Friday, February 06, 2009

Professors’ Brief in Seventh Circuit Guns Case Calls for the Restoration of the Privileges or Immunities Clause

Doug Kendall

Back in December, we blogged here that the Supreme Court’s decision in District of Columbia v. Heller would lead to momentous incorporation question, and could open the door to the rejuvenation of the Privileges or Immunities Clause, the text in the Fourteenth Amendment that protects substantive fundamental rights against state infringement.

On Wednesday, Constitutional Accountability Center (CAC) filed a brief with the U.S. Court of Appeals for the Seventh Circuit, in the consolidated cases of McDonald, et al., and National Rifle Association of America, Inc., et al., v. City of Chicago, et al., and Village of Oak Park, arguing that right to keep and bear arms recognized in Heller is “incorporated” against state action via the Privileges or Immunities Clause of the Fourteenth Amendment. CAC’s “friend of the court” brief was filed on behalf of four preeminent constitutional scholars including Balkinization’s very own Jack Balkin.

Our brief echoes CAC’s report, The Gem of the Constitution, which explains that the Privileges or Immunities Clause was intended to be the centerpiece of the Fourteenth Amendment, and the critical constitutional language guaranteeing the fundamental rights of all Americans. In The Gem, we say that “all Americans should cheer a ruling that finally honors some of our Constitution’s most important text and history,” and we are urging the court to make such a ruling in this case.

Our brief also brings to the fore the surprisingly progressive Reconstruction history of the right to bear arms. It shows that the framers of the Fourteenth Amendment sought to constitutionally protect this 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.

(David Gans is Constitutional Accountability Center's Human and Civil Rights Director, Doug Kendall is CAC's President. For more on the progressive force of the Constitution's text and history, visit our blog,

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