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History lesson on 2nd Amendment’s reach

UPDATE Tuesday a.m.  The National Rifle Association on Monday filed a brief supporting the Chicagoans’ challenge.  It can be downloaded here.  The NRA has been pursuing a similar challenge (pending petition, 08-1497).  It is in the McDonald case as a respondent supporting the petitioners.  The following post has also been updated, including a change in the date for filing the city of Chicago’s merits brief.


With a strong plea to revive the Constitution’s ill-fated Privileges or Immunities Clause, lawyers for four Chicagoans told the Supreme Court on Monday that history shows clearly that the Second Amendment’s protection of personal gun rights applies to state and local laws as fully as to those at the federal level.  The brief is dominated by a wide-ranging survey of the meaning and origins of the  privileges clause of the Fourteenth Amendment, only seven pages of the 73-page brief are devoted to another provision of that Amendment: the Due Process Clause.  (The Court presumably is more familiar with the Due Process Clause, repeatedly litigated for decades even as the Privileges or Immunities Clause has lain largely dormant.)

In a bold thrust, the attorneys for the challengers to Chicago’s strict handgun ban asked the Court to strike down three of its prior rulings: the Slaughterhouse Cases in 1873 — the ruling that made the privileges clause a nullity — and two decisions limiting the Second Amendment to a restriction only on federal laws: U.S. v. Cruikshank in 1876 and Presser v. Illinois in 1886.  “Faced with a clear conflict between precedent and the Constitution, this Court should uphold the Constitution,” the brief argued.

The Slaughterhouse precedent, “and its unavoidable progency, Cruikshank and Presser,” the brief said, “established that the States could continue to violate virtually all privileges and immunities of American citizens, including those codified in the Bill of Rights, notwithstanding [the Fourteenth Amendment] Section One’s clear textual command to the contrary.”  Those three rulings, it added, “lack legitmacy.”

“When this Court first passed on the Fourteenth Amendment, it announced a theory of the Privileges or Immunities Clause never apparently considered by anyone during the framing and ratification process, standing diametrically opposed to every statement of intent and understanding related to the Privileges or Immunities Clause,” the document asserted.  “With this decision, civil rights inhering naturally in individuals, and which predate the Constitution, would be left to the States’ protection.”

The phrase “privileges or immunities,” the McDonald counsel said, had long been synonymous with rights in general, but acquired “additional heft” with an 1823 court ruling interpreting that clause to have a sweeping breadth.  That was the decision in Corfield v. Coryell, which Supreme Court Justice Bushrod Washington wrote while “riding circuit” on a lower court in Pennsylvania.

“The Fourteenth Amendment reflected the broad common usage of ‘privileges or immunities,’ including the pre-existent natural rights of the sort identified in Corfield and the personal rights guaranteed by the Bill of Rights,” according to the filing.  And yet, it noted, the privileges clause “was all but erased from the Constitution” in the Slaughterhouse ruling in 1873.

Slaughterhouse transformed the Framers’ broad protection of individual liberty, commonly understood, into a clause securing only the most obscure rights, rarely exercised by any American and with which the States could not ordinarily interfere even had they the will to do so.”

The brief sought to trace the “privileges or immunities” concept back to James Madison in his original articulation of what would become the Bill of Rights, then followed it through the pre-Civil War period, and then through the drafting and ratifying process after the Civil War had ended and the Union moved to codify its victory over the Confederacy and its social structure.

“In sum,” the brief said, “a straight line of popular understanding of ‘privileges’ and ‘immunities’ runs from Madison through Corfield, leading abolitionists, Dred Scott, and the Fourteenth Amendment’s Framers.”  The clause, it contended, embraces natural, fundamental rights, as well as “the rights codified in the first eight amendments” — including, of course, the Second.

The document’s discussion of the Due Process argument focused on the fact that that provision “has incorporated virtually all other enumerated rights,” and contended that there is no reason to make the Second Amendment an exception.

The city of Chicago has 30 days, under the Court’s Rules, to file its merits brief. That time can be extended, but the Rules say that such an extension at the merits stage “is not favored.”  UPDATE Tuesday a.m.  The city, in fact, has obtained an extension to file its brief — until Dec. 30, a two-week extension.