Getting the 14th Amendment Right

The Chicago gun case and the fight for economic liberty

Damon W. Root | February 26, 2010

When the Supreme Court hears oral arguments on March 2, 2010 in the landmark gun rights case McDonald v. Chicago, the Second Amendment won’t be the only thing on the justices’ minds. That’s because when it comes to protecting constitutional rights from the depredations of state and local governments, the Court must obey the 14th Amendment, which commands: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.”

McDonald will therefore turn on whether the right to keep and bear arms applies to Chicago via the 14th Amendment’s Privileges or Immunities Clause or via its Due Process Clause. That distinction matters because the Privileges or Immunities Clause has been a dead letter since the controversial Slaughterhouse Cases of 1873, which gutted the clause while upholding a state-sanctioned slaughterhouse monopoly in Louisiana. And despite overwhelming historical evidence that the Privileges or Immunities Clause was specifically written and ratified after the Civil War in order to secure individual rights against state abuse—including the right to armed self-defense—Slaughterhouse has never been overturned.

So the stakes in McDonald are high indeed. And they aren’t just limited to gun rights.

Consider this: Among the legal experts lining up in support of overturning Slaughterhouse and reviving the Privileges or Immunities Clause is liberal law professor Akhil Amar of Yale University. Nobody’s idea of a gun nut, Amar is a supporter of progressive politics. And in his opinion, so were the authors of the Privileges or Immunities Clause. “The framers of the 14th Amendment were radical redistributionists,” Amar told The Wall Street Journal. “The 13th Amendment frees the slaves and there’s no compensation. It’s the biggest redistribution of property in history.” Under this interpretation, the privileges or immunities of citizenship might include the right to health care, to a living wage, or to some other welfare right fancied by today’s progressive activists.

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