Will the Supreme Court Restore the Privileges or Immunities Clause?


Yesterday the petitioners in the landmark Second Amendment case McDonald v. Chicago, which challenges the Windy City's draconian handgun ban, filed their opening brief [PDF] with the Supreme Court. At issue is whether the Second Amendment applies to state and local governments, and whether it does so via the 14th Amendment's Privileges or Immunities Clause or its Due Process Clause. As I've previously discussed, this case matters not just for Second Amendment rights, but for economic liberty as well, since the 14th Amendment—and its Privileges or Immunities Clause in particular—was written and ratified to enshrine the free labor philosophy of the anti-slavery movement. But first the Court must overturn its disastrous decision in The Slaughterhouse Cases (1873), which, in the words of dissenting Justice Stephen Field, reduced the Privileges or Immunities Clause to a "vain and idle enactment."

To that end, the petitioners have devoted the vast majority of their brief to carefully explaining why "the right to keep and bear arms is among the privileges or immunities of American citizenship that states may not abridge." The next step in the case is Chicago's brief, which is due to the Court on December 16, followed by the petitioner's reply brief on January 15. Oral arguments are then expected in February. Hopefully this is another one for the history books.