Attorney Alan Gura, with whom I had the pleasure of dining just before he argued District of Columbia v. Heller to the United States Supreme Court, is now chal­lenging Chicago’s handgun regu­la­tions. The Court granted certiorari last month. The case, McDonald v. Chicago, goes further than Heller did because the District of Columbia is a Federal juris­diction. Heller didn’t address whether the Second Amendment also applied against state govern­ments. McDonald will now try to answer that question.

Applying the protec­tions of the Bill of Rights (which on their face apply only to the Federal government) to the states is a legal process called incor­po­ration, because these protec­tions are, one by one, deemed to have been “incor­po­rated” into the 14th Amendment’s Due Process Clause. Due Process incor­po­ration is a messy, convo­luted business because it requires finding that a protection found in the Bill of Rights is essential to the concept of ordered liberty and deeply ingrained in our nation’s history and tradition, such that not restraining the states would deny citizens of a fair day in court. Due Process is a clunky way for the Federal government to go about protecting indi­vidual rights at the state level. A much better way would have been to use the 14th Amendment’s Privileges or Immunities Clause.

The Privileges or Immunities Clause is little-​​known by the general public. The public knows about Equal Protection and Due Process, but not Privileges or Immunities. It reads:

No State shall make or enforce any law which shall abridge the priv­i­leges or immu­nities of citizens of the United States.

It sounds like an amazingly powerful tool for the Federal government to use to keep state govern­ments from violating indi­vidual rights protected by the U.S. Constitution. But it isn’t.

In 1865, Louisiana passed a law granting to the City of New Orleans to charter an exclusive slaugh­ter­house operator. The goal was to reduce slaugh­ter­house waste ending up in the Mississippi, and its effect was the confis­cation of private slaugh­ter­houses in and around the city and the creation of a polit­i­cally powerful, government sponsored slaugh­ter­house monopoly. Independent butchers, now out of jobs by government fiat, sued under the new 14th Amendment, arguing that all three clauses (Privileges or Immunities, Equal Protection, and Due Process) inde­pen­dently prohibited the State of Louisiana from doing what it had done. The suits were addressed together by the Court and are today collec­tively referred to as the Slaughterhouse Cases, decided in 1873.

The Court upheld the monopoly. It ruled that Equal Protection did not protect the butchers because they were not being discrim­i­nated against on the basis of race, and that Due Process did not protect the butchers because they had not been excluded from the political process. (Substantive Due Process, the modern doctrine of incor­po­rating substantive rights into the 14th Amendment, arose much later in response to the Slaughterhouse Cases.) And most depress­ingly, it ruled that Privileges or Immunities only protected rights peculiar to being a citizen of the United States (as against state citi­zenship). The clause has been effec­tively mean­ingless ever since. Substantive Due Process doctrine arose later as a way to shoehorn Federal Constitutional rights into the still-​​operative Due Process Clause. Had the Privileges or Immunities Clause remained viable, there would have been no need to indi­vid­ually examine each protection in the Bill of Rights to see whether the rights they protect are “essential to the concept of ordered liberty” and “deeply ingrained in our nation’s history and tradition” before requiring state govern­ments to observe them. The Privileges or Immunities Clause should have done this automatically.

The protec­tions of the Second (right to bear arms), Third (against quar­tering of soldiers), and Seventh Amendments (right to trial by jury in civil cases in excess of $20) have never been incor­po­rated into the 14th Amendment’s Due Process Clause and therefore do not apply against the states. If the Privileges or Immunities Clause were viable, most scholars agree that it would include all the rights protected by the first eight Amendments.

Mr. Gura will be arguing in McDonald v. Chicago, inter alia, that the Court should reverse its ruling on the Privileges or Immunities Clause from the Slaughterhouse Cases.

Popehat has excellent commentary on the case and its possible implications.

While I dislike the rule from Slaughterhouse and would love to see it reversed, I do not think the current Court will like this argument very much. Substantive Due Process doctrine is too old and estab­lished to get tossed out by this Court. I will remain quietly hopeful, though, because I know that if anyone can convince the Court to make a change, Mr. Gura can.