November 17, 2009

McDonald v. Chicago: revolution or restoration?

By McDonald v. Chicago: revolution or restoration?

Author: Timothy Sandefur

Among the most important cases that the U.S. Supreme Court will decide this term is a case involving the Second Amendment, called McDonald v. Chicago. In fact, it may end up being the most important case of the decade—because the case is about a lot more than gun rights. It’s about the way the federal government protects individual rights against the interference of state governments. The plaintiffs filed their brief in the Supreme Court yesterday, and you can read it here. Pacific Legal Foundation will be filing a friend of the court brief in a few days, and we’ll post it when we do.

Now, here’s why this case is so important. Back in 1868, the Fourteenth Amendment was added to the U.S. Constitution. This Amendment forbids states from violating individual rights. Before that time, the Bill of Rights only protected citizens against the federal government. So when the Civil War was over, and the Union was being reconstructed, the antislavery political leaders who had won that war wanted to amend the Constitution to secure the rights of former slaves (and of all Americans) and to clarify how the federalist system works. In particular, they wanted to put an end to the states’ rights interpretation of the Constitution.

The people who wrote the Fourteenth Amendment believed that Americans were Americans first and citizens of the states only second. And they believed that all Americans were entitled to protection for their natural rights and their rights under the Anglo-American common law (like habeas corpus). They also believed that Americans were entitled to protection regardless of race. So they wrote an Amendment that reflected these intentions:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. [Notice—they’re federal citizens first, and citizens of states only second; this was the first time the Constitution had ever defined the word “citizen.”] No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States [Thus the states were not allowed to violate the individual rights of citizens]; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Unfortunately, in the first Supreme Court case ever to interpret this Amendment, the Court basically erased the second sentence—the “privileges or immunities clause” from the Amendment. That case was called the Slaughter-House Cases, and since then, the Court has virtually never enforced the privileges or immunities clause. What’s most tragic about this is that the privileges or immunities clause was intended to be the centerpiece of this Amendment: it was that clause that the authors of the Amendment considered the most important. By basically erasing it from the Constitution, the Court signaled the beginning of the end of federal efforts to protect the rights of former slaves. And that’s one reason why a century later, southern states were still routinely violating the rights of black Americans.

What would overturning Slaughter-House mean? More on that in my next post.

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