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.

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  1. Did not Chief Justice Roger Taney admit that keeping and bearing arms was a right American citizens had in the Dred Scott case?

  2. Yada, yada, yada. The Statue of Liberty is almost under water in our misguided efforts to save Lobster Girl.

  3. You really should find a pic of Ronald McDonald with a gun to add to this blog post!!!!

  4. They have me convinced.

  5. Prediction: The Chicago law is held unconstitutional under the Second Amendment as applied to the states through the Due Process Clause of the Fourtheenth Amendment, and the Court doesn’t reach the Privileges & Immunities Clause issue.

    1. Concur. SCOTUS will never revive the P & I Clause, since they can continue to reach whatever result they want under the DP Clause.

    2. Attorney, isn’t privileges and immunities a component of Article 4, Section 2, while the 14th covers privileges or immunities? Can’t remember where I learned this, but I recall that the second instance of the term was intentionally meant to reinforce the first instance. How come, legally speaking, the 2 aren’t always trotted out as a way to argue that our ancestors really, really meant it?

  6. Or at least post that pic of Ronald McDonald being carried off by two police officers, which you can find on about a gazillion websites.

  7. Considering that the Second Amendment states “shall not be abridged”, and does not specify specific ways in which in might be abridged, I think that it applies to any and all jurisdictions applicable to any given citizen.

    (This simple and concrete reasoning also leads to the inescapable conclusion that banning firearms on federal property on which the user is forced to interact with the government is unconstitutional. No, I haven’t figured out whether it applies to the DMV, but I’ll say “yes” because mandatory licensing should never be an onerous enough reason for a qualified, law-abiding participant to avoid an economic transaction.)

  8. the Constitution? are you serious?

  9. The next step in the case is Chicago’s brief

    That will be amusing…a legalese version of “ewww guns are evil and icky and scary!”

  10. Nine comments. Hmmm. I’m guessing, the rest of us aren’t as pumped about the privileges and immunities clause as Damon is.

    1. No one thought much about Lopez prior to Rehnquist’s opinion. Sadly, rather than a watershed, it was a thunderburst.

  11. Anonymous … correction the 2nd says:
    “… shall not be infringed.” not abridged. Big difference there, no?

    1. I don’t know how I missed that on preview.

      It seems “infringe” would be stronger than “abridge”, but I’m just a caveman.

  12. I spent my life, “defending the Constitution, against all enemies, foreign and domestic.” I don’t believe the founding fathers thought the document required a JD to understand. IANAL and proud of that. They wrote an oath that most (all) officers of the United States take…all enemies, foreign and domestic. I swore it, more than once. It wasn’t an oath to defend the United States, its people, you, my wife, yada, yada, yada. I swore to defend the constitution. That binds us together…unless YOU are an enemy of of that Constitution. Pick a side…

  13. No attorney (including Gura) has responded to this incontrovertible argument, even to the extent of telling me I’m nuts. The Second is the ONLY one of the first 10 that CANNOT apply to the Federal government. That’s why it’s separate from the First. At the time it was ratified there was not and never had been a Federal militia. There was no management or command structure for a militia. There was only the President who would be CinC IF the State militias were ever called to Federal service; no Federal officer between the President and an activated militia. The Militia Act of 8 May 1792 was a FEDERAL law that followed ratification of the Second Amendment. It made clear what was meant by “a well regulated militia.” Among other tightly detailed requirements, the Act defined the “right” that is not to be infringed. Every militiaman must arm
    himself at his own expense with a musket, bayonet and belt, two spare flints, a cartridge box with 24 bullets, and a knapsack. Men owning rifles were required to provide a powder horn, 1/4 pound of gun powder, 20 rifle balls, a shooting pouch, and a knapsack.

    The Federal government required this by law; the Second Amendment prohibited state infringement. The sequence of effectiveness of the amendment and the act doesn’t contravene that truth except if one accepts the idea that the drafters had no idea of the implementing measures they and their colleagues would devise.

    I fear this is much disorganized, but I did want to offer it this morning.

  14. Flavet, I heartily agree with you except for this: All states ratified the Constitution and the Bill of Rights. That means they, on joining the Union accepted the US Constitution as the Law of the Land, and which trumped any law they might pass. AND, Amendment II doesn’t preempt the States, it preempts ALL government entities within the United States. “Shall not be infringed” doesn’t include, nor should it allow, any local, state, or federal caveats.

  15. Keep in mind that the US Constitution means nothing to the present Administration and the azzwipes in Congress. They know that an armed citizen blocks their tyranical ideas and legislation. Dictators do not like guns.

  16. The way I see it, SCOTUS rules 5-3 that the Second Amendment is incorporated against states and municipalities, in McDonald v. Chicago. This assumes that Sotomayor has the balls to recuse herself from this case.

    SCOTUS should also include language in its ruling that all Americans residing in states and commonwealths (VA, PA, MA, KY) and in all counties, parishes (in LA) and boroughs (in AK) therein; may enjoy the right to keep and bear arms. This would preclude any attempt by MA to circumvent the 2A by proclaiming that MA is a commonwealth and NOT a state, for example.

  17. The Slaughterhouse Cases is best known for reading the Privileges or Immunities Clause of the Fourteenth Amendment out of the Constitution. However, the case is also known for deciding that citizenship of a State was to be separate and distinct from citizenship of the United States. This, of course, has a direct bearing on citizenship under the Constitution. As before this case, citizenship of a State and citizenship of the United States were considered one in the same.

    In addition, “[t]he Supreme Court, however, adopted a narrower view when it first interpreted the Fourteenth Amendment in 1873 in the Slaughter-House Cases. These consolidated cases addressed several butchers’ constitutional challenges under the Reconstruction Amendments to a Louisiana statute granting a monopoly on the butchering of animals in New Orleans to a single slaughtering company. Justice Miller, writing for the five Justices in the majority, rejected each of the butchers’ constitutional claims, holding that the statute did not violate the guarantees of the Thirteenth Amendment or the Fourteenth Amendment’s Privileges or Immunities Clause, (fn 86) Equal Protection Clause, or Due Process Clause, all of which he believed were concerned predominantly with the protection of the recently freed slaves. . . .


    fn 86: Id. at 72-80 The Court divined a purported distinction in the text of the Fourteenth Amendment between the ‘privileges and immunities of citizens of the United States’ and those ‘of citizens of the several states.’ Id. at 74. The Court then expressed that the clause only protected ‘the privileges or immunities of citizens of the United States,’ which it limited to those owing ‘there existence to the Federal government, its National character, its Constitution, or its laws.’ Id. at 79. . . .”

    Source: Rhodes, Charles W. (Rocky), “Liberty, Substantive Due Process, and Personal Jurisdiction”, Tulane Law Review, Vol. 82, No. 2, 2007. This paper can be downloaded at the Social Science Research Network at… .


    There is a desire, by many, to overturn the Slaughterhouse Cases. The reason centers on the Privileges or Immunities Clause of the Fourteenth Amendment. Those who wish to overturn Slaughterhouse Cases believe: a) that there is only one citizen under the Constitution since the ratification of the Fourteenth Amendment and the Slaughterhouse Cases, b) that the privileges and immunities of this citizenship; that is citizenship of the United States, should be those described in Corfield v. Coryell. They do not know that there is a second citizenship now under the Constitution (and not the Fourteenth Amendment), and that this citizenship has those privileges and immunities described in Corfield v. Coryell. This citizenship is citizenship of the several States.

    The fact there is a citizen of the several States in law is settled!……p;id=16289 . [Footnote]

    The privileges and immunities of citizens of the several states are those described by Corfield, cited in the Slaughterhouse Cases. This is reaffirmed in Hodges v. United States:

    “In the Slaughter House Cases, 16 Wall. 36, 76, in defining the privileges and immunities of citizens of the several States, this is quoted from the opinion of Mr. Justice Washington in Corfield v. Coryell, 4 Wash. Cir. Ct. 371, 380.” Hodges v. United States: 203 U.S. 1, at 15 (1906).

    The Supreme Court does not have to “restore” the Privileges or Immunities Clause of the Fourteenth Amendment. People need to understand that there are now two citizens under the Constitution, each with a different set of privileges and immunities.



    So there are now two citizens under the Constitution of the United States. One needs to find out information on both. For a citizen of the United States that is easy. Just about anywhere. For a citizen of the several States one will have to begin here:

  18. To everyone, (Part 1 of 2)

    I am writing to inform you that the link I provided in my prior comment (Dan Goodman 12/31/09 @ 11:16pm) no longer works. The new location for it is:

    The fact there is a citizen of the several States in law is settled!…..amp;id=329


  19. To everyone, (Part 2 of 2)

    There is also the following which I think would be appropriate.

    Comment on Petitioner’s Brief: McDonald v. City of Chicago…..Itemid=126



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