Nation EPR The Right to Bear Arms: McDonald v. Chicago By: Andrew Hull With the monumental decision of D.C. v. Heller being determined by a 5-4 vote in the U.S. Supreme Court, it would seem like the guns rights activists have won their constitutional battle. The District of Columbia’s gun ban was performed in an area under the exclusive governance of the federal government; its overturning indirectly implied that the federal government is constitutionally forbidden to abridge an individual’s right to bear arms. What about a city like Chicago, though? The question now facing the Supreme Court in the case McDonald v. Chicago, concerning the constitutionality of a handgun ban in Chicago, is whether or not the Second Amendment applies to the states. It looks like the proponents of an individual’s right to bear arms 16 • EPR Winter 09-10 •
have only finished half the race. Although the Second Amendment as first drafted does not protect the right from the states, there can be a constitutional argument made for the right being indeed saved from the states. The argument is known “incorporation” and it finds its basis in two different parts of the 14th Amendment: the Privileges or Immunities Clause (§1, Cl. 2) and the adjacent Due Process Clause (§1, Cl. 3). Incorporation, as broadly defined, is the extension of the rights written in the Bill of Rights against the states. It would appear that the Privileges or Immunities Clause would be the best basis for this incorporation, as it says, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” It seems to imply the barring of creating a law that abridges the rights of a citizen as found in the Bill of Rights. This view is probably given its best defense by Justice Hugo Black in his dissenting opinion in Adamson v. California in which he includes an exhaustive list of excerpts from congressional debate during the drafting the 14th Amendment supporting this interpretation. This robust sounding clause, however, has been curiously dormant in constitutional law for most of the clause’s existence. In 1873, the Supreme Court dispelled this reading of §1, Cl. 2. “Slaughterhouse Cases”. Instead, the Supreme Court has preferred to use the much more controversial and legally complex Due Process Clause, which reads, “…nor shall any State deprive any person of life, liberty, or property, without due process of law.” The phrase “due process” has a long and complex history stretching back to the Magna Carta. Without becoming too bogged down in legal history, it means that a legal system has to respect certain rights of a person while prosecuting them for a crime. The easiest example of due process is that in order to be convicted of a crime, a person has to be found guilty by a jury of his or her peers. The Supreme Court has used this clause to selectively incorporate the Bill of Rights against the states. Rather than broadly applying the Bill of Rights to the states, like the Supreme Court would have done under the Immunities Clause, it instead decides each of the individual rights contained in the first ten amendments on a case-by-case basis. In order for a right to be incorporated, the right has to be “implicit in the concept of ordered liberty,” a “fundamental right,” according to the Supreme Court’s ruling in the 1968 case Duncan v. Louisiana. Until this point, most of the rights in the Bill of Rights have been considered “fundamental rights” EPR and have been applied to states through a long patchwork of cases. The exception is the Second Amendment, which is why McDonald v. Chicago is such an important case. McDonald v. Chicago is actually one of several cases that were spawned post-Heller as a test case for incorporation. Other similar cases include NRA v. Chicago, Guy Montag Doe v. San Francisco Housing Authority, Nordyke v. King, and Maloney v. Rice. What makes McDonald unique as well as a potentially landmark case is that it explicitly calls for the overturning of the Slaughterhouse Cases and the restoration of the “full meaning” of the Privileges or Immunities Clause. McDonald’s Petition for Certiorari states: More critically, owing to the Fourteenth Amendment’s plain text, original purpose, and original public meaning, this Court should also hold the Second Amendment is incorporated through the Fourteenth Amendment’s Privileges or Immunities Clause. Although consensus regarding this provision’s full meaning will likely remain elusive, there is now near uniform agreement that this Court’s decision in The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), which all but eviscerated the Privileges or Immunities Clause, was wrongly decided. Given the profound scope of Slaughter-House’s error, and the confusion it has spawned in Fourteenth Amendment jurisprudence, overruling Slaughter-House remains imperative. The unique interplay between the Second and Fourteenth Amendments makes this the ideal case in which to do so (17). Ruling in favor of McDonald, then, could not only incorporate the Second Amendment to the states, but also overturn the Slaughterhouse Cases. This would be a reversal of monumental proportions because the Privileges and Immunities Clause could then be used, with one broad stroke, to incorporate the entirety of the first eight amendments of the Bill of Rights. The wish of Black, who championed this totalistic or “mechanical” incorporation, would finally be fulfilled. The process of selective incorporation, which uses rather vague and undemanding criteria, would become obsolete, as a right would not have to be considered “fundamental” to qualify for incorporation. This ramification has resulted in the support of many liberal legal theorists, who have interests in other rights aside from those included in the Second Amendment. The reevaluation, though perhaps not the rejuvenation that Black supported, of the Privileges and Immunities Clause also has the support of many conservatives, most notably Justice Clarence Thomas who lamented on the state of the clause in his dissent in Saenz v. Roe: “ As The Chief Justice points out, ante at 1, it comes as quite a surprise that the majority relies on the Privileges or Immunities Clause at all in this case. That is because, as I have explained supra, at 1-2, The Slaughter-House Cases sapped • EPR Winter 09-10 • the Clause of any meaning. … Because I believe that the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of our Fourteenth Amendment jurisprudence, I would be open to reevaluating its meaning in an appropriate case.” An issue remains, however, if McDonald were to win his case: the status of the Fourteenth Amendment’s Due Process clause, the clause originally used to facilitate incorporation. Both the Immunities and the Due Process clauses would then be interpreted to protect the rights of people against the states, with the Immunities Clause being far stronger in this case. The Due Process clause would then seem to be redundant and utterly useless given the Due Process clause in the Fifth Amendment, but this may not be the case. While the Fifth Amendment’s Due Process clause protects the same abstract right as the 14th Amendment’s Due Process Clause, the Fifth Amendment’s meaning would be restricted when incorporated through the Privileges and Immunities Clause to protecting only citizens. This is because the objects protected in the Immunities Clause are “citizens,” not the broader noun “persons” that is in both of the Due Process Clauses. The Fourteenth Amendment’s Due Process Clause, however, protects all persons’ due process rights explicitly against the states. This makes it broader than the Fifth Amendment’s Due Process Clause as incorporated through the Immunities Clause. It then appears that a ruling in favor of McDonald would accomplish several constitutional progressions. The Supreme Court would first, with even the narrowest ruling, finally incorporate the Second Amendment and overturn a century and a half of contradicting case law. At its most ambitious, it would restore the Privileges and Immunities Clause from the constitutional gutting it received during the Slaughterhouse Cases. This would result in the automatic incorporation of not only the Second Amendment, but also all other rights that have not yet been formally incorporated: The right to petition for redress of grievances in the First Amendment, the right to indictment by a grand jury in the Fifth Amendment, the protection against excessive bails and fines in the Eighth Amendment, and the entirety of the Third and Seventh Amendments. McDonald v. Chicago is a case that, while at first glance is simply the next constitutional step after the individual rights reading of the Second Amendment in D.C. v. Heller. However, it could also be something of a new beginning in the Supreme Court’s jurisprudence. Black’s vision for the Privileges and Immunities clause, more than 60 years in the making, may finally be realized through Mc- Donald v. Chicago. EPR Andrew Hull is a sophomore in the College and a double major in Philosophy and Classical Civilization 17
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