What’s the difference between incorporating the 2nd Amendment through the Due Process Clause and extending the right to keep and bear arms to the states through the Privileges or Immunities Clause?
In the lead-up to McDonald v. Chicago, this is a huge distinction that hasn’t been clarified.
In Alan Gura’s petitioners brief, compare his discussion of the Privileges or Immunities Clause:
“The right to keep and bear arms is among the privileges or immunities of American citizenship that states may not abridge”
With his discussion of the Due Process Clause:
“The second amendment right to keep and bear arms is incorporated as against the states by the fourteenth amendment’s due process clause.”
Alan is quite careful in how he crafts his argument. Nowhere, does he say that the Second Amendment should be incorporated through the Privileges or Immunities Clause. In fact, the word “incorporation” does not appear once in the entire section devoted to P/I.
So what’s the difference?
As we argue on pp. 74-75 of our article, Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms “incorporation” through the Privileges or Immunities Clause is a Constitutional malaproprism.
“Incorporation” is a term of art not utilized during the ratification debates of the Fourteenth Amendment. Although our research found that the term was used in several Court opinions, mostly dissents, following Reconstruction, the term entered the Supreme Court’s lexicon over several decades in the early 20th century. In 1868, when the Fourteenth Amendment was ratified, the term “incorporation” as we know it today would have been seen as a misnomer, a constitutional malaproprism, a misunderstanding of how the Fourteenth Amendment protected against state oppressions. Indeed, the concept of “incorporation” was anachronistically inserted into our Constitutional jurisprudence decades after the ratification of the Fourteenth Amendment,. To the extent the Reconstruction Congress sought to limit the power of the states to infringe certain rights, the Fourteenth Amendment did not merely copy the 1791 understanding of the first eight amendments in the Bill of Rights. Instead, it sought to protect certain liberties held by the people, the privileges or immunities, from being infringed by the states. In the words of Professor Amar, “Section I [of the Fourteenth Amendment] means not just more than mechanical incorporation but also less.”
In light of Professor Amar’s conception of the Privileges or Immunities Clause as applying “both more and less” of the freedoms in the Bill of Rights to the states, it is misleading to view the Privileges or Immunities Clause as a mechanical device that injects federal constitutional provisions into state law. Instead, the Privileges or Immunities Clause places a limitation on what liberties the states could infringe. Simply put, the Clause may indirectly “incorporate” rights, but its actual, uncontroverted purpose is to prevent states from abridging privileges or immunities. While these privileges or immunities include most of the rights in the first eight amendments, there are certain rights beyond the printed page of the Constitution—those deeply rooted in the Anglo-American tradition—that also deserve protection.
That is why Gura phrased his question presented his argument as “The right to keep and bear arms is among the privileges or immunities of American citizenship that states may not abridge.” There is no discussion of incorporation.
So if the Privileges or Immunities Clause does not “incorporate” rights, how does it work? Mechanically inserting the Second Amendment, as it was understood in 1791, into the Privileges or Immunities Clause, as it was understood in 1868, is akin to shoving a video cassette into a DVD player. Rather, the Court should consider Originalism at the right time. (pp. 82-85).
The Privileges or Immunities Clause is not a magic box. An amendment, applying only to the federal government, does not enter through one side and then exit through the other side, applying to the states in the same fashion. Incorporation as we know it today would have seemed a quixotic and clumsy concept to the framers of the Fourteenth Amendment. In 1868, the Privileges or Immunities Clause meant what it said: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The plain language mentions nothing about incorporation or anything else to do with the Bill of Rights. What it does mention, however, is vital: States can no longer infringe certain rights.
The Privileges or Immunities Clause on its face prevents the states from making laws abridging the privileges or immunities of citizens of the United States. The question of how these rights are to be protected against the federal government remains unresolved for another day. The term privileges or immunities, however, was synonymous with certain liberties, both more and less than those included in the Bill of Rights.
Rather than viewing the Privileges or Immunities Clause as an incorporator, we should thus see it as a check on the power of the states. That was Reconstruction’s primary goal—to prevent states from infringing on individual liberties. According to Professor Amar, “1860s Republicans sought not to incorporate clauses but to apply (refined) rights against the states.” Before the Civil War, states could operate virtually unfettered within their sovereign domain. Not so after Reconstruction.
And so we turn to the question presented in McDonald: “Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.” This question is inartfully drafted.
The Second Amendment simply cannot be incorporated into the Privileges or Immunities Clause. This approach is akin to trying to “incorporate” a VHS videocassette into a DVD Player. The two recordings have similarities, and accomplish similar ends, but work differently.
That is, prohibiting the states from infringing the privileges or immunities of citizens is conceptually different from the incorporation of rights to the states through the Due Process Clause. If a right listed in the Bill of Rights is a privilege or immunity, the state cannot abridge it. But this process does not “incorporate” the amendment into the clause. Instead, the personal right, the liberty derived from the common-law tradition—and not the amendment as ratified in 1791—is protected against infringement. The Privileges or Immunities Clause is about individual liberty, not a jot-for-jot incorporation as Justice Black would have had it.
The Second Amendment, like the VHS cassette, represents an older expression of the right to keep and bear arms, reflecting a different time and a different concern. In contrast, the right of self-defense as understood during Reconstruction, like the DVD, is a more recent articulation of the liberty to defend one’s person and property. What should be applied to the states is the common-law notion of the right of self defense and the right to bear arms. This vision of the Privileges or Immunities Clause reflects the original understanding of the Fourteenth Amendment, and is faithful to the liberties the 39th Congress sought to protect.
If the Supreme Court decides to revisit the Privileges or Immunities Clause, the correct inquiry is not whether the Second Amendment should be incorporated through the Privileges or Immunities Clause. Rather, the correct question is whether the right to keep and bear arms should be extended to the states.