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Fourteenth Amendment Shootout at the Supreme Court

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.