Recognition of Unenumerated Rights, Washington v. Glucksberg, and McDonald v. Chicago

January 7th, 2010

I previously blogged about the City of Chicago’s Respondent brief in McDonald v. Chicago.  The respondents do make one argument, that I think needs to be further addressed.

On page 50, respondent writes:

Thus, petitioners’ argument would require this Court to sort out which unenumerated and previously unrecognized rights are protected by the Privileges or Immunities Clause.

This is exactly the question that Ilya and I aim to answer in our forthcoming article.  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 (pp. 115-144).

We propose the Court extends the test from Washington v. Glucksberg to sort out previously unrecognized unenumerated rights.  Following the 2 prong test from Glucksberg, the right to keep and bear arms is (1) deeply rooted in our nation’s history and traditions, and (2) can be clearly defined (see the numerous statements about the importance of bearing arms, and contemporaneous references in the Freemen Bureau Act, Civil Rights Act, etc)

The majority of the Supreme Court, liberal and conservative Justices alike, have endorsed Glucksberg. SDP in many ways mirrors what P or I should do. No need to reinvent the wheel here. Stick with what SCOTUS, and the lower courts, know.

The current Supreme Court test for recognizing unenumerated right is Glucksberg.  Glucksberg is more accepted than the “implicit in the concept of ordered liberty” test.  If the Court ventures into this area in McDonald, this is the test the Court should apply.

Curiously, the respondent fails to make any mention of the Glucksberg test (they include it in a footnote in passing on an unrelated topic). This is even more odd in light of the fact that in Nordkye v. King, Judge O’Scannlain provided a lengthy explication of how Glucksberg applies.