Legal Commentary

Privileges or Immunities Extravaganza

By David Kopel

On March 2, the Supreme Court will hear oral argument in McDonald v. Chicago, a challenge to the handgun bans in Chicago and Oak Park. The Question Presented by the Court asked if the bans should be considered unconstitutional under the Fourteenth Amendment?s Due Process clause, or under the Privileges or Immunities clause. There?s been plenty of interesting scholarship recently on Privileges or Immunities. Here?s a guide to some of the most important articles:

Gerard N. Magliocca, Why Did the Incorporation of the Bill of Rights Fail in the Late Nineteenth Century? 94 Minn. L. Rev. 102 (2009). Today, the conventional wisdom is that The Slaughter-House cases asserted that the Privileges or Immunities clause does not protect the Bill of Rights. But until 1900, the conventional reading?including in Supreme Court opinions?was that the case only rejected application of procedural rights to the states. The idea that SH rejects the application of substantive rights (e.g., freedom of speech, right to keep and bear arms) came during the progressive era, as the Court and the rest of the legal elites panicked about labor unrest, and decided that states should have wide latitude to suppress dissent. The historical evidence supports using PI to make the Second Amendment apply to the states.

Timothy Sandefur, Privileges, Immunities, and Substantive Due Process, 5 NYU J.L. & Liberty (forthcoming). SH?s most egregious error was in nullifying the principle of ?paramount national citizenship? which lay at the heart of the ideology of the 14th Amendment?s advocates. Revitalizing the PI clause should not lead to the abandonment of ?substantive due process.? This article provides the best collection of citations and sources in  defense of the theory that, long before the 14th Amendment was written, it was widely understood that the principle of ?due process? substantively prohibited certain arbitrary acts by legislatures (e.g., giving A?s property to B) even if the proper procedures were followed.

Kenneth A. Klukowski,  Citizen Gun Rights: Incorporating the Second Amendment Through the Privileges or Immunities Clause, 39 N.M. L. Rev. 195 (2009). Argues that SH should be affirmed, and that the Second Amendment can be protected against state/local infringement by the PI clause, because the Amendment fits under SH?s restrictive definition of rights of national citizenship which are created by the Constitution. Makes policy arguments that PI is superior to Due Process for protection of 2d Amendment rights, since the former applies only to citizens. Warns that overruling SH could provide a future Court with too many opportunities to fabricate novel ?rights? out of PI.

Ilya Shapiro & Joshua Blackman. Opening Pandora?s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment, Georgetown J.L. & Pol?y (forthcoming). Addresses the concerns raised about a revived PI clause?in particular that the ?Constitution in 2020? professors are eager to use PI to create positive rights to various forms of government spending, and to use PI to import the p.c. ?norms? which are supposedly found in international law. Shapiro and Blackman argue that the current Court should be proactive, and should use McDonald to write a strong opinion which declares that PI protects the same set of rights as are protected in Washington v. Glucksberg (traditional rights deeply embedded in American history). Under the Glucksberg standard, the right to arms and the right to self-defense would clearly be protected by PI. Notably, the authors contend that the term ?incorporation? is incorrect. The PI clause directly protects various rights, whether or not those rights are enumerated in the Bill of Rights. Thus, a proper reading of PI would require states to respect the arms rights and self-defense rights of citizens (even if the Second Amendment had never been written) because those rights meet the Glucksberg test. 

Klukowski and his colleague Ken Blackwell have been carrying on a lively op-ed and Internet debate with Shapiro/Blackman. A long blog post today by Shapiro, on Cato@Liberty, contains links to both sides of the discussion.

In McDonald v. Chicago, the brief of the American Civil Rights Union presents the Klukowski approach, while the joint brief of Cato and the Pacific Legal Foundation presents the Shapiro/Blackman/Sandefur theory. (All McDonald briefs can be read here.)

In early January, I will be doing a podcast interview of Shapiro. As many readers know, Shapiro is Cato?s Senior Fellow in Constitutional Studies, and is Editor-in-Chief of annual Cato Supreme Court Review; I am an Associate Policy Analyst with Cato. Commenters are welcome to suggest questions for the podcast. It would be appreciated if every would-be commenter read at least one of the aforesaid articles before commenting. This will help the comments section advance the discussion, rather than merely retreading familiar arguments.

Full post as published by The Volokh Conspiracy on December 21, 2009 (boomark / email).