CAC Puts The Gem to Work, Files Brief Calling for the Restoration of the Privileges or Immunities Clause

On Wednesday, Constitutional Accountability Center (CAC) filed a brief with the U.S. Court of Appeals for the Seventh Circuit, in the consolidated cases of McDonald, et al., and National Rifle Association of America, Inc., et al., v. City of Chicago, et al., and Village of Oak Park, arguing that the individual right to bear arms, recognized in District of Columbia v. Heller (2008), is “incorporated” against state action via the Privileges or Immunities Clause of the Fourteenth Amendment. CAC’s “friend of the court” brief was filed on behalf of four preeminent constitutional scholars—Professors Richard Aynes, Jack Balkin, Michael Kent Curtis, and Michael A. Lawrence – all of whom have published books or articles concerning the Fourteenth Amendment.

In Heller, the Supreme Court struck down a D.C. ordinance prohibiting handguns, ruling it unconstitutional because the Second Amendment protects an individual right to bear arms. That ruling, however, only recognized this right against infringement by the federal government (and by extension, the District of Columbia): it did not address whether the individual right to bear arms is protected against infringement by state governments. McDonald v. City of Chicago is the most prominent case testing this question of whether cities and states can ban handguns, even though the Court has said the federal government cannot.
Plaintiffs are appealing two lower court rulings that found, based on prior rulings by the Supreme Court and the Seventh Circuit, that the Fourteenth Amendment does not protect against state infringement of an individual right to bear arms.

While it may seem surprising for an organization devoted to “the progressive promise of the Constitution’s text and history” to file a brief on the side of the National Rifle Association, we did so because there are extremely important progressive interests at stake in the outcome of the Second Amendment incorporation fight. In particular, the question of incorporation (which is the only issue addressed in our brief) opens the door to the rejuvenation of the Privileges or Immunities Clause, the text in the Fourteenth Amendment that guarantees substantive fundamental rights, and would bolster progressive efforts to ensure protection of a broad range of civil rights guaranteed by the Constitution.

CAC’s recent report, The Gem of the Constitution, explains that the Privileges or Immunities Clause was intended to be the centerpiece of the Fourteenth Amendment, and the critical constitutional language guaranteeing the fundamental rights of all Americans. However, the Supreme Court effectively wrote it out of the Constitution in 1873 and it has lain dormant ever since. In both The Gem of the Constitution and the McDonald brief, we’re calling for the reconsideration of the Clause and its critical role in protecting fundamental rights and liberties. In The Gem, we say that “all Americans should cheer a ruling that finally honors some of our Constitution’s most important text and history,” and we are delighted to join Alan Gura, counsel for Mr. McDonald, in arguing for that result in this case.

Our brief also brings to the fore the surprisingly progressive Reconstruction history of the right to bear arms. It shows that the framers of the Fourteenth Amendment sought to constitutionally protect this right against state infringement, in large part because they wanted the newly freed slaves to have the means to protect themselves, their families and their property against well-armed former rebels. It is important for this progressive history to be before the court as it considers questions about whether, and more importantly how, the Constitution protects an individual right to bear arms against state encroachment.

The Supreme Court’s ruling in Heller sets up a momentous decision on this incorporation question and CAC intends to fight –- all the way to the Supreme Court if and when it gets that far — for an accurate textual interpretation of the Fourteenth Amendment and realization of its full promise.