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Nov 17, 2009 
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Alan Gura, perhaps the most audacious lawyer in America, is at it again. Fresh from his victory in District of Columbia v. Heller, in which the Supreme Court agreed with Gura that the Second Amendment right to keep and bear arms is an individual right, Gura is back before the Court, arguing in McDonald v. Chicago that the Second Amendment should be enforced against lesser governments, in this case the city of Chicago and the village of Oak Brook, wherever that is.
But this is not a gun post. This is a questioning post.
What does this phrase mean to you?
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States …
If you follow typical Popehat reader demographics, you’re an American between the ages of twenty-five and forty, and have at least a bachelor’s degree. You may well have attended law school. You may be a lawyer. If that’s the case, you were taught that the phrase, drawn from the Fourteenth Amendment to the United States Constitution, means …
absolutely nothing.
The “Privileges or Immunities” clause, in Justice Black’s words describing another amendment, is “an inkblot” on the Constitution. That’s what the Supreme Court decided, in the Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1873). While Slaughterhouse, interpreted narrowly, decided the question of whether the city of New Orleans could grant one person a monopoly on the butchery of cattle, the route the Court took in getting to that decision was essentially to void what the framers of the Fourteenth Amendment considered its key clause, forcing the states to provide all citizens of the United States all of the rights protected by the Constitution, including the Bill of Rights. Those are all of the rights that concern most of us.
The big rights, freedom of religion, speech, from warrantless search and seizure, and, in one case presently before the Court, the right to keep and bear arms.
Leaving aside the Bill of Rights, do you even know what your rights, as a United States citizen are? Your rights under the Constitution before the enactment of the Bill of Rights?
Let’s see. There’s the right to use navigable waters of the United States. There’s the right to enter an American embassy or consulate abroad. There’s the right to sue in federal court (assuming your case meets narrow federal jurisdictional requirements). And there’s the right to visit the federal mint.
Slaughterhouse teaches us that “privileges or immunities” does not mean “rights,” though clearly it did to the drafters of the Fourteenth Amendment, and to everyone else at the time. Everyone except a small majority on the Supreme Court, who were grabbing for a brass ring of their own: to deny newly freed citizens the right to sue over violations of civil rights and liberties in southern states. Meaning that the south could continue to deny black “citizens” equal treatment, even though they’d lost a war over that point.
Which the south promptly did. Plessey v. Ferguson is the spiritual progeny of Slaughterhouse.
And Slaughterhouse stands as good law to this day. The enlightened courts of the 20th century got around some of Slaughterhouse‘s worst aftereffects, holding through the doctrine of “selective incorporation” that “substantive due process” (a phrase that is not as some have called it an oxymoron, but is still linguistically and legally speaking, absolute nonsense) protects American citizens from state abuse of some, but not all, of the Constitutional rights guaranteed by amendment, like speech, trial by jury, little things like that.
It’s fair to say that most of the Constitutional law of the 20th century has been a dishonest attempt by the Court to rectify its dishonesty in 1873.
But the remedy is as dishonest as the disease. As Gura shows in his brief before the Supreme Court, according to any dictionary or thesaurus of the day, “rights” meant “privileges” meant “immunities”. The terms were circular. The “privileges or immunities” clause wasn’t meant to give all Americans the freedom to enter a mint. It meant to protect all Americans from state abuse of their Constitutional rights, including but not limited to those set forth in the first ten amendments.
If Gura is successful, if he can convince the Court to overturn Slaughterhouse, the immediate result will only be that cities like Chicago will have to regulate gun ownership in a sensible manner, rather than outright banning it. But that will only be the immediate result.
The long-term result may be something difficult to foresee, with results reaching far, far beyond whether honest citizens in Chicago can own pistols just as the criminals do.
It could be a small revolution.
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