Supreme Court Grants Review in Second Amendment Incorporation Case; Court Could Revisit 1873 Ruling that Gutted the Privileges or Immunities Clause

Today, the Supreme Court announced its decision to hear McDonald v. City of Chicago (08-1521), a key case that asks whether the Second Amendment individual right to bear arms, identified by the Supreme Court in Heller v. District of Columbia (2008), applies to states and local governments. The case, coming out of the U.S. Court of Appeals for the Seventh Circuit, arises from a challenge to a Chicago municipal handgun ban, and raises a question that was also recently addressed by the Second and Ninth Circuit Courts of Appeals.

CAC is hailing the Court’s decision to hear this case. As we made clear in our brief encouraging the Court to grant review, filed on behalf of a preeminent group of constitutional scholars, McDonald is about much more than guns: At issue is not only whether the Second Amendment right to bear arms is applied, or “incorporated,” against state action through the Fourteenth Amendment, but how it is incorporated. CAC has joined the parties in urging the Court to root the individual right to bear arms in the Privileges or Immunities clause of the Fourteenth Amendment – a ruling that would require the Court to revisit an 1873 Supreme Court opinion that effectively wrote the clause out of the Constitution. Restoring this explicit protection for substantive liberty would not only secure appropriate Second Amendment rights against infringement by state and local government action, but would also provide a more secure textual foundation for ensuring other fundamental rights (as we discuss here).

Laudably, the Court today did not shrink from this task, agreeing to hear the full question of where in the Constitution substantive liberties against state infringement are best rooted. The correct answer to this question should be important to all Americans, not just those focused on gun rights.

For more information regarding the history of the Privileges or Immunities Clause of the Fourteenth Amendment, see our report The Gem of the Constitution, and related commentary here, here, and here.

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