ON-Lion Letter
Gun owners in late June rejoiced as the U.S. Supreme Court struck down the city of Chicago's ban on handguns in McDonald v. City of Chicago.  The ruling should be celebrated not just by gun owners, but by everyone who cares about liberty and the unique role played by courts in protecting it under our system of government, the Institute for Justice (IJ) in Arlington, Va., points out. 

For decades, IJ has been among the most-consistent defenders of an engaged judiciary and an appropriately originalist interpretation of the Constitution, including particularly the Privileges or Immunities Clause of the 14th Amendment.  As McDonald makes clear, the right to keep and bear arms is a uniquely American and decidedly fundamental individual right.  That will be the result for which the decision will be remembered and, for many, celebrated.

But McDonald is about much more than just guns.  At its heart, it is a case about liberty.  The Court was deeply divided over whether the Constitution protects a right to own guns from improper interference by state and local governments -- just as District of Columbia v. Heller in 2008 held that the Second Amendment protects such a right against federal interference.  Four justices voted to strike down Chicago's handgun ban, finding a right to keep and bear arms under a doctrine called "substantive due process."  Four disagreed, voting to uphold the gun ban.

The pivotal fifth vote was Justice Clarence Thomas, who noted that, for all the disagreement between the two groups of four Justices, "neither side argues that the meaning they attribute to the Due Process Clause was consistent with public understanding at the time of its ratification."  Justice Thomas agreed that the gun ban should be struck down, but instead proposed "a more straightforward path to this conclusion, one that is more faithful to the Fourteenth Amendment's text and history" -- namely, the 14th Amendment's "Privileges or Immunities Clause."  That Clause states that "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

"The most important takeaway from today's decision is that it remains an open question which provision in the 14th Amendment protects the right to keep and bear arms against state infringement," according to IJ senior attorney Clark Neily, who was one of three attorneys who litigated the 2008 Heller case that struck down the D.C. gun ban.  Neily, who also co-authored IJ's amicus curiae, or "friend-of-the-court," briefs throughout the appellate process in McDonald, explained, "Today’s outcome is a tremendous victory for liberty, and we are pleased that it hinges on Justice Thomas's compelling account of the history and purpose of the 14th Amendment, including the central role of the Privileges or Immunities Clause."

The phrase "privileges or immunities" may be unfamiliar today, but as Justice Thomas's concurrence shows, 19th-century Americans used it synonymously with a term modern Americans know very well:  rights.  After the Civil War, officials throughout the South systematically violated the rights of newly freed blacks and white abolitionists in their states and sought to keep them in abject poverty and terror.  The whole point in amending the Constitution to add the 14th Amendment -- and with it the Privileges or Immunities Clause -- was to end the pervasive culture of oppression and tyranny by state and local governments.  As IJ explained in its amicus brief, two rights the Privileges or Immunities Clause was clearly intended to protect were armed self-defense and economic liberty.

But the Supreme Court essentially wrote the Privileges or Immunities Clause out of the 14th Amendment in an 1873 decision called the Slaughter-House Cases.  The result was predictably disastrous:  those who were politically disenfranchised would continue to be economically marginalized and stripped of any meaningful ability to protect themselves from the vicious reprisals and Klan violence that soon became a shameful hallmark of Reconstruction. 

"When the Institute for Justice was founded almost 20 years ago, it was unthinkable to most people that the Supreme Court would ever revisit the Slaughter-House Cases," IJ co-founder and general counsel Chip Mellor said.  McDonald's "divided opinion shows the enormous distance we have covered since then and sends a strong signal that the Court cannot remain out of step with the original meaning of the Constitution forever." 

The Lynde and Harry Bradley Foundation in Milwaukee substantially supports IJ.
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