Yesterday, the Committee for Justice submitted an amicus brief in McDonald v. Chicago, the landmark Second Amendment case in which the Supreme Court will decide whether the right to keep and bear arms applies to state and local gun laws. District of Columbia v. Heller, the High Court’s 2008 decision recognizing the Second Amendment as an individual right, left the question of incorporation to the states unaddressed. The Family Research Council, the American Civil Rights Union, and Let Freedom Ring are also amici on the brief, written primarily by Kenneth Klukowski.
Regarding CFJ’s interest in the case, the brief explains that “At the core of CFJ’s mission is the need for objective judicial interpretation of the United States Constitution, based on the document’s text and original meaning rather than on the political ideology, feelings, and life experiences of judges. Accordingly, CFJ believes that the Second Amendment right to keep and bear arms must be afforded the same protection, at all levels of government, as the other fundamental rights in the Bill of Rights.”
If the Court decides to apply the Second Amendment to the states, as CFJ urges, it will have to decide whether to incorporate it via the Fourteenth Amendment’s Due Process Clause or Privileges or Immunities Clause. CFJ argues that the Privileges or Immunities Clause is the most appropriate vehicle in light of the original meaning and text of the Second and Fourteenth Amendments.
Among the reasons why Privileges or Immunities is most appropriate is the Clause’s explicit limitation to “the privileges or immunities of citizens of the United States” (the Due Process Clause has no such limitation). That the Founding Fathers intended the same limit on the Second Amendment is demonstrated both by its reference to “the right of the people” – Supreme Court precedent demonstrates that constitutional references to “the people” refer to the citizenry – and the Amendment’s dual purpose as both an individual and political right. In addition to ensuring a personal right to self-defense, the Second Amendment guarantees the people’s political right to hold government accountable through the latent deterrent of armed resistance – a “safeguard against tyranny” as the Court noted in Heller. Political rights are extended only to United States citizens – the right to vote being the most famous example.
CFJ’s brief adds that, in the absence of constitutional protection for aliens’ right to bear arms, “states should enact statutory entitlements to enable law-abiding aliens access to firearms for self defense.”
While arguing that incorporating the Second Amendment through Privileges or Immunities is the most principled approach, CFJ’s brief notes that there is abundant Supreme Court precedent supporting incorporation through the Due Process Clause, despite the lack of originalist or textual support for the latter approach:
“If the Court chooses not to rely on the Privileges or Immunities Clause, those [Due Process] precedents undoubtedly dictate incorporation because the right to arms is ‘fundamental’ under any of the tests this Court has articulated. … The choice of incorporating the right to bear arms through Privileges or Immunities versus Due Process is partially a choice between first principles and past practice.”
Appellant Otis McDonald argues that the Supreme Court’s landmark 1873 decision in the Slaughter-House Cases, restricting the scope of the Privileges or Immunities Clause, should be overruled to pave the way for incorporation of the Second Amendment. However, CFJ’s brief argues that overturning the Slaughter-House precedent is not only unnecessary but also unwise, because “doing so would render the Privileges or Immunities Clause a tabula rasa.”
As a result,
“Privileges or Immunities could become a cornucopia of myriad entitlements, such as a constitutional right to healthcare, higher education, a ‘living wage,’ ‘decent’ housing, and a clean environment. ... such policy questions are better decided by the people’s elected representatives than the federal judiciary. … By limiting the Privileges or Immunities Clause to rights that have a textual basis in the Constitution, … Slaughter-House constrains this scenario of judicial activism run amok.”