Privileges and Immunities
Following up on the McDonald vs. Chicago case. There is a good Op-Ed in the Washington Post arguing for using the Privileges and Immunities clause of the 14th amendment to incorporate the 2A.
If the court now “incorporates” the Second Amendment right via the “due process” guarantee, that will be progress because it will enlarge the sphere of protected liberty. And even Justice Antonin Scalia, who recognizes that “substantive due process” is intellectual applesauce, thinks it is too late to repudiate 137 years of the stuff. Still, three points argue for using the “privileges or immunities” scythe against the two gun ordinances.
First, protecting the individual’s right to keep and bear arms for self-defense was frequently mentioned by those who drafted and ratified the 14th Amendment, the purpose of which was to protect former slaves and their advocates from being disarmed by state and local governments determined to assault their security and limit their autonomy.
Second, the central tenet of American political philosophy is that government is instituted not to bestow rights but to protect preexisting rights, aka natural rights — those essential to the flourishing of our natures. In its 2008 decision, the court affirmed that the Second Amendment did not grant a right to keep and bear arms, it “codified a pre-existing right.”
Third, “privileges or immunities” are all those rights that, at the time the 14th Amendment was ratified, were understood to be central to Americans’ enjoyment of the blessings of liberty.
Liberals might hope and conservatives might fear that a revivified “privileges or immunities” clause wielded by liberal justices would breed many new “positive rights” — to welfare, health care, etc. But conservatives know that “substantive due process” already has such a pernicious potential. And they believe that if — a huge caveat — it remained tethered to the intent of its 19th-century authors, the “privileges or immunities” clause would be useful protection against the statism of the states.