McDonald is More than Just a Gun Case

John Kramer
John Kramer · February 22, 2010


Arlington, Va.—Gun owners aren’t the only ones who should pay close attention to the McDonald gun-ban case, which will be argued before the U.S. Supreme Court on March 2, 2010.  If properly decided, the case could restore an important legal tool to protect the rights of small business owners and homeowners who face oppressive state and local government regulations.

Because the Supreme Court in McDonald may consider reinvigorating what is known as the “Privileges or Immunities Clause” of the 14th Amendment, those engaged in civil rights battles nationwide—such as the Institute for Justice (IJ)—may soon have a new arrow in their quiver to better-defend the rights of homeowners and entrepreneurs nationwide.  The Clause states that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

The phrase “privileges or immunities” may be unfamiliar today, but 19th-century Americans used it interchangeably with a term modern Americans know very well:  rights.  After the Civil War, officials throughout the South systematically violated the rights of newly freed blacks and white abolitionists in their states and sought to keep them in abject poverty and terror.  The whole point in amending the Constitution to add the 14th Amendment—and with it the Privileges or Immunities Clause—was to end the pervasive culture of oppression and tyranny by state and local governments, thereby protecting through federal law those rights that are necessary to be a full and self-sustaining member of society.  Two rights the 14th Amendment was clearly intended to protect were armed self-defense and economic liberty.  A federal constitutional amendment was passed to ensure that all Americans, regardless of which state they lived in, enjoyed these rights.

But through an infamous 1873 decision called the Slaughter-House Cases, the Supreme Court ruled 5-to-4 that Americans’ protection under the Privileges or Immunities Clause only protected their rights as U.S. citizens, but not as citizens of a particular state thereby signaling that states were free to run roughshod over the rights of citizens in their states without interference from federal courts.  The results were predictably disastrous:  Those who were politically disenfranchised soon also became economically marginalized as well.  Since then, the U.S. Supreme Court has given certain constitutional rights, such as free speech, greater protection, but other constitutional rights that are just as clearly spelled out in the Constitution, such as the right to bear arms, or those that the Framers of the 14th Amendment plainly sought to protect, such as economic liberty, less protection by the federal courts from state and local infringement.

IJ Senior Attorney Clark Neily was one of the three attorneys who litigated District of Columbia v. Heller, the 2008 case that struck down the D.C. gun ban.  Neily, who co-authored IJ’s amicus brief in McDonald, said, “McDonald presents an opportunity for the Supreme Court to finally embrace the true purpose of the 14th Amendment—something the Court hasn’t done in more than 150 years.  Restoring the Privileges or Immunities Clause of the 14th Amendment to its proper role would result in the protection not only of armed self-defense, but other vital civil rights such as economic liberty, which includes the rights to own property, enter into contracts and earn an honest living.”

“The 13th Amendment, which bans slavery, was concerned with whether people were legally free,” explained IJ Staff Attorney Robert McNamara.  “The 14th was designed to ensure people are meaningfully free.  McDonald provides an important opportunity for the Court to finally give that Amendment its intended effect.  A McDonald ruling restoring the Privileges or Immunities Clause would be a very good thing not only for those who care about armed self-defense, but for entrepreneurs who are suffocating under mounds of government red tape and property owners whose homes or businesses can be taken from them on a moment’s notice at the whim of local development officials.”

Chip Mellor, president and general counsel of the Institute for Justice, said, “The Supreme Court’s failure to properly enforce the Privileges or Immunities Clause is not an example of judicial restraint but of judicial abdication.  What this country needs now more than ever—and what the 14th Amendment was intended to ensure—is an engaged judiciary that takes individual rights seriously.”

“What we find too often in courts across the nation today is not judicial activism, but judicial passivism,” Mellor said.  “The courts are not fulfilling their obligation to act as a check against the legislature and the executive branches of government when they overstep their bounds.  As a result of this judicial passivism, we have seen a great expansion of government power since the New Deal.  What we need is judicial engagement—where judges judge.  If a law violates constitutional rights, the courts must not continue doing what they too often do now:  reflexively defer to the other branches of government.  Judges must step up and more aggressively defend the public’s rights when the legislature or the executive branches overreach the legitimate bounds of their authority.”

IJ can point to many tangible examples of specific harm caused to individual rights nationwide as a result of courts’ failure to properly enforce the Privileges or Immunities Clause.  Among the most striking is a ruling from the 10th U.S. Circuit Court of Appeals, which upheld a government-backed casket cartel, stating:  “[W]hile baseball may be the national pastime of the citizenry, dishing out special economic benefits to certain in-state interests remains the favored pastime of state and local governments . . . .  [W]e hold that intrastate economic protectionism . . . is a legitimate state interest and that [Oklahoma’s casket sales statute] is rationally related to this legitimate end.”  But economic protectionism is not a legitimate exercise of government power, and it is precisely the kind of abuse that the Privileges or Immunities Clause was designed to prohibit.

The constitutionality of Chicago’s handgun ban remains an open question after Heller because state and local governments are not directly bound by the Bill of Rights, but instead by the 14th Amendment, which has been interpreted to “incorporate” most of the Bill of Rights—with one notable exception:  the right to keep and bear arms.  Incredibly, the U.S. Supreme Court has never decided whether Americans have a constitutional right to not be disarmed at the whim of local government officials, even though the right to keep and bear arms was mentioned repeatedly during the drafting and ratification of the 14th Amendment—by proponents and opponents alike.

“Overturning the Slaughter-House Cases was one of the Institute for Justice’s founding missions, and one we continue to pursue to this day,” Mellor said.  “IJ has fought and will continue to fight for principled judicial engagement, which means that courts should read the Constitution for what it says and strike down laws that violate it.  This case presents the U.S. Supreme Court with an historic opportunity to restore the 14th Amendment as a crucial bulwark of individual liberty against overreaching government power.  We hope the Court’s decision will have far-reaching consequences for the ability of all Americans to live their lives free from abuse at the hands of state governments.”

Journalists can find comprehensive material on the Privileges or Immunities Clause by visiting: