I just finished reading Clark Neily and IJ’s fantastic amicus brief for McDonald.
There’s a lot to praise, but I would like to focus on Section II which begins, “The Fourteenth Amendment Does Not “Incorporate” The Second Amendment—It Protects The Pre-Existing Right To Arms From State And Local Governments.”
That understanding was confirmed in District of Columbia v. Heller,7 which noted that the Second Amendment did not grant but instead “codified a preexisting right” to keep and bear arms. The same is true of the Fourteenth Amendment right to arms: It is not in any way “dependent upon” the Second Amendment for its existence. Instead, the Fourteenth Amendment protects from state interference the same pre-existing right to arms that the Second Amendment “codified” against the federal government. Thus, in seeking to understand the Fourteenth Amendment right to arms, one looks not to the Second Amendment, but to the exact same right noted in Cruikshank and Heller—as it was understood by the Reconstruction-era ratifying public.
While the doctrine of substantive due process has a more substantial pedigree than most of its critics recognize (tracing its roots to “law of the land” provisions that date back to the Magna Carta and are found in many state constitutions today8), it is nevertheless perfectly clear that substantive due process is doing a great deal of work today that the Privileges or Immunities Clause was meant to do. Among the results of that mistake has been to expose the Court’s individual rights jurisprudence to substantial criticism, particularly from people who— unlike those who wrote and ratified the Fourteenth Amendment—would prefer a more limited role for the federal courts in protecting individual liberty.
That redundancy notwithstanding, precision and fidelity to constitutional text require a careful reexamination of the Fourteenth Amendment in order to determine which provision most plausibly protects the “pre-existing” right to keep and bear arms. A candid review of the relevant history leaves no room for doubt—it is the Privileges or Immunities Clause.
Ilya Shapiro and I make a very similar point in our forthcoming article, Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment.
In Part V, we show that, instead of dutifully treating the Second Amendment as it has almost all the other parts of the Bill of Rights, the Court should find the underlying rights to be among the privileges and immunities directly protected by the Fourteenth Amendment. Accordingly, this article is not so much concerned with why the Second Amendment should be incorporated but instead provides the Court a roadmap to protecting the right to keep and bear arms for defense of person and property through the Privileges or Immunities Clause. Indeed, the notion of “incorporation” would have been anachronistic, and considered a constitutional deviation at the time of the Fourteenth Amendment’s ratification. Historical accounts of the ratification debates reveal that the Privileges or Immunities Clause was meant to protect both more and less than the Bill of Rights. Thus reconceptualized, the clause should be viewed not as a mechanical incorporator of the first eight amendments, but rather as a limitation of the power of the states to infringe certain liberties. In 1868, these liberties were referred to as privileges or immunities.
What are these privileges or immunities, and what relationship do they have to the Second Amendment? To resolve this query we answer Justice Thomas’s call in Saenz, and seek to “understand what the framers of the Fourteenth Amendment thought that it meant.” We propose extending the Glucksberg framework for recognizing substantive rights that are deeply rooted in our nation’s history and traditions to understand how privileges or immunities were understood in 1868. By applying the Glucksberg test and adapting Judge Diarmuid O’Scannlain’s opinion in Nordyke v. King,we find that the right to bear arms for the defense of person and property—independent of its enumeration in the Second Amendment—was considered a privilege or immunity of citizenship in 1868.
I hope the Court takes notice of these arguments.