Check out Alan Gura’s site for a listing of all amici filed in McDonald.
In this post, I’ll discuss the brief of Constitutional Law Professors and the Constitutional Accountability Center.
This is quite a curious brief, because it joins such divergent minds as Richard Aynes and Jack Balkin with Randy Barnett and Steven Calabresi. Privileges or Immunities and individual rights encourages odd bed fellows.
This brief heavily focuses on original public meaning originalism to establish that in 1866 the privileges or immunities were established terms of art that protected substantive fundamental rights, including, but not limited to, those in the Bill of Rights.
The Privileges or Immunities Clause was written and ratified to secure the substantive liberties protected by the Bill of Rights, as well as other fundamental rights. By 1866, the words “privileges” and “immunities” were commonly used to refer to core, inalienable rights, including those set out in the Bill of Rights. History shows that leading proponents and opponents alike of the Fourteenth Amendment understood the words of the Clause to protect substantive fundamental rights, including the rights enumerated in the Constitution and Bill of Rights.
The problems motivating the framers of the Privileges or Immunities Clause—for example, deprivations of the right to free speech, the right to bear arms, and other denials of liberty and personal security in the southern states—are strong evidence that the Clause was drafted to protect fundamental rights against state infringement. As discussed in the next sections, the public meaning of the words “privileges” and “immunities” and the floor debates over the Amendment confirm the intent to use the Clause to protect substantive rights in the States.
The brief proceeds to discuss statements made on the floor during the Ratification debates, and how these discussions would have been understood at the time. The brief also argues that “The Wording Of The Privileges Or Immunities Clause Is Broader Than The Privileges And Immunities Clause Of Article IV.”
While the Privileges or Immunities Clause in the Fourteenth Amendment draws on the public meaning of “privileges” and “immunities” in Article IV, discussed, supra, in Section I.B, its wording is more expansive in at least two respectsNext, the brief argues that the Privileges or Immunities Clause includes an individual right to bear arms As was shown in Section I, supra, the public meaning of “privileges or immunities of citizens of the United States” included the “personal rights guarantied and secured by the first eight amendments of the Constitution,” such as the individual “right to keep and bear arms.” Cong. Globe, 39th Cong., 1st Sess. 2765 (1866) (Sen. Howard).
Because state statutes disarming freedmen—as well as legislative restrictions on other fundamental rights—were considered to be the South’s post-war attempt to re-institutionalize the system of slavery in a different guise, Congress
initially thought itself justified in exercising its Thirteenth Amendment powers to enact the Civil Rights Act of 1866. If slavery is the opposite of liberty, then the Thirteenth Amendment empowered Congress to police restrictions on fundamental liberties that amounted to a partial imposition of slavery.
The comment about slavery being the opposite of liberty is a point Barnett has made before in a few lectures. It is a really deep and profound point that should not be glossed over.
Next the brief discusses precedent and stare decisis and concludes that Slaughterhouse is wrong, has been undermined by subsequent application of most of the Bil of Rights to the states, and should be overturned
This Court should follow the text, history, and original public meaning of the Privileges or Immunities Clause of the Fourteenth Amendment to protect an individual right to bear arms. Previous decisions notwithstanding, it is never too late to adhere to the text of the Constitution.Slaughter-House And Its Progeny Were Wrong As A Matter Of Text And History And Have Been Completely Undermined By This Court’s Subsequent Application Of Most Of The Bill Of Rights To The States.
Next the brief addresses an important issue, and argues that Reviving The Privileges Or Immunities Clause Will Not Prejudice The Constitutional Rights And Liberties Of Noncitizens. Amici believe the existing rights of noncitizens are fully protected by the Due Process and Equal Protection Clauses. State governments are required to provide noncitizens with a full range of procedural protections and need a constitutionally permissible reason for either restricting the liberties of noncitizens or discriminating against any “person” with regard to the fundamental rights accorded to citizens.
I’m not quite sure how persuasive I find this section from a strictly textual perspective, but practically it won’t make a difference. The Court would not exclude non-citizens from this right, regardless of the history.
On the whole, a fantastic brief. I hope the Court takes note.
For my thoughts on McDonald, see Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendmen