Constitutional Law

Group Urges Federal Court To Revive Privileges or Immunities Clause

In a seemingly surprising move, the progressive Constitutional Accountability Center (CAC) has urged a federal appeals court to find that the Constitution protects an individual right to bear arms from state infringement. The group, in a Text & History Blog post, however, notes that the only argument it makes centers on reviving the Fourteenth Amendment’s Privileges or Immunities Clause. The case before the 7th U.S. Circuit Court of Appeals involves appeals of lower federal court decisions that the 14th Amendment does not protect the individual right to bear arms from state laws or actions regulating guns. CAC argues in its brief filed on behalf of leading constitutional scholars, like Yale Law School’s Jack Balkin, that the Privileges or Immunities Clause should be reconsidered by the Supreme Court as guaranteeing “substantive fundamental rights.” Additionally, the case gives the group a chance to “bolster progressive efforts to ensure protection of a broad range of civil rights guaranteed by the Constitution.”

The group’s brief also “brings to the fore the surprisingly progressive Reconstruction history of the right to bear arms. It shows that the framers of the Fourteenth Amendment sought to constitutionally protect this right against state infringement, in large part because they wanted the newly freed slaves to have the means to protect themselves, their families and their property against well-armed former rebels.”

In an interview with ACS, Doug Kendall, CAC’s founder and president, explained that the Fourteenth Amendment’s Privileges or Immunities Clause was intended to be the Constitution’s pivotal protector of fundamental rights, but was essentially stripped of its meaning by an 1873 Supreme Court ruling. Kendall says it’s long past time for the clause to be returned to its rightful place in constitutional jurisprudence. Video of the interview is available here.

Full post as published by ACS Blog on February 06, 2009 (boomark / email).