The Supremes are considering another 2nd amendment case which might have far reaching consequences (in a good way) on this particular battle front. George Will has a good column this week which takes a look at the history of the fight and what the implications of McDonald v Chicago might be.
It probably will result in a routine ruling that extends a 2008 decision and renders dubious many state and local gun-control laws. What could — but, judging from the justices’ remarks during oral argument, probably will not — make the ruling momentous would be the court deciding that the two ordinances at issue violate the 14th Amendment’s “privileges or immunities” clause. Liberals and conservatives submitted briefs arguing, correctly, that this clause was intended to be a scythe for slicing through thickets of state and local laws abridging fundamental liberties.
This isn’t a simple issue for those who haven’t followed this particular argument closely, but after Heller opened the door for the debate, it does’t boil down to a matter of whether or not the 2nd amendment is an individual right (SCOTUS has already determined it is) but rather on which constitutional grounds the finding is based. First they may have to speak to whether or not the 2nd amendment is one of the fundamental rights which are incorporated down to the states, or whether the states still retain the ability to restrain those rights with impunity.
But second, they would have to identify which aspect of the 14th amendment is to be used as the basis for the finding. Will it be the guarantee that no state shall deny liberty “without due process of law” or will they dig up the long abandoned “privileges or immunities” clause?
To the drafters of the 14th Amendment, the phrase “privileges or immunities” was synonymous with “basic civil rights.” But in 1873, the court held that only some of the rights enumerated in the Bill of Rights restrict states by being “incorporated” into the 14th Amendment’s “due process” clause.
Since 1897, the court has held, with no discernible principle, that some rights enumerated in the Bill of Rights are sufficiently fundamental to be “incorporated” but others are not. This doctrine bears the oxymoronic name “substantive due process.” Substance is what process questions are not about.
If the court now “incorporates” the Second Amendment right via the “due process” guarantee, that will be progress because it will enlarge the sphere of protected liberty. And even Justice Antonin Scalia, who recognizes that “substantive due process” is intellectual applesauce, thinks it is too late to repudiate 137 years of the stuff. Still, three points argue for using the “privileges or immunities” scythe against the two gun ordinances.
Early indications from observers seem to indicate that they will back down and go with the due process argument. This is good news to some conservatives, believe it or not, who fear that liberals would take a finding of privileges or immunities and run with it to “discover” all sorts of other imagined rights, covering things like health care, welfare, or the continued, vigorous lifestyle of the salt marsh tit mouse.
Stay tuned to see how good George Will’s crystal ball is. We should find out before too long.
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