Unenumerated Rights and the 14th Amendment


In the latest edition of Engage, the journal of the Federalist Society's practice groups, Alan Gura, the victorious lead attorney from the landmark gun rights cases D.C. v. Heller and McDonald v. Chicago, debates Professor Kurt T. Lash of the University of Illinois College of Law, over the question, "Does the Fourteenth Amendment Protect Unenumerated Rights?" It's a fascinating debate with profound implications for the judicial protection of individual rights. Here's a snippet from Gura's argument:

In contrast to what Professor Lash espouses, the approach I urged in McDonald is not at all original. That the Fourteenth Amendment secures a vision of classical liberty has long been established not merely as the "darling of the professoriate," but also that of its Framers, their ratifying public, practically all contemporaneous legal commentators, various Supreme Court Justices, and, most notably, the Fourteenth Amendment's bitterest opponents. One commentator went so far as to applaud the Slaughter-House Court for having "dared to withstand the popular will as expressed in the letter of [the Fourteenth] amendment."…

The Fourteenth Amendment's Framers were quite familiar with the unenumerated rights to earn a living, pursue a livelihood, make and enforce contracts, and own and convey property. The Nation was scandalized by the widespread violation of these rights throughout the unreconstructed South, prompting the adoption of the Civil Rights Act of 1866 and the Amendment that constitutionalized it. Nor were these rights new concepts in this country. The Declaration of Independence itself condemned King George for having "erected a multitude of new offices, and sent hither swarms of officers to harass our people and eat out their substance," a refrain that echoes constantly throughout American political discourse.

Read the entire debate here. For more background on the McDonald approach Gura references, see here and here. Watch Gura talk about the Heller case with Reason.tv below.