Last week I blogged about an Op-Ed by Ken Klukowski and Ken Blackwell arguing that the Supreme Court should incorporate the Second Amendment through the Privileges or Immunities Clause, but the Court need not overrule Slaughter-House. While the Op-Ed contained several errors, the Amicus Brief filed by Ken Klukowski and Peter Ferrara on behalf of the American Civil Rights Union provides a much for thoughtful explanation. For my views on this topic, see Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States co-authored by Ilya Shapiro and myself.
The Fourteenth Amendment and the Privileges or Immunities Clause are uncharted territory. Because this area is so new, it is very important to understand what all the different arguments are on all sides of the issue. In this post, I consider the ACRU argument, as well as Ken’s law review article, Citizen Gun Rights: Incorporating the Second Amendment Through the Privileges or Immunities Clause. In sum, I find the arguments to be unpersuasive for four major reasons. This is a very long post, so more after the jump.