Fourteenth Amendment Shootout at the Supreme Court

My, how the world has changed since 1990! The forces of gun control were on the advance everywhere — and, to be blunt, there seemed little prospect that the courts would stand in the way of either the federal or state governments. While the historical evidence that the Second Amendment protects an individual right “to keep and bear arms” is very strong, courts didn’t much care.

The Los Angeles Times has long been a supporter of the most absurdly restrictive gun control laws. This is no surprise; Los Angeles has a huge gang problem. The only realistic alternative to gun control is to fix the underlying cultural problems behind the gang problem — and that wouldn’t be very multicultural, would it? I therefore read this October 6, 2009, Los Angeles Times editorial with an enormously wide grin on my face. The best way to describe its contents is: “Please, be gentle with me. I won’t put up a fight.”

As the editorial explains, for about eighty years now, the Supreme Court has been imposing many (but not all) of the rights contained in the Bill of Rights onto the states. They have done so by arguing that the Fourteenth Amendment’s due process clause requires the states to recognize certain fundamental human rights that all persons enjoy. This method is called “selective incorporation.” It’s actually cherry-picking; the Court has identified certain rights that it considers so fundamental that the states must abide by them. Some of these are rights that are contained in the Bill of Rights (freedom of speech, freedom of religion, freedom from warrantless searches, freedom from cruel and unusual punishment). Others are rights that not only aren’t written down, but that the authors of the Bill of Rights — and of the Fourteenth Amendment — would have rejected completely (freedom to collect welfare without meeting residency requirements, freedom to engage in sodomy). Selective incorporation has left out the Second Amendment and the right to grand jury indictment, for example.

The evidence is reasonably clear that the authors of the Fourteenth Amendment understood that it would impose the full Bill of Rights onto the states — not through the due process clause, but through the provision requiring that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The Supreme Court effectively negated this privileges-or-immunities clause in The Slaughter-house Cases (1873). For a few years thereafter, the Court found various excuses to avoid recognizing the privileges-or-immunities clause in cases such as U.S. v. Cruikshank (1876), where to do so would have meant punishing Klansmen for mass murder in the Colfax Massacre.

Here’s a chance to fix a historical mistake. The Supreme Court, in the gun control lawsuit against Chicago, is going to be deciding whether the Second Amendment is incorporated against the states — and it will also be deciding whether incorporation is through privileges or immunities, or through the due process clause.

From the standpoint of gun rights, it doesn’t much matter which theory the Court uses. There are only a few laws around the country that discriminate against permanent resident non-citizens (usually in the issuance of concealed carry licenses). I confess, if the Court incorporates the Second Amendment, I would prefer that it do so through privileges or immunities, both because it is historically correct and because there would be no question about whether illegal immigrants have a right to be armed. (If the Court incorporates the Second Amendment through the due process clause, someone, somewhere, is going to be making the argument that illegal aliens enjoy this right, too.)

Now here’s where this question gets really weird. The due process clause protects the right of persons — including artificial persons, such as corporations, as the Court ruled in Grosjean v. American Press Co. (1936). The privileges-or-immunities clause protects the right of citizens (a substantially narrower group). We may see a rather odd collection of anti-capitalism sorts wake up and decide that if the Supreme Court rules that the Bill of Rights is incorporated through the privileges-or-immunities clause, then a variety of decisions that have recognized the rights of corporations under the due process clause can be revisited. Or the Supreme Court might do as it did in First National Bank of Boston v. Bellotti (1978), where it decided that regardless of whether a corporation as a “person” had the right of free speech, those who could be listening had a right to hear a corporation speak.

This could be a momentous decision. I can understand why the Supreme Court might look at the mess it will create if it admits that all of these previous selective incorporation decisions were wrongly made — because so much of our current society is based on these decisions. Perhaps they will decide to incorporate the Second Amendment through privileges or immunities and pretend that the results are pretty much the same either way. The results, however, will provoke a firestorm of suits seeking clarification, of that I can assure you.