Pandora’s Box and McDonald v. Chicago

June 28th, 2010

In January, Ilya Shapiro and I published an ambitious article titled 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. This article discussed how the Court in McDonald can use the Privileges or Immunities Clause to protect the right to keep and bear arms.  I repeat parts of the introduction, which proved somewhat prescient.

This stark departure in constitutional jurisprudence can be traced back to one seminal case: 2010’s blockbuster McDonald v. Chicago. McDonald asked whether the Second Amendment should be “incorporated” against the states using either the Due Process or the Privileges or Immunities Clause—and the Court’s answer was “yes.” Two justices signed onto a concurring opinion arguing that the Privileges or Immunities Clause was the way to go, and that Slaughter-House should be overturned. One wrote a concurring opinion contend- ing that the Privileges or Immunities Clause does not so much incorporate the Second Amendment as guarantees certain pre-existing substantive rights— among which are the right to keep and bear arms—regardless of whether they appear in the Bill of Rights.

In 2010, these concurring opinions stood as a minor footnote in an important but expected decision that extended the individual Second Amendment rights to the people of the several states. But in the years following McDonald, litigants seized on those seemingly quixotic concurrences, arguing that the Privileges or Immunities Clause protects a variety of unenumerated rights. Following the trend in the law reviews, courts began to adopt these arguments. By 2020, with the High Court’s composition radically changed from that of the early Roberts Court, the seminal moment for privileges or immunities arrived and the land- scape of constitutional law would never be the same.

Back in the present day, the year is 2010. The Court is about to hear argument in McDonald. Tellingly, the Court selected among several cert petitions present- ing the Second Amendment incorporation issue the one that invoked the Privi- leges or Immunities Clause. To wit, the question presented in McDonald v. Chicago asks, “Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.”5 The Court could have simply asked whether the Second Amendment should be incorporated—presumably through the Due Process Clause, as almost all other parts of the Bill of Rights have been. Instead, at least four justices decided to inquire into the Privileges or Immunities Clause. Recognizing this question, the Petitioners, represented by Alan Gura, spent almost all of their brief discussing the Privileges or Immunities Clause.6 Mc- Donald thus presents the strong possibility of restoring the lost Privileges or Immunities Clause—while also preventing The Constitution in 2020’s dys- topia.7

In Saenz v. Roe, Justice Thomas expressed his willingness to revisit the original meaning of the Privileges or Immunities Clause in the “appropriate case.” With the McDonald question presented, the Court has answered Justice Thomas’s call in Saenz, as well as the requests for clarification from the Seventh8 and Ninth Circuits,9 and extended an invitation to reconsider the Fourteenth Amendment. We graciously accept that invitation. This article hum- bly submits that, in light of its question presented, McDonald is the perfect case to reverse the ignominious mistake of The Slaughter-House Cases, begin the journey towards rehabilitating the Privileges or Immunities Clause,10 and thereby protect our most fundamental liberties.11
We were hoping Justice Kennedy would also concur on Privileges or Immunities, so we were wrong there. But we called Thomas’ concurring opinion.
While the Court did not reject the Privileges or Immunities Clause, they did not adopt it:
These six propositions set the stage for McDonald, The Constitution in 2020, and the future of the Privileges or Immunities Clause. If the Court ignores Justice Thomas’s admonition, its “failure to consider these important questions raises the specter that the Privileges or Immunities Clause will become yet another convenient tool for inventing new rights, limited solely by the ‘predilections of those who happen at the time to be Members of this Court.’ ”4 2 1 If the originalists on the Court fail to wrest back the wayward Fourteenth Amendment jurisprudence, Pandora’s Box will not remain sealed for long.
Reviving the Privileges or Immunities Clause can begin the process of aligning the Constitution with notions of protecting our most sacred and funda- mental liberties. Failing to do so now invites an alternative vision of the Constitution that further departs from the original meaning of the Fourteenth Amendment. Now is the time—and McDonald is the case—to advance an originalist framework that enforces the Privileges or Immunities Clause and keeps Pandora’s Box closed.42
In conclusion we wrote:

Seldom does a case present itself to the Supreme Court so ideally suited to restore the original meaning of the Constitution. In 1988, before he was a judge of any kind, Clarence Thomas wrote, “the natural rights and higher law argu- ments [embodied in the Privileges or Immunities Clause] are the best defense of liberty and of limited government. Moreover, without recourse to higher law, we abandon our best defense of judicial review—a judiciary active in defending the Constitution, but judicious in its restraint and moderation.”452 McDonald gives the Court an opportunity to fulfill this higher calling and defend liberty for all.

And seldom does such a case draw support from across the ideological spectrum.453 This consensus, backed by a near-universal academic agreement regarding the meaning of the Privileges or Immunities Clause, provides a unique opportunity to bring the clause back into the forefront of our constitu- tional jurisprudence. By extending the Washington v. Glucksberg framework to recognize rights deeply rooted in our Anglo-American traditions, the provisions of the Bill of Rights would be applied to the states in a way consistent with the original meaning of the Fourteenth Amendment. Through this approach, the Supreme Court can be faithful to the Constitution and thereby keep Pandora’s Box sealed.

Thanks to Justice Thomas, we can all keep the faith in our Constitution a bit longer.