an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Has Chicago Gone Too Far In Defending Its Gun Laws?
The question of whether and to what extent state and local gun regulations are constitutionally permissible is a question of the highest importance for both gun control advocates and gun rights supporters—and one that is about to be decided by the Supreme Court. In McDonald v. Chicago, the city of Chicago is defending its gun control measures against a challenge by petitioners who argue that the city’s handgun ban violates their right to keep and bear arms—a right, these petitioners argue, that is protected against state and local government infringement by the Constitution’s 14th Amendment. However one feels about guns, anyone who cares about fundamental rights protection should be wary of the argument the city makes in its brief.
In the city’s attempt to preserve its weapons ban, it proves too much, essentially urging the Supreme Court to find that protection of the Bill of Rights and other fundamental liberties against state infringement has no basis in constitutional text or history, and is instead achieved solely by judicial implication. To make matters worse, Chicago’s brief makes common cause with precedent that has been properly labeled by civil rights leaders as “among the most misdirected in the history of the Court” and celebrates a post-Civil War Court that looked the other way while Jim Crow perpetuated decades of discrimination and violent rights suppression. Accordingly, even gun-control advocates, who might otherwise support the city’s argument in this case, should think twice about selling out substantive rights protection in order to protect gun laws (especially when strong arguments, like those made by the Brady Center and others, can be made in support of most gun restrictions without undercutting the 14th Amendment).
The city’s troubling argument is made in response to the claim that the Privileges or Immunities Clause of the 14th Amendment incorporates against the states the individual right to keep and bear arms that the Supreme Court applied against the federal government in Heller v. District of Columbia. The McDonald petitioners, as well as a number of amici curiae (including a group of ideologically diverse law professors represented by the author and Constitutional Accountability Center), have urged the Court to recognize that the Privileges or Immunities Clause protects substantive fundamental rights, including those enumerated in the Bill of Rights. With respect to the issue of the right to keep and bear arms, our brief argues that the framers of the 14th Amendment sought to constitutionally protect such a right against state infringement in large part because they wanted the newly freed slaves to have the means to protect themselves, their families and their property against well-armed former rebels.
The city resists the force of the privileges or immunities argument by presenting a vision of the 14th Amendment that is dangerously out of step with the Amendment’s text, purpose, and history. In its efforts to present a historical record against incorporation, Chicago portrays section 1 of the Amendment as securing only equality or nondiscrimination by the states, rendering both the Privileges or Immunities Clause and the Due Process Clause dead letters. If true, Chicago’s argument would mean that the Court’s protection of substantive rights under the 14th Amendment (both enumerated and unenumerated) has no basis in constitutional text or history, but is rather is achieved wholly by judicial implication.
This vision of section 1 of the 14th Amendment is not only troubling—it is also entirely incorrect. At the time of ratification, leading proponents and opponents alike of the 14th Amendment understood it to protect substantive, fundamental rights. As scholars such as Akhil Amar and Michael Kent Curtis have shown, the framers of the Amendment acted against a historical backdrop that required them to protect at least the fundamental liberties of the Bill of Rights: they were keenly aware that southern states had been suppressing some of the most precious constitutional rights of both freed slaves and Unionists. Senator Jacob Howard, speaking on behalf of the Joint Committee on Reconstruction, expressly stated that, in addition to certain unenumerated rights, the privileges and immunities of citizenship included “the personal rights guarantied [sic] and secured by the first eight amendments of the Constitution.” (Cong. Globe, 39th Cong., 1st Sess. 2765 (1866)). Because the words “privileges” and “immunities” had been used since the Founding to describe rights and liberties—for example, James Madison referred to “freedom of the press” and “rights of conscience” as the “choicest privileges of the people”—the text of the Privileges or Immunities Clause was a natural way to accomplish substantive rights protection. Even if the Privileges or Immunities Clause continued to be erroneously relegated to the status of constitutional inkblot—courtesy of the Supreme Court’s 1873 Slaughter-House Cases—certainly the 14th Amendment protects substantive liberty in some manner. While the Privileges or Immunities Clause is the most textually and historically accurate source of substantive rights protection, substantive liberty has also been located in the broad sweep of the words of the Due Process Clause (as in Lawrence) as well as in the Citizenship Clause (as in Justice Ginsburg’s dissent in Carhart). There is no suggestion from the modern Court that it views section 1 of the 14th Amendment as a mere non-discrimination provision.
Which is why, perhaps, the city’s brief turns to some of the most thoroughly discredited cases in Supreme Court history: Slaughter-House and Cruikshank. In the Slaughter-House Cases (1873), the Court interpreted the Privileges or Immunities Clause to provide no protection against state or local infringement of constitutional rights, but, as Akhil Amar has noted, “[v]irtually no serious modern scholar—left, right, and center—thinks that this is a plausible reading of the Amendment.” In United States v. Cruikshank (1875), the Court held that the federal government had no power under the 14th Amendment to protect against violations of First and Second Amendment rights in the states, and invalidated the federal criminal convictions of white insurgents who massacred over sixty African Americans who sought to defend against the overthrow of their parish government in Louisiana. The NAACP’s brief filed in support of neither party in McDonald correctly describes these cases as “part of a dreadful chapter in the history of this nation.” Chicago’s repeated deference to these decisions of the post-Civil War Court—beyond merely respecting them as precedent, the city’s brief calls them a “venerated” line of decisions—is disconcerting. As the NAACP points out, in the line of cases initiated by Slaughter-House, “the Court enunciated principles far broader than were necessary to decide the matters at hand, and it too readily struck down Congressional legislation designed to combat discrimination against African Americans after the Civil War, including both the Ku Klux Klan’s reign of terror and the establishment of a reconfigured caste system in the form of the Black Codes and Jim Crow.” (NAACP Br. at 13). In addition, while Chicago asserts that the “Reconstruction-era Court that decided Slaughter-House, Cruikshank, and Edwards was in a uniquely advantageous position to discern the meaning of the Privileges or Immunities Clause,” (Resp. Br. at 60) it overlooks the fact that justices on that Court had sharply differing views on the Clause’s meaning and the project of Reconstruction. Justice Swayne’s dissent in Slaughter-House rebukes Justice Miller’s interpretation of the 14th Amendment, writing that it turned “what was meant for bread into stone” by refusing to accept that the Reconstruction Amendments “trench directly upon the power of the States” and protect against rights-suppression by the States.
Moreover, the justices’ personal experience with the Civil War and the Reconstruction Amendments does not necessarily render their views more perfect, as the city suggests—this personal experience could, indeed, make their views less reliable. Justice Miller, for example, did not support ratification of the Privileges or Immunities Clause and instead supported an alternative version of the 14th Amendment, pressed by President Andrew Johnson, that excluded the privileges or immunities language. See Richard L. Aynes, Constricting the Law of Freedom: Justice Miller, The Fourteenth Amendment, and the Slaughterhouse Cases, 70 Chi.-Kent L. Rev. 627 (1994). While Chicago views 140 years’ distance from these events to be a disadvantage, sometimes the “cold historical record” is preferable to the passions and prejudices of the moment.
Perhaps the city and its lawyers are simply presenting a cramped construction of section 1 of the 14th Amendment and making a deal with the devil on old precedent because they think it is their best shot at winning the privileges or immunities argument. Certainly, that is their prerogative as litigants zealously defending their position. But suggesting that the 14th Amendment was not intended to protect fundamental substantive rights—for example, under the city’s reading of the text and history of the Amendment, states and localities could infringe free speech or free exercise rights so long as they infringed everyone’s rights equally—would seem to undermine the city’s credibility, not help its cause. And those who might otherwise want to support Chicago’s gun control laws should think twice about embracing a particular argument that denies the textual and historical bases for substantive rights protection in the states and joins with post-Civil War decisions whose fatal flaws are illuminated by the light of history and scholarship.
Elizabeth B. Wydra is Chief Counsel of the Constitutional Accountability Center and the co-author of an amicus brief in McDonald v. City of Chicago in support of petitioners. Posted
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