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.
In a remarkable recounting of the rationale behind the adoption of the 14th Amendment Thomas quotes founding father Luther Martin (the principal advocate of the Constitution’s ban on slave trade at the Constitutional Convention) and President Abraham Lincoln as provides accounts from contemporary press coverage at the time along with a comprehensive analysis of Congressional records. Justice Thomas persuasively argues in his concurrence that the 14th amendment was adopted as a means of “repairing the damage to the nation that slavery had caused” and he reminds us that it resulted in fundamental changes in the status of all citizens. Thomas points out that the 14th Amendment “unambiguously overruled” Dred Scott and declared clearly that blacks like other Americans were citizens of the United States and citizens of the states where they resided. However, he places a special emphasis on the 14th Amendment’s pronouncement that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The “Privileges and Immunities” clause Thomas says, “On its face, this appears to grant the persons just made United States citizens a certain collection of rights—i.e., privileges or immunities— attributable to that status.“
So why isn’t this recognized today by the Courts or even taught in law schools? In Thomas’ view, it was not a failure of will or action by the Republican Congress or the people of the United States when they ratified the 14th Amendment. Instead, it was the Supreme Court that failed to follow through. Within three years after the adoption of the 14th Amendment, the Supreme Court retreated from its duty to protect the liberties of all Americans. In a “closely divided decision (in the so called Slaughterhouse cases) ….. the Court drew a sharp distinction between the privileges and immunities of state citizenship and those of federal citizenship” holding that that the Privileges or Immunities Clause protects only federal citizenship rights and not rights that do not owe their existence to “the Federal government, its National character, its Constitution, or its laws.”
Even this narrow view would have allowed the broad panoply of fundamental rights such as property ownership, free assembly and a protection against cruel and unusual punishment to be granted to all Americans. Unfortunately, when the Court was given a chance to follow this argument to its logical conclusion in a subsequent case just eight years after the adoption of the 14th Amendment the Supreme Court inexplicably reversed course.
In a case called United States v. Cruikshank involving 65 blacks that had been brutally murdered by a white militia because they were participating in a peaceful assembly in front of a Louisiana Courthouse, the Court determined that neither their 2nd amendment rights nor their rights to public assembly were protected by the 14th Amendment. Denying the obvious, the Court ruled that these murdered men and women were wrong to assume that the “Privileges and Immunities” clause would offer them any protection. Tragically, the privileges and immunities clause remains in this “marginalized” state today.
Nevertheless, Justice Thomas argues that this provision should be given a fresh new look. In spirited fashion, Thomas calls upon the Court to reject the “Due Process” doctrine that allows the Courts to use its own discretion to determine which rights will be protected and which will not. We embrace Justice Thomas’ efforts and agree that the Court should instead recognize as Thomas asserts that “the original meaning of the Fourteenth Amendment offers a superior alternative, and that a return to that meaning would allow this Court to enforce the rights the Fourteenth Amendment is designed to protect with greater clarity and predictability than the substantive due process framework has so far managed.”
Colin Hanna is the President of Let Freedom Ring.