What does it mean to be a citizen of the United States, constitutionally speaking? When the Supreme Court first considered that question, nearly 140 years ago, the justices decided, in effect, “Not much.”
Now, the Supreme Court is being asked, in the context of a gun rights case, to reconsider the cramped reading of U.S. citizenship announced in one of the court’s most controversial rulings ever. The 5-4 majority in the so-called Slaughterhouse Cases (1873) reduced to a virtual nullity the Fourteenth Amendment’s provision that states could pass no law that “abridges the privileges or immunities of citizens of the United States.”
Gun rights advocates are urging the justices to use the Privileges or Immunities Clause to strike down Chicago’s handgun ban instead of taking a simpler route based merely on “incorporation” against the states of the Second Amendment’s right to keep and bear arms. Libertarian-minded scholars and advocates are cheering that approach, sensing fertile ground for law journal articles as well as the potential for a new panoply of individual rights solidly grounded on constitutional text.
The stakes in that argument may go far beyond gun rights, though how far and in what direction are unclear. Ilya Shapiro, senior fellow in constitutional studies at the libertarian Cato Institute, says reviving the Privileges or Immunities Clause could open a “Pandora’s box” of new rights. Conservatives and liberals alike could invoke the clause to gain recognition for individual rights that their ideological adversaries would oppose.
Most Americans know little about the Privileges or Immunities Clause, even though it appears in the same sentence with the well-known clauses that prohibit the states from violating due process or equal protection. The reason is simple. Four years after ratification of the Fourteenth Amendment, the Supreme Court turned the clause into what the dissenters said was “a vain and idle enactment.”
The court’s ruling in the case upheld a Louisiana law granting a monopoly to a private slaughterhouse in New Orleans. Competing butchers unsuccessfully argued the law abridged a right of livelihood encompassed within the privileges or immunities of U.S. citizenship. For the majority, Justice Samuel F. Miller saw the rights of national citizenship as limited, for example, to the right to travel or to use navigable waterways. A broader view, Miller said, would radically change relations between the state and federal governments and between both these governments and the people.
The present-day critics say the decisions ignored prior rulings and legislative intent. They point to an 1823 ruling by Justice Bushrod Washington that broadly defined similar language in the original Constitution (Art. IV, sec. 2) as encompassing the right to travel, access to court, use of property and other “fundamental” liberties. They also note that the same Congress that sent the Fourteenth Amendment to the states in 1866 for ratification also passed a broad civil rights statute safeguarding a wide array of economic and legal rights for newly freed black Americans.
Defenders of the ruling, less vocal, suggest that the court got it right. Kurt Lash, a professor at Loyola University Law School in Los Angeles, points to floor debate by one of the principal authors of the amendment as emphasizing the distinction between the rights of state versus national citizenship.
Speaking at a program sponsored by the Georgetown Law Journal last fall, Lash also warned of the risk to local self-government of substituting an open-ended use of the Privileges or Immunities Clause for the current, step-by-step incorporation doctrine. “There is good reason to hesitate to jump from incorporated substantive due process to unenumerated privileges and immunities,” Lash said.
When the justices hear arguments on Tuesday (March 2) in McDonald v. Chicago, attorney Alan Gura will be attacking Chicago’s gun bans on both grounds. He will argue that the Second Amendment which applies only to the federal government is incorporated against the states as part of “substantive due process” under the Fourteenth Amendment. But Gura, the lawyer in the court’s 2008 ruling striking down the District of Columbia’s handgun ban, hopes to emphasize the Privileges or Immunities Clause.
Hardly anyone expects Chicago’s gun ban to survive, but the justices’ views on the Privileges or Immunities Clause are mostly impossible to predict. Only Justices John Paul Stevens on the left and Clarence Thomas on the right have written opinions indicating an interest in re-examining the clause.
The likely results of reviving the clause are that much harder to predict. Liberals might argue for a national right to education or health care. Conservatives could try to revive freedom of contract as understood by the pre-New Deal court. And libertarians might push for rights to medical marijuana or assisted suicide.
Shapiro, editor of Cato’s Supreme Court Review, suggests adopting the standard from one of the assisted-suicide cases, Washington v. Glucksberg (1997), and recognize only those rights “deeply rooted in the nation’s history.” Assisted suicide, the court held, was not.
That test tilts toward political conservatives. Public education and health care lack a historical pedigree. But the current court, with its pro-business orientation, might well invoke a laissez-faire view of economic rights to strike down some parts of the modern regulatory state. So the justices’ most important questions and comments on Tuesday may deal not with guns, but with constitutional language all but forgotten for nearly a century and a half.
Postscript. As it turned out, justices across the spectrum appeared disinclined to revive the Privileges or Immunities Clause during the arguments in the case on March 2. For my coverage, see "Justices Set To Enforce Gun Rights" on the CQ Researcher Blog, here.