Two years ago, the Supreme Court heard the hotly controversial Heller case, in which it ultimately recognized a personal right to keep and bear arms under the Second Amendment. That case, which pertained only to federal (and District of Columbia) gun regulations, not state or other local gun regulations, sharply divided activists along partisan lines.
The Court is now considering McDonald v. City of Chicago, a follow-up case asking whether persons have an equivalent right against state and local governments. The familiar partisan divide has returned, but this time the more heated divide separates dueling factions on the right. Even more surprising is the subject of the debate: A 137-year-old line of Supreme Court precedent involving the Fourteenth Amendment.
The Fourteenth Amendment is the constitutional provision that has been used to apply to the states the Bill of Rights protections, such as the Second Amendment's, that do not themselves directly limit the states. And for at least 85 years, the Supreme Court has relied on the amendment's due process clause as the basis for "incorporating" the Bill of Right's protections against the state and local governments.
Thus, the most straightforward argument in support of gun rights in Chicago is that the right to keep and bear arms is incorporated against the states by the Fourteenth Amendment's due process clause. That is the primary argument of the NRA in support of gun rights. But the main proponent of gun rights in this case -- the petitioners, represented by Alan Gura, who won Heller -- relegated that argument to a virtual afterthought. Before seven pages on that argument at the end of their brief, petitioners spent fifty-seven pages arguing a much more radical case -- that the gun rights are protected by the Fourteenth Amendment's privileges or immunities clause.
The privileges or immunities clause -- "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" -- is a darling of academics and libertarians, who argue that it forbids the states from infrigning a panoply of rights, not limited to those listed in the Bill of Rights. The Supreme Court rejected that argument 137 years ago, in the Slaughterhouse Cases. Nevertheless, the petitioners argue that the Supreme Court should jettison the entire line of precedent and, beginning with the right to keep and bear arms, endorse the privileges or immunities clause as the basis for innumerable rights.
How many rights? No one knows, and Mr. Gura frankly admitted as much at oral argument.
Given the limitless scope of this argument, and its wholesale incompatibility with nearly one and a half centuries of established precedent, even Supreme Court justices seemingly supportive of gun rights against state governments were vocally skeptical of the petitioners' argument, when the case was argued this week. Instead, the justices were amenable to the NRA's straightforward due process argument (which was presented by Paul Clement, President Bush's solicitor general). The Court appears highly likely to endorse some form of gun rights against the states, under the NRA's due process theory of incorporation. The petitioners' 57 pages of argument on the privileges or immunities clause almost certainly will be irrelevant to the Court's resolution of the case.
Libertarian activists have reacted to the Court's skepticism with outright derision. In the Wall Street Journal, law professor and blogger Randy Barnett asserted that the justices were "deeply afraid" of endorsing the petitioners' (and Barnetts') interpretation of the privileges or immunities clause. (On the Volokh Conspiracy blog, Barnett went so far as to assert that the justices' failure to actively challenge the petitioners' description of history proved that the petitioners were correct -- instead of demonstrating, for example, that the justices were simply wholly underwhelmed by the argument.) At NRO's Bench Memos blog, attorney Clark Neily criticized the Court's skepticism and asserted that the history supporting the privileges or immunities argument is "stark" and "undisputed."
