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."
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:
The danger in this expansive interpretation [of Privileges or Immunities], however, is the often-made observation that the [clause] may be something like a dormant volcano. For well over a hundred years the clause has remained in the background of the constitutional landscape. A dormant volcano may not be very exciting, but once it erupts the excitedment may prove a bit much. Its course of eruption would be both difficult to predict and contain.
Fortunately, the Supreme Court appears wholly uninterested in stoking this dormant volcano. Some academic theories are best left in the law reviews, where the worst damage they can do is earn more professors tenure.