2nd amend't: will court apply it to states?

Getting the 14th Amendment Right; The Chicago gun case and the fight for economic liberty

Damon W. Root
February 26, 2010

When the Supreme Court hears oral arguments on March 2, 2010 in the landmark gun rights case McDonald v. Chicago, the Second Amendment won’t be the only thing on the justices’ minds. That’s because when it comes to protecting constitutional rights from the depredations of state and local governments, the Court must obey the 14th Amendment, which commands: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.”

McDonald will therefore turn on whether the right to keep and bear arms applies to Chicago via the 14th Amendment’s Privileges or Immunities Clause or via its Due Process Clause. That distinction matters because the Privileges or Immunities Clause has been a dead letter since the controversial Slaughterhouse Cases of 1873, which gutted the clause while upholding a state-sanctioned slaughterhouse monopoly in Louisiana. And despite overwhelming historical evidence that the Privileges or Immunities Clause was specifically written and ratified after the Civil War in order to secure individual rights against state abuse—including the right to armed self-defense—Slaughterhouse has never been overturned.

So the stakes in McDonald are high indeed. And they aren’t just limited to gun rights...

In sum, the 14th Amendment was designed to protect an individualistic and market-oriented form of self-ownership, one that includes the right to armed self-defense, the right to private property, the right to liberty of contract, and the right to pursue an honest living free from arbitrary and unnecessary government interference. That’s the libertarian promise of the Privileges or Immunities Clause. And that’s why Tuesday’s arguments in McDonald v. Chicago matter for both gun rights and economic liberty.

Damon W. Root is an associate editor at Reason magazine.
Read the whole article: http://reason.com/archives/2010/02/26/getting-the-14th-amendment-rig