Chicago gun case could restore other civil rights

Gun owners aren't the only ones who should pay close attention to the "McDonald" Chicago gun-ban case, which will be argued before the U.S. Supreme Court March 2. If properly decided, the case could restore an important legal tool to protect the rights of small business owners and homeowners who face oppressive state and local government regulations.

Because the Supreme Court in McDonald may consider reinvigorating what is known as the "Privileges or Immunities clause" of the 14th Amendment, those engaged in civil rights battles nationwide may soon have a new arrow in their quiver to better defend the rights of homeowners and entrepreneurs. The clause states "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

The phrase "privileges or immunities" may be unfamiliar today, but 19th-century Americans used it interchangeably with a term modern Americans know very well: rights.

After the Civil War, officials throughout the South systematically violated the rights of newly freed blacks and white abolitionists in their states and sought to keep them in abject poverty and terror. The whole point in amending the Constitution to add the 14th Amendment -- with its Privileges or Immunities clause -- was to end the pervasive culture of oppression and tyranny by state and local governments, thereby protecting through federal law those rights that are necessary to be a full and self-sustaining member of society.

Two rights the 14th Amendment was clearly intended to protect were armed self-defense and economic liberty. A federal constitutional amendment was passed to ensure that all Americans, regardless of which state they lived in, enjoyed these rights.

But in an infamous 1873 decision called the Slaughter-House Cases, the Supreme Court ruled 5-4 that Americans' protection under the Privileges or Immunities clause protected only their rights as U.S. citizens, but not as citizens of a particular state. This signaled that states were free to run roughshod over the rights of citizens in their states without interference from federal courts.

The results were predictably disastrous: Those who were politically disenfranchised soon also became economically marginalized as well. Since then, the U.S. Supreme Court has given certain constitutional rights, such as free speech, greater protection.

But other constitutional rights that are just as clearly spelled out in the Constitution, such as the right to bear arms, or those that the Framers of the 14th Amendment plainly sought to protect, such as economic liberty, have received less protection by the federal courts from state and local infringement.

McDonald presents an opportunity for the Supreme Court to finally embrace the true purpose of the 14th Amendment -- something the court hasn't done in more than 150 years. Restoring the Privileges or Immunities clause to its proper role would result in the protection not only of armed self-defense, but other vital civil rights such as economic liberty, which includes the rights to own property, enter into contracts and earn an honest living.

"The 13th Amendment, which bans slavery, was concerned with whether people were legally free," says Robert McNamara, staff attorney for the Washington-based Institute for Justice. "The 14th was designed to ensure people are meaningfully free. McDonald provides an important opportunity for the court to finally give that Amendment its intended effect.

"A McDonald ruling restoring the Privileges or Immunities clause would be a very good thing not only for those who care about armed self-defense, but for entrepreneurs who are suffocating under mounds of government red tape and property owners whose homes or businesses can be taken from them on a moment's notice at the whim of local development officials."

IJ can point to many tangible examples of specific harm caused to individual rights nationwide as a result of courts' failure to properly enforce the Privileges or Immunities clause. Among the most striking is a ruling from the 10th U.S. Circuit Court of Appeals, which upheld a government-backed casket cartel, holding "Intrastate economic protectionism ... is a legitimate state interest and that [Oklahoma's casket sales statute] is rationally related to this legitimate end."

Economic protectionism is not a legitimate exercise of government power, and it is precisely the kind of abuse that the Privileges or Immunities clause was designed to prohibit.

The constitutionality of Chicago's handgun ban remains an open question after Heller because state and local governments are not directly bound by the Bill of Rights, but instead by the 14th Amendment, which has been interpreted to "incorporate" most of the Bill of Rights -- with one notable exception: the right to keep and bear arms.

Incredibly, the U.S. Supreme Court has never decided whether Americans have a constitutional right to not be disarmed at the whim of local governments, even though the right to keep and bear arms was mentioned repeatedly during the drafting and ratification of the 14th Amendment -- by proponents and opponents alike.

Clark Neily is a senior attorney with the Arlington, Va.-based Institute for Justice. He was one of the three plaintiffs attorneys in District of Columbia v. Heller, the 2008 case that struck down the Washington, D.C., handgun ban. Neily co-authored IJ's amicus brief in McDonald v. City of Chicago. More detailed information on these cases is available at www.ij.org

Review-Journal columnist Geoff Schumacher will return next week.