Supreme Court Grants Review In Historic 14th Amendment Case

John Kramer
John Kramer · September 30, 2009

Arlington, Va.—The U.S. Supreme Court today announced it will review a landmark constitutional challenge to the city of Chicago’s total ban on handguns. Although the lawsuit was filed in the immediate wake of last year’s landmark decision in District of Columbia v. Heller, which held that the Second Amendment protected an individual right to keep and bear arms, the actual question at the heart of the case has implications far beyond debates over gun control.

“This case is about more than guns—it is about whether the Supreme Court should interpret the Constitution as the powerful protection of liberty it was intended to be,” said Clark Neily, a senior attorney at the Institute for Justice (IJ), which filed a brief urging the Court to hear the case. “For more than a century, the Supreme Court has failed to give the 14th Amendment its intended meaning, and as a result has failed to protect important rights against overweening government power.”

The question at the heart of the case involves the meaning of the 14th Amendment’s Privileges or Immunities Clause. Passed during the Reconstruction era in response to widespread abuses in the former Confederate states, the Privileges or Immunities Clause was meant to empower the federal government (and the federal courts) to protect individuals from state and local governments bent on violating their individual rights. Unfortunately, the clause was almost immediately read out of the Constitution in a notorious 5-4 Supreme Court decision known as the Slaughter-House Cases. There is near-unanimity among modern legal scholars that Slaughter-House was wrongly decided, but the U.S. Supreme Court has until now failed to grant review in a case allowing it to reexamine that decision.

“Overturning the Slaughter-House Cases was one of the Institute for Justice’s founding missions, and one we continue to litigate to this day,” explained IJ President and General Counsel Chip Mellor. “Without the Privileges or Immunities Clause, the Supreme Court has been reduced to protecting rights in a strikingly inconsistent manner, with important rights getting short shrift or no protection at all. This has come at tremendous cost to some of the rights that were most important to the Framers of the 14th Amendment—rights like economic liberty and the right to armed self-defense.”

Although the Supreme Court has read the 14th Amendment to protect some individual rights in the years since Slaughter-House, it has not done so through the Privileges or Immunities Clause. Instead, it has invoked a controversial doctrine called “substantive due process” to protect rights in a way that has lacked consistency and left the Court open to charges of “judicial activism.” This situation has given fuel to critics who claim that, instead of enforcing the Constitution, the Supreme Court has merely been enacting the policy preferences of individual justices.

“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,” concluded Mellor. “This case presents the Court with an historic opportunity to restore the 14th Amendment as a crucial bulwark of individual liberty against overreaching government power. 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.”