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McDonald v. City of Chicago

The Second Amendment and the privileges or immunities clause.

5:30 PM, Mar 4, 2010 • By ADAM J. WHITE
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But in fact, nothing could be further from the truth.  The privileges or immunities clause's 21 words are facially opaque, and the history of their promulgation and ratification is a matter of great academic argument.  True, libertarians such as Barnett (here) and Professor Kurt Lash (here and here), among others on the left and right, have marshalled substantial evidence in their favor, citing the statements of legislators and other evidence from the time of the Fourteenth Amendment's ratification for the proposition that the privileges or immunities clause gives constitutional protection to myriad unenumerated rights, including the right to keep and bear arms. 

But Professor Philip Hamburger has drawn precisely opposite conclusions.  According to Hamburger's latest paper, which also draws on vast historical evidence, the Fourteenth Amendment's privileges or immunities clause was intended only to end southern states' contention that they could deny blacks the rights ordinarily enjoyed by citizens within the state because blacks were not U.S. citizens.  (The same section of the Fourteenth Amendment established that blacks born in the United States are citizens.)  Hamburger is not the first skeptic of Barnett's/Lash's/Petitioners' position; he's only the latest and most effective.

In addition to the privileges or immunities clause's unclear meaning, the petitioners' interpretation of the clause would cause utter chaos as a matter of practical governance.  What other rights would be protected by the petitioners' view of the privileges or immunities clause?  During his oral argument, Mr. Gura specifically declined to explain:

Mr. Gura:  We can't give a full description of all unenumerated rights that are going to be protected by the Fourteenth Amendment.

Justice Scalia:  That doesn't trouble you.

Mr. Gura:  No it does not and it shouldn't trouble the Court because Court addresses due process cases [involving unenumerated rights] all the time without saying [what the limit is]."

In short, Mr. Gura's only answer is that the Supreme Court's incorporation of rights through the due process clause has no bright-line limit, so the absence of such a limit should not be a strike against his reading of the privileges or immunities clause.  But Mr. Gura's answer wholly ignores the fact that the Court's consideration of due process clause cases is at least guided by decades of precedent on the subject.  That body of precedent, for all of its faults -- and its faults are legion -- offers limitations and guidance, and those rules and standards are the basis for the public's and government's generally settled expections on the subject.  Where the text is not at all conclusive (and here it certainly is not, Professor Barnett's argument in the Wall Street Journal notwithstanding), where the history is inconclusive, and where the scope and effect of a decision charting a radical new course of law is unfathomable, 140 years of precedent should be determinative in all but the most egregious cases.  McDonald v. City of Chicago is no such case, especially when precisely the same outcome can be achieved through the due process precedents.

The petitioners' argument in McDonald is an example of the very sort of extreme methodology that was decried by Fourth Circuit Judge J. Harvie Wilkinson after the Heller decision.  Wilkinson responded to Heller by arguing that conservatives' devotion to a law's original public meaning, while laudable in most cases, cannot wholly replace other conservative principles in judicial decision making, such as precedent, federalism, popular rule, and others -- especially when the legal text at issue does not have an obvious, determinative original public meaning.

Not coincidentally, Judge Wilkinson is a longtime skeptic of the radical privileges or immunities clause argument advanced by the petitioners.  In a 1989 law review artcle, he warned:

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