See the op-ed below from the Institute for Justice, regarding today’s 5-4 Supreme Court Second Amendment Gun Rights decision. In arguing for upholding gun rights in terms of the 14th Amendment’s Privileges or Immunities Clause—in contrast to activists like Alito and Breyer—Associate Supreme Court Justice Clarence Thomas, focused on what the text of the Constitution says, rather than on theoretical discussions concerning what is or is not fundamental. And…And…shows the Constitution clearly intended to protect citizens’ right to self-defense and economic liberty.
Arlington, Va.—Gun owners today rejoiced as the U.S. Supreme Court today struck down the city of Chicago’s ban on handguns in McDonald v. City of Chicago. 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. The Institute for Justice (IJ) has for decades been among the most consistent defenders of an engaged judiciary and an appropriately originalist interpretation of the Constitution, including particularly the Privileges or Immunities Clause of the 14th Amendment. As today’s ruling makes clear, the right to keep and bear arms is a uniquely American, and decidedly fundamental individual right. That will be the result for which the McDonald decision will be remembered and, for many, celebrated.
But McDonald is about much more than just guns. At its heart, McDonald is a case about liberty. The Court was deeply divided over whether the Constitution protects a right to own guns from improper interference by state and local governments—just as District of Columbia v. Heller in 2008 held that the Second Amendment protects such a right against federal interference. Four justices voted to strike down Chicago’s handgun ban, finding a right to keep and bear arms under a doctrine called “substantive due process.” Four disagreed, voting to uphold the gun ban.
The pivotal fifth vote was Justice Clarence Thomas, who noted that, for all the disagreement between the two groups of four Justices, “neither side argues that the meaning they attribute to the Due Process Clause was consistent with public understanding at the time of its ratification.” 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. Neily, who co-authored IJ’s amicus briefs throughout the appellate process in McDonald, explained, “Today’s outcome is a tremendous victory for liberty, and we are pleased that it hinges on Justice Thomas’s compelling account of the history and purpose of the 14th Amendment, including the central role of the Privileges or Immunities Clause.”
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.
“When the Institute for Justice was founded almost 20 years ago, it was unthinkable to most people that the Supreme Court would ever revisit the Slaughter-House Cases,” said Chip Mellor, IJ’s co-founder and general counsel. “Today’s divided opinion shows the enormous distance we have covered since then and sends a strong signal that the Court cannot remain out of step with the original meaning of the Constitution forever.”
The other Justices who voted to strike down the gun ban did not join Justice Thomas’ interpretation of the Privileges or Immunities Clause. Justice Samuel Alito, writing for the four-justice plurality, found “no reason to reconsider [Slaughter-House’s] interpretation here,” instead relying on a set of precedents outlining a “substantive due process” inquiry into “whether the right to keep and bear arms is fundamental to our scheme of ordered liberty.”
Justice Thomas rejected this sort of free-floating inquiry, suggesting that the Court should focus on questions of what the text of the Constitution means, rather than on which rights judges find sufficiently fundamental. “To be sure, interpreting the Privileges or Immunities Clause may produce hard questions,” Justice Thomas’ opinion acknowledges. “But they will have the advantage of being questions the Constitution asks us to answer.”
“People who are worried about judicial activism should be worried about the fact that eight justices today argued that the question of whether Americans enjoy a right to keep and bear arms would come down to the abstract question of how ‘fundamental’ that right is,” said IJ Staff Attorney Robert McNamara. “Justice Thomas’ opinion points toward principled judicial engagement. Judges will be constrained by what the provisions of the Constitution actually meant when they were adopted, but at the same time they must give full force to the powerful protections for individual rights encompassed in the 14th Amendment.”
“Overturning the Slaughter-House Cases was one of the Institute for Justice’s founding goals, and today’s decision gives that mission new vigor,” concluded Mellor. “IJ has fought and will continue to fight for principled judicial engagement, which means that courts should strike down when the executive or legislative branches violate individual rights or exceed powers enumerated in the Constitution. Today’s divided Court opens the door to restoring the 14th Amendment as a crucial bulwark of individual liberty against overreaching government power. We are confident the Court’s understanding of the law will soon catch up to the scholarly consensus, and IJ stands ready to help defend the rights of all Americans to live their lives free from abuse at the hands of state governments.”
Journalists can find comprehensive material on the Privileges or Immunities Clause by visiting: www.ij.org/PorI.