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.