Author: Timothy Sandefur
By now, the answer to the question “revolution or restoration?” should be clear. In 1873, the U.S. Supreme Court cut a hole in the Fourteenth Amendment, taking from it the most important of its provisions, and leaving judges and lawyers to find clever alternatives to enforce the purpose of that Amendment and protect constitutional rights from state action. If the Supreme Court revives the privileges or immunities clause, it will not be a revolution, but a restoration of what the Amendment’s authors intended: to protect the rights—all rights—of Americans—all Americans—against infringement by state and local governments.
Would this destroy the autonomy of states? Of course not: states have no legitimate authority to deprive individuals of their rights, and can have no rightful interest in protecting such claimed authority. Although the Slaughter-House Court said it was concerned about federalism, that concern was drastically overblown. To protect constitutional freedom against state autocracy would not take away from the states any of their rightful authority. But it would limit how state legislatures and state governors and local officials can exploit us. That’s too much for some politicians, who can’t stand the idea that regular citizens might be able to shield themselves from overreaching bureaucrats.
Overruling the Slaughter-House Cases would not require overthrowing the theory of substantive due process, which is an important and legitimate part of our constitutionalism. Instead, it would put our constitutional rights—all rights, including not only the right to possess firearms, but also the constitutional right to earn a living without unreasonable government interference—on a solid legal and historical basis. As Damon Root writes in the article I recently pointed to, the Fourteenth Amendment was written “to protect a sweepingly libertarian idea of self-ownership. That idea includes the right to acquire property, run a business, and buy and sell labor without unnecessary or improper interference by the government.”
We’ll have more to say about the McDonald case in coming months. Oral arguments are likely to be scheduled for February, and the decision will be issued probably shortly before July 4th. In the meantime, you can check out many of the other amicus briefs at the Second Amendment Foundation’s website.