Why McDonald is about more than guns

Karl Hailperin

The case that came before the Supreme Court on Tuesday, McDonald v. Chicago, had the makings of a fairly straightforward case. The case deals with Chicago laws restricting the ownership of firearms, specifically the handgun ban. Given that the Supreme Court had overturned a similar D.C. law in the 2008 case District of Columbia v. Heller on Second Amendment grounds and the lengthy legal precedents over the past century ruling that the Due Process Clause of the Fourteenth Amendment incorporated various provisions of the Bill of Rights against the states, Alan Gura – McDonalds’s laywer, who also litigated Heller – could have made a standard due process clause argument, left it at that and been pretty much guaranteed a victory.
However, Gura decided to also make the case that the proper way to incorporate the Second Amendment and the rest of the Bill of Rights is through the Fourteenth Amendment’s Privileges or Immunities Clause, which reads, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
Such a ruling would involve overturning the 1873 Slaughter-House Cases, which interpreted the Privileges or Immunities Clause so narrowly as to essentially render it meaningless. However, the Slaughter-House Cases are generally regarded by legal scholars to have been improperly decided. Both Gura’s brief and an amicus curiae brief signed by several well-respected law professors documented the historical evidence supporting that the intent of the Privileges or Immunities Clause was to protect against state infringement on a variety of rights, including but not limited to those enumerated in the Bill of Rights. Thus, incorporation via the Privileges or Immunities Clause would be more than just incorporation by another means; it would bring precedent more in line with the Constitution and enable previously neglected rights to be fully protected.
Sadly, the Court looks unlikely to overturn the Slaughter-House Cases. Justice Scalia dismissed Gura’s Privileges or Immunities Clause arguments as little more than a publicity stunt to get “a place on some law school faculty.” Chief Justice Roberts also seemed squeamish about reviving the Privileges or Immunities Clause, worrying that it “would give judges a lot more power and flexibility in determining what rights they think a good idea than they have now with the constraints of the Due Process Clause.” Since Heller was a 5-4 ruling with Roberts and Scalia in the majority, this makes it unlikely that there will be five votes to overturn the Slaughter-House Cases. If the Court does in fact choose not to take this opportunity to revisit its prior decision, it will have been negligent in its duty to the Constitution.