I have to say that this isn’t an issue that I thought about much before doing my research for Holdings vs. Dicta. After meeting Professor Nelson Lund of George Mason University’s School of Law, I realized that this isn’t just some obscure theory from a few conservative professors–this is a robust textual theory that, if adopted, could more effectively constrain governmental power when states infringe on the rights of their citizens. The critical question is, “Why was the Fourteenth Amendment passed?”
Now I’m no history buff, but I learned in school that the Thirteenth, Fourteenth, and Fifteenth amendments were passed to protect the rights of the freed slaves after the Civil War. Specifically, the Fourteenth Amendment was intended to overrule the Supreme Court’s decision in Dred Scott v. Sandford, a case in it was decided that African slaves had no constitutional rights and could never be citizens of the United States.
Unfortunately for this argument, the 1873 Supreme Court Slaughterhouse Cases so narrowed the protection of privileges and immunities that they have been worthless for nearly 150 years. Years later, the Supreme Court, reluctant to overrule the Slaughterhouse cases, chose to selectively incorporate some of the rights guaranteed in the Bill of Rights through the word “liberty” in the due process clause, a process now referred to as “Substantive due process.” While due process of law has otherwise always been interpreted to be a procedural right (that is, one is entitled to the necessary hearings in court before his or her rights can be lawfully violated), the substantive due process doctrine essentially holds that some rights violations are unacceptable even if proper procedures are followed. This year’s McDonald v. City of Chicago case, which was granted certiorari yesterday, has become the modern day vehicle for overruling the Slaughterhouse Cases and restoring substantive rights through privileges and immunities.
While the practical consequences of using privileges and immunities instead of substantive due process claims are minimal, there are several potential advantages so such a doctrine. One, in particular, is that one of the chief purposes for the Fourteenth Amendment, protecting individuals from their state and national government, can be totally achieved through privileges and immunities without regard to other factors. Key to this is that there is a textual basis for privileges and immunities, whereas due process as a substantive right lacks any legitimate textual reinforcement, other than an overbroad reading of the word “liberty.” While I have been previously reluctant to accept privileges and immunities arguments for incorporation of the Bill of Rights, I am inclined to support them now, because it appears that there are no trade0ffs to be made, other than the overruling of a 136 year-old legal case which was incorrectly decided in a way that narrowed constitutional protections for clearly articulated and enumerated constitutional rights.
I will continue to follow this case, but I welcome the Supreme Court’s choice to reinterpret such an important clause of our Constitution in the context of past case law. This case provides a vehicle not only to defend Second Amendment protection, but also to reinforce the most critical rights guaranteed in our Constitution.
For further reading on this issue, I suggest that everyone hit up Volokh, where you’ll find this list of links, all of which are relevant to the discussion at hand:
The website for all the Chicago case filings is here. For 19th century history, Stephen Halbrook is by far the most important scholar. His articles include: The Freedmen’s Bureau Act and the Conundrum Over Whether the Fourteenth Amendment Incorporates the Second Amendment, Northern Kentucky Law Review (2002); Personal Security, Personal Liberty, and The Constitutional Right to Bear Arms: Visions of the Framers of the Fourteenth Amendment, Seton Hall Constitutional Journal (1995); The Right of Workers to Assemble and to Bear Arms: Presser v. Illinois, One of the Last Holdouts Against Application of the Bill of Rights to the States, University of Detroit Mercy Law Review (1999); and (co-authored with Cynthia Leonardatos and me), Miller versus Texas: Plice Violence, Race Relations, Capital Punishment, and Gun-Toting in Texas in the Nineteenth Century–and Today, Journal of Law and Policy (2001).
The lead attorney in the Supreme Court case of McDonald v. Chicago is Alan Gura. He did an excellent job in District of Columbia v. Heller, so the new case is in very good hands.
Thank you so much, Mr. Gura.
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