If you haven’t heard yet, the Supreme Court has handed down a favorable 5-4 decision on McDonald v. City of Chicago. The decision extends second amendment protections to cities across the country which is a big deal and represents the restoration of an important Constitutional right.
But that’s not all, the really good news, as our friends at the Institute for Justice point out, “Today’s ruling should be celebrated not just by gun owners, but by everyone who cares about liberty and the unique role played by courts in protecting it under our system of government.” Why is that?
Justice Thomas agreed that the gun ban should be struck down, but instead proposed “a more straightforward path to this conclusion, one that is more faithful to the Fourteenth Amendment’s text and history”—namely, the 14th Amendment’s “Privileges or Immunities Clause.” That Clause states that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
“The most important takeaway from today’s decision is that it remains an open question which provision in the 14th Amendment protects the right to keep and bear arms against state infringement,” said IJ Senior Attorney Clark Neily, who was one of the three attorneys who litigated District of Columbia v. Heller, the 2008 case that struck down the D.C. gun ban.
The phrase “privileges or immunities” may be unfamiliar today, but as Justice Thomas’s concurrence shows, 19th-century Americans used it synonymously with a term modern Americans know very well: rights. After the Civil War, officials throughout the South systematically violated the rights of newly freed blacks and white abolitionists in their states and sought to keep them in abject poverty and terror. The whole point in amending the Constitution to add the 14th Amendment—and with it the Privileges or Immunities Clause—was to end the pervasive culture of oppression and tyranny by state and local governments. As the Institute for Justice explained in its amicus brief, two rights the Privileges or Immunities Clause was clearly intended to protect were armed self-defense and economic liberty.
But the Supreme Court essentially wrote the Privileges or Immunities Clause out of the 14th Amendment in an 1873 decision called the Slaughter-House Cases. The result was predictably disastrous: Those who were politically disenfranchised would continue to be economically marginalized and stripped of any meaningful ability to protect themselves from the vicious reprisals and Klan violence that soon became a shameful hallmark of Reconstruction.