Editors' note: this piece is co-authored by Colin Hanna
Lovers of liberty rejoiced when the news arrived Monday that the Supreme Court had finally ruled that gun ownership is an individual fundamental liberty just as important as free speech or property rights. It is disappointing that the decision was not unanimous or at least that it was so narrow. It is also unsettling that that it relied upon the “Due Process” clause of the 14th Amendment instead of the Privileges and Immunities Clause of the 14th Amendment.
In the final analysis, the 5 - 4 ruling makes clear just how important the stakes are with regard to vacancies on the Supreme Court when it comes to protecting the rights of the American people.
For the better part of the twentieth century, the Court has vacillated on the question of whether the 2nd Amendment was a collective or individual right and whether that right protected Americans even against state or local government firearm regulation. Over the last couple of years, first with District of Columbia v. Heller and now with McDonald v. Chicago the Court formally acknowledged the Constitutional principle that the 2nd Amendment lives -- it is a vibrant right with real effect and that it applies across the board even against states and local government.
While any decision acknowledging the individual right of firearms ownership is welcomed, scholars reading the opinion may wonder about the means by which the Court reached its outcome. In particular, they should focus on Justice Thomas’ concurrence. Although it didn’t carry the day, it makes the stronger argument for upholding the 2nd amendment rights of all Americans and gives a better rationale for protecting the rights of the American people generally.
The Privileges or Immunities Clause of the Fourteenth Amendment declares that “[n]o State . . . shall abridge the privileges or immunities of citizens of the United States.”
Instead of relying on the weak reed of the selective incorporation doctrine -- which purports that the 14th Amendment’s “due process” clause “selectively” incorporates or applies portions of the Bill of Rights to the states -- as the majority opinion does, Thomas’ concurrence gives vibrancy to the Fourteenth Amendment’s nearly dormant Privileges and Immunities Clause.