Professors’ Brief Filed in Key Second Amendment Case Calls for Restoration of Privileges or Immunities Clause and Protection of Individual Right To Bear Arms Against State Infringement

by Elizabeth Wydra, Chief Counsel, and David Gans, Director of the Human Rights, Civil Rights, and Citizenship Program, Constitutional Accountability Center

Ten days ago, on the eve of the Sotomayor hearings, CAC filed a brief in the Supreme Court asking the Court to review a case presenting the issue of whether—and, if so, how—the Constitution protects against state infringement of the individual right to keep and bear arms recognized by the Court last year in District of Columbia v. Heller. While live-blogging the Sotomayor hearings kept us too busy last week to share the news of our brief, the hearings only reinforced the importance of the Second Amendment incorporation question and the need for a closer look at the Privileges or Immunities Clause, which itself was the subject of a brief, if confused, line of questioning by Senator Hatch.

CAC’s “friend of the court” brief was filed in McDonald v. City of Chicago, a challenge to several Chicago-area municipal handgun bans on the ground that the Fourteenth Amendment requires state and local governments to respect the individual right to bear arms. CAC’s brief was filed on behalf of a coalition of prominent constitutional law professors of diverse ideologies, including Jack Balkin of Yale Law School and Georgetown’s Randy Barnett, as well as Richard Aynes, Michael Kent Curtis, Michael Lawrence, and Adam Winkler. The scholars on the brief represent a remarkable consensus that the Privileges or Immunities Clause of the Fourteenth Amendment protects substantive fundamental rights, but was essentially read out of existence by the Supreme Court in 19th-century rulings such as The Slaughter-House Cases and United States v. Cruikshank. As another preeminent scholar, Akhil Amar, has written, “[v]irtually no serious modern scholar—left, right, and center—thinks that this is a plausible reading of the Amendment.” CAC’s brief asks the Court to right Slaughter-House’s wrong and restore the Privileges or Immunities Clause to its proper constitutional place.

Our brief echoes CAC’s report, The Gem of the Constitution, which explains that the Privileges or Immunities Clause was intended to be the centerpiece of the Fourteenth Amendment, and contains the critical constitutional language guaranteeing the fundamental rights of all Americans, including rights set out in the Constitution as well as unwritten substantive fundamental rights. 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 urging the Court to grant review in McDonald and make such a ruling in this case.

While we believe all Americans should support reviving the Privileges or Immunities Clause, the fight over Second Amendment incorporation should be especially important to progressives (a point that was left out of Lyle Denniston’s otherwise helpful overview of the case in SCOTUSBlog on July 20). As we have explained, a ruling that overrules Slaughter-House and restores the Privileges or Immunities Clause to its intended constitutional role will undergird the Court’s existing fundamental rights jurisprudence, a line of cases that starts with Meyer v. Nebraska and runs through cases such as Roe v. Wade and Lawrence v. Texas.

Rejuvenating the Privileges or Immunities Clause would provide a textual hook for the protection of fundamental rights, immeasurably strengthening their foundation. With a text that explicitly protects the substantive liberties of all Americans finally read back into the Constitution, conservative claims that the Court has no textual basis to safeguard substantive constitutional rights would lose their force, and the protection of fundamental constitutional rights would be on secure textual footing.

The work of the constitutional law professors who have joined CAC’s Supreme Court brief in McDonald has definitively discredited the reasoning of Slaughter-House and other Supreme Court cases that relegated the Privileges or Immunities Clause to a constitutional afterthought. We hope that the Supreme Court grants review of the McDonald case to set the record straight on the Privileges or Immunities Clause and its protection of substantive fundamental rights.

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