The Tell-Tale Privileges or Immunities Clause

Abstract

Help is on the way! That’s the Supreme Court’s most readily obvious message for those Americans living in the small handful of states that don’t respect the right to keep and bear arms. It should not have been a surprise. Two years ago, in striking down the District of Columbia’s handgun and functional firearms bans, the high court provided a none-too-subtle message to recalcitrant politicians unwilling to obey national civil rights standards. Ancient cases refusing to apply the right to arms against the states, said the Court, had also failed to apply the First Amendment, and were based on obsolete thinking. This term, in McDonald v. City of Chicago, Heller’s wink-and-nudge became a shove, finally dragging anti-gun politicians into the late 19th century.

But at exactly what part of the late-19th century have we arrived? The heady days of the Fourteenth Amendment’s first five years, when it was understood that states were actually bound to respect Americans’ basic rights? Or the century’s last three years, with the Fourteenth Amendment’s central guarantee of freedom having been parodied into a dead letter, the Supreme Court setting about to pick and choose which rights are worth securing, and to what extent? It is this answer to this question, more than the result applying the right to arms, which promises to make McDonald an enduring landmark of American liberty for years to come.

Keywords: McDonald, Heller, 2nd Amendment, Privileges or Immunities Clause, Liberty