By Clark Neily
IJ is poised to help undo one of the worst U.S. Supreme Court decisions of all time and, in so doing, achieve a goal we have worked for every day since we opened our doors in 1991.
First a bit of history: The 14th Amendment was added to the Constitution in 1868 for the specific purpose of forcing Southern states to respect the basic civil rights of all citizens, white and black. At the heart of the Amendment was its command, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
Just five years later, the Supreme Court all but read that language out of the 14th Amendment in the Slaughter-House Cases, where the question was whether butchers had the right to earn a living free from government-sponsored monopolies. The Supreme Court not only rejected that claim but went out of its way to render the Privileges or Immunities Clause a practical nullity by construing it as protecting only a relatively trivial set of “national” rights like access to navigable waterways.
In the face of subsequent outrages like Jim Crow, however, the idea that states would be the protectors—rather than the primary violators—of people’s basic civil rights became increasingly absurd. But instead of revisiting its earlier misinterpretation of the Privileges or Immunities Clause, the Supreme Court invented the doctrine of substantive due process and used it to protect a shifting set of rights it deemed “fundamental.”
Fast forward to the present. Today, virtually everyone agrees that Slaughter-House misinterpreted the Privileges or Immunities Clause, and the historical evidence continues to mount. Several U.S. Supreme Court justices have expressed a willingness to revisit the issue “in an appropriate case.” The ideal setting would involve a right that is indisputably fundamental but had somehow lain dormant for so long that the Court would have an essentially blank slate to write upon. The right to keep and bear arms fits the bill perfectly.
As readers of Liberty & Law are well aware, the Supreme Court struck down Washington D.C.’s gun ban last year on Second Amendment grounds in a case conceived within the very halls of the Institute for Justice. But because it involved a federal jurisdiction, Heller left open the question whether the Constitution also protects a right to keep and bear arms against state and local governments. That issue reached the Supreme Court this summer in a pair of cases challenging Chicago’s handgun ban.
Together with the Cato Institute, IJ filed an amicus brief in July urging the Court to take up those cases for the express purpose of overturning Slaughter-House and revisiting the Privileges or Immunities Clause. The history of that provision makes clear that it was intended and understood to prevent states from marginalizing and terrorizing newly freed African-Americans (and their white supporters) by silencing and disarming them, taking away their property, and smothering their economic opportunities. Properly understood, the Privileges or Immunities Clause protects those very rights against violation by state and local governments.
We here at IJ will not rest until the Supreme Court finally honors that purpose.
Clark Neily is an Institute senior attorney.