A friend on a liberty-minded mailing list posed this question:
Can one of the lawyers on this list give us some color on the Supreme Court extending [the] 2nd [A]mendment to the states on the basis of due process versus on the basis of privileges and immunities?
As far as I know, there are no lawyers on the list, but from common understanding, he meant to pose the question to anyone affiliated with the law, so as a law student, I answered with the following response (with minor edits).
Section 1 of Amendment XIV reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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; nor deny to any person within its jurisdiction the equal protection of the laws.
(Emphasis added).
The Notion of the Common Good in the Revolutionary Era
The Federalists and Anti-federalists disagreed about a great many things as they pertained to governance in the new nation after England signed its treaty with the united States. A common desire, however, was that government power, where present, should only be used for “the common good.” There were philosophical disagreements about what the common good was, but Paine-ites and Madisonians would agree that government working for “partial or private interests” was clearly violative of natural rights. For example, taxes might be raised to build a town hall to allow communal participation in government: and, as such, would have been considered a common good. However, if taxes were raised to subsidize farmers, they would have been considered antithetical to good governance as working for partial or private interests.
As such, the courts were wont to view legislation through the prism of the common good-partial or private interests dichotomy all the way through 1937.
Slaughterhouse Cases
In the early 1870s, Louisiana had chartered a corporation to create a monopoly over the butchering industry in the in the greater New Orleans area. Butchers were required under state law to subscribe to the corporation in some manner in order to actually do their work. A group of them challenged the law under the newly adopted Amendments XIII, XIV and XV in various cases. The Supreme Court granted certiorari to hear the cases, which over time became collectively known as the Slaughterhouse Cases.
The core of the plaintiff-butchers’ arguments relied on the Privileges or Immunities clause of section 1 of the 14th Amendment. They asserted that Louisiana was restricting their privileges and immunities to work independently in their stock and trade. They further asserted, as a matter of policy, that to allow Louisiana to favor some butchers (the compliant ones) over others (the plaintiffs) was tantamount to favoring partial or private interests over the common good.
From a plain language standpoint, arguing the Privileges or Immunities clause was the most logical, because the butchers believed that they had inalienable privileges and immunities (rights) that had been alienated by Louisiana. This clause and the equal protection clause are the strongest clauses in favor of individual rights in Section 1, because they invoke the idea that certain rights, even if vaguely defined, are unassailable. I’m not even sure the due process clause was considered by the Slaughterhouse plaintiffs, because the due process clause allows for rights to be taken away as long as the process of law is duly followed.
The Court, however, rejected the argument on notions of legislative intent and a very arcanely narrow reading of the phrase “citizens of the United States.” The Court first reasoned that the Amendments were primarily intended to free blacks from slavery. Since the butchers were white and slavery was not at issue, the Court held that the use of the Privileges or Immunities clause was inapposite as they were not contemplated by the purpose of the amendment.
Furthermore, and strangely, the Court also reasoned that the phrase “citizens of the United States” modified the Privileges or Immunities clause by invoking a national interest rather than state interests. That is to say, the Privileges or Immunities clause was only protectionary of a national interest, to wit, a protection against enslavement. The Court ruled that the clause was not applicable to matters of state interest and held that because corporations were creatures and matters of state governments, the Privileges or Immunities clause could not be applied in favor of the butchers, and they lost the appeal.
Incorporation
At jurisprudential issue in the Slaughterhouse Cases was whether rights purportedly guaranteed to individuals by the original Constitution, Congress, or especially the Bill of Rights could be incorporated (enforced) against the states. As putative sovereigns, states were not considered to be bound by most of the rights guaranteed by the Bill of Rights before the Civil War. The federal government could not abridge speech, so it was alleged, but the states could. The federal government could not quarter soldiers in homes during peacetime, but presumably the states could.
Most of the time the distinction was nonexistent, since states governed similarly, at a broad level, to one another and the federal government, but where the issue arose, most Constitutional rights were not incorporated to the states.
The Legacy of the Privileges or Immunities Clause
Because of the narrow reading of the P-I clause of Amendment XIV, it rendered the clause a virtual nullity since 1873. In fact, its inclusion in the Amendment, given the Court’s interpretation, makes it vacuous, because states have rarely, if ever, dared to deny federal rights to their residents. Perhaps the P-I clause might be meaningful again if a state attempted to legislate that no resident could vote in a federal election again. For the most part, though, the clause has been meaningless since 1873. The Supreme Court’s narrow reading of P-I is especially ironic, because the 13th, 14th and 15th Amendments were very clearly ratified to attenuate the despotic power of states over their residents (and in the eyes of some, indirectly grant the federal government more of that despotic power). That is, in narrowing its scope, the Supreme Court likely abrogated the whole reason for including the Privileges or Immunities clause in the 14th Amendment.
Meanwhile, states could establish churches (and did, at least until that went out of vogue in the 1830s), abridge speech, regulate the right to carry and bear arms, disallow jury trials for criminal defendants, force criminals to testify against themselves, etc.
Jurists and lawyers began searching for a way to enforce federally protected guarantees against state intrusion to prevent circumstances as in the above examples from happening. P-I would have been the most logical, but they began to, out of necessity, argue incorporation against the states under the due process clause instead.
Substantive Due Process
Only the law could generate an oxymoron for such an important doctrine, but the theory of substantive due process began to develop more robustly after the Slaughterhouse Cases, likely because the substantive guarantees that would have been affirmed via Privileges or Immunities were lost when the clause was swept into the dust bin of the Supreme Court’s history.
Instead, it began to be argued that Due Process protected not only the literal process of law against arbitrariness and caprice, but that there were inherent substantive guarantees in the notion of due process. One could take away another’s freedom for committing a heinous crime, but one could not abridge the right to a jury trial, period, even if the state purporting to do so had its own sovereignty.
Some argued that process does not include the notion of substance, but the history of the notion of due process belies that argument. Yet, state courts themselves would, even at the time of he country’s founding, adjudicate cases invoking Due Process as equivalent to the Law of the Land, which, for them, included natural rights substantive protections that were implied or not often stated in state constitutions. That is, there was always a substantive component to the interpretation of due process at the state level, so the idea that one could use it at the federal level as against states was novel, but not untied to history.
Over time, one by one the Court began to incorporate rights guaranteed by the Bill of Rights against the states, but even as late as 1908 in a case called Twining v. N.J., the Court held that the Due Process clause did not incorporate the 5th Amendment right against self-incrimination to the states. The Court at this time was still prone to employ a priori natural rights theory instead of looking solely to the text of the law at hand, and so, strangely, it stated that exemption from self-incrimination was not “an immutable principle of justice.”
Later, the Court overruled itself and did incorporate the 5th Amendment to the states.
In another case, Palko v. Conn. (1937), the Court held that free speech was incorporated to the states, but the free exercise of religion was still a state matter and one they could regulate or control.
The cases discussing Substantive Due Process are legion in the Court’s reporters, and the doctrine, while never quite self-consistent, is very well-developed. Over the 20th century, most of the Bill of Rights were incorporated, except for a few hold outs. The 2d Amendment has been one of them.
But, due process has never been a 100% unabashed guarantee of rights. In all cases, the states have the ability to regulate various rights guaranteed as long as there are certain background circumstances present and their is due process. That’s the whole point of the clause. So while the rights are fairly well understood and protected, they are not absolute in the eyes of the Supreme Court. Tests for whether substantive due process is upheld or violated vary greatly from topic to topic:
Economic substantive due process is measured by a deferential reasonableness test.
The Right of Privacy, as implied by the Ninth Amendment, is protected by a test of strict scrutiny.
Abortion rights are protected by a difficult-to-pin-down Undue Burden test.
The Freedom of Association rests on the solidity of the evaluation as to whether the association on a continuum is like a marriage versus like a business enterprise.
Freedom of Speech has many different tests depending on the type of speech involved.
Arguments Before the Court Re: The Second Amendment in McDonald v. Chicago
Alan Gura, the attorney for McDonald, attempted to argue Privileges or Immunities again. Why? Because if he could convince the Court to resuscitate the doctrine, it would have, conceivably, been a stronger protection against later abrogation by the states if gun ownership was an immunity that could not be abridged. Unfortunately, he did not do a good job of arguing, and even the few justices who might have been inclined to review a law that has been the same and untouched for 137 years did not seem moved by his arguments.
Instead, the discussion mainly centered on using the old standby, Substantive Due Process, to incorporate the rights against the states. What is difficult is that Chicago’s attorney responded to the argument by stating that Chicago (as an agent of Illinois) has not abrogated the right completely. Even if the Second Amendment were incorporated to the states, that Chicago prevents handguns but allows long-guns means that substantive due process is not being violated, so he argues, because the regulation is reasonable and the rights are not totally abrogated.
The inherent tension between the arguments is that both sides are arguing over whether the 2d Amendment should be incorporated AND, assuming it is, which new test to employ for the right to keep and bear arms. There’s no reason why the Court would necessarily choose one of the previous tests over the others except that it will go through a policy-based analysis to determine a method to evaluate whether substantive due process is violated.
If Chicago gets its way, then a reasonableness (rational basis review) test, which is highly deferential, might be employed, allowing them to win the day in spite of incorporation. There’s at least a colorable argument that the allowance of possession of long guns is sufficient to not run afoul of a putative reasonableness requirement of substantive due process as applied to guns.
If Gura gets his way for McDonald, I’m sure keeping and bearing arms would be subject to strict scrutiny, effectively ending any regulation (save federal) of guns at all.
Somehow, I think the Court will use an intermediate test or come up with a new type of intermediate test so as to ensure that the right to keep and bear arms is allowed, but yet will still allow for regulation.
That is why Privileges or Immunities, while a long shot, would have been a winner. Getting the right to keep and bear arms classified as an immunity would have given stronger federal protection to the right. Instead, the fighting will predominantly be about what type of scrutiny federal courts will be allowed to have over states that are abridging the right and how much regulation they can implement without running afoul of Substantive Due Process.
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