citizen of the federal government; it does not protect those rights which relate to state citizenship.”
    Jones v. Temmer, 89 F. Supp 1226

    In closing, I would inquire from the author of this article.. “Why would any sane American willfully chose to accept 14th Amendment political status when the original status (Citizen of a State) provides so much more protections from an ever increasing oppressive Federal Government”? See below for Common Law decisions (relevant to Citizens of a State, but irrelevant to U.S. citizens under the purported 14th).

    “Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.”
    [Miranda v. Arizona, 384 US 436, 491 (1966)]

    “The claim and exercise of a constitutional right cannot thus be converted into a crime.”
    [Miller v. U.S., 230 F.2d 486, at 489 (1956)]

    “. . .there can be no sanction or penalty imposed upon one because of his exercise of constitutional rights.”
    [Sherar v. Cullen, 481 F.2d 946 (1973)]

    Respectfully Submitted,

    Patrick Henry

  21. If it is ruled that the 2nd Amendment only applies to federal districts and territories such as the District of Columbia, then I guess the 16th Amendment only applies to federal districts and territories.

    1. There’s a big leap. Good luck with that.

  22. For those interested, the Second Amendment Foundation has a website on the case which includes all of the case filings/rulings. (link at top of page to case filings)

    Congress of Racial Equality brief covering the 14th Amemdment issues is a good read.

  23. I am not too optimistic the Court will give more than one or two votes to the view Levy and Reason espouse. But, even if the Privileges or Immunities Clause receives one or two votes, that is more meaning that the clause has possesed in nearly 150 years. For future litigation, citizens can seize on this clause, and the re-invigoration of privileges or immunities will commence. As I have argued elsewhere, and am currently writing in an article in anticipation of McDonald v. Chicago, we should be wary of opening Pandora’s box. The privileges or immunities clause is like the due process clause in substance, but without the century of Jurisprudence the conservative court has added to shackle this wide-ranging constitutional provision. If we jump in, head first, without a life preserver, we may soon regret it.

    Check out my blog post on this topic

  24. What’s up with all these pingbacks? They’re almost as annoying as the spambots.

    1. Right. Are they supposed to be a feature or a bug?

  25. Look, never mind all this fancy verbiage about amendments or whatnot.

    I am a violent sociopath, I need a gun. It is against my rights to take that away.


  26. Well Mr Violent Sociopath I know you won’t bother with laws outlawing guns, so rest assured you’re rights will never be infringed upon with any practical effect.

    But it is quite helpful to you to disarm your victims.

  27. this should always be spam

  28. My only point is that if you take the Bible straight, as I’m sure many of Reasons readers do, you will see a lot of the Old Testament stuff as absolutely insane. Even some cursory knowledge of Hebrew and doing some mathematics and logic will tell you that you really won’t get the full deal by just doing regular skill english reading for those books. In other words, there’s more to the books of the Bible than most will ever grasp. I’m not concerned that Mr. Crumb will go to hell or anything crazy like that! It’s just that he, like many types of religionists, seems to take it literally, take it straight…the Bible’s books were not written by straight laced divinity students in 3 piece suits who white wash religious beliefs as if God made them with clothes on…the Bible’s books were written by people with very different mindsets

  29. My only point is that if you take the Bible straight, as I’m sure many of Reasons readers do, you will see a lot of the Old Testament stuff as absolutely insane.

  30. Unlike the First Amendment, which limited the actions of Congress and by extension had to be incorporated, the Second Amendment stated that RKBA was not to be infringed, and lacked detail as to by whom, and therefore applied to all government. By its very language it was already applicable to the states!

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