Due Process as Pandora’s Box

The Washington Times carried an opinion piece last month by two social conservatives concerned about the upcoming McDonald v. Chicago decision. If you have been following this issue, you know that the team representing Otis McDonald seeks to have the Supreme Court recognize that the Fourteenth Amendment imposes the Second Amendment on the states. So why are social conservatives (who are generally pro-gun) concerned? Their concern is this: what theory will the Court use? To quote Ken Klukowski and Ken Blackwell:

Many have heard about the historic gun rights case going to the Supreme Court. Fewer have heard that this is also a major case for businesses and family values.  It could lead to anything from court-ordered ObamaCare to same-sex marriage. This is the biggest case of the year, and everyone has a stake in it.

There are three major provisions of the Fourteenth Amendment with respect to imposing the Bill of Rights onto the states (also known as “incorporation”): the “privileges or immunities” clause (P or I), the “due process” clause (DPC), and the “equal protection" clause (EPC).

The historical evidence strongly suggests that the Fourteenth Amendment was understood by both supporters and opponents as incorporating the entire first eight amendments of the Bill of Rights onto the states through the privileges or immunities clause.  The purpose of the due process clause was to make sure that before the southern states deprived blacks and white Republicans of life, liberty, or property, the governments would have to go through something recognizably like a trial. The purpose of the equal protection clause was to make sure that whatever laws the southern states passed applied equally to everyone. If a southern state required blacks to make annual labor contracts (as some states had done immediately after the Civil War), then the law had to apply to whites as well.

In 1873, the Supreme Court handed down a bad decision known as the Slaughterhouse Cases, in which it refused to recognize that the privileges or immunities clause incorporated the protections of the Bill of Rights. A few years later, in U.S. v. Cruikshank (1875), the Court continued down the same line, overturning a conviction of Klansmen who had murdered dozens of freedmen. (Gun control advocates love to cite Cruikshank because that Court ruled that the Second Amendment didn’t protect individuals from state gun control laws.)