I have recently been spending some time thinking about some of the arguments being made in the Chicago handgun case, McDonald v. City of Chicago, currently before the Supreme Court.  At issue in that case is whether it is constitutional for states and local governments to ban the possession of handguns, in light of last year’s ruling n DC v. Heller.  The case naturally hinges on the question of incorporation, a doctrine created and selectively applied by the Supreme Court to bind portions of the Bill of Rights against the states through the Due Process Clause of the 14th Amendment.  Legal conservatives, like those bringing McDonald, have long complained that the Due Process Clause, properly understood, contains no such doctrine.  To supplement the shortfall, they have brought before the Supreme Court an argument that the 2nd Amendment is incorporated by the Privileges and Immunities Clause of the 14th Amendment.  I do not think this is so.

The history of the Privileges and Immunities Clause in the 14th Amendment is best understood by reference to the Slaughterhouse Cases which gave the clause its first judicial interpretation.  The Slaughterhouse Cases involved a challenge to a state law in which Louisiana established a state-wide slaughterhouse corporation and prohibited the slaughter of animals in any facility not operated by that corporation.  The law was challenged broadly on 14th Amendment grounds, including the Privileges and Immunities Clause.

Critics contend that the Slaughterhouse Cases effectively “gutted” the Privileges and Immunities Clause and now hope to use that Clause as a vehicle for a new, “conservative” foundation for incorporation.  But would a flawed doctrine by any other line of constitutional authority not smell as sweet to the activists who seek to promote the rule of judges over the text of the Constitution?  Are the advocates in McDonald prepared to argue that years of complaining about the constitutional fallacy of “substantive due process” is really no more interesting than a semantic disagreement; that the judicial authority they have decried has been there the whole time, just under a different name?

A simple reading of the text and reference to the parallel P&I provision of the original Constitution reveals that the language of the Privileges and Immunities Clause cannot support incorporation.  In Slaughterhouse, the Supreme Court noted that “[The original P&I Clause's] sole purpose was to declare to the several States, that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.”  In other words, a state cannot discriminate against the citizens of another state.

The 14th Amendment takes the same language and adds only the slightest change.  Whereas the original P&I Clause referred to the “Citizens of the several States” (US Const. Article 4, Section 1), the new clause referred to the “citizens of the United States.” (US Const. Amdt. 14, Section 1)  This second clause comes immediately after a blanket grant of US citizenship to “all persons born or naturalized in the United States” and of state citizenship to “the state wherein they reside.”  Anyone residing in a state, or who otherwise has state citizenship, is covered by the original P&I Clause.  However, the 14th Amendment created a class of people (admittedly more hypothetical than real) who may be citizens of the United States, having been “born or naturalized” here, but do not “reside” in any state, and therefore hold no state citizenship.  The 14th Amendment P&I Clause extends coverage to those people as well.

Nowhere can I recall having heard an argument that the privileges and immunities granted by any state are automatically incorporated against the rest through the original Privileges and Immunities Clause.  Such an understanding of the P&I Clause would surely have seemed bizarre to the founders, and is strange to us today.  The minor linguistic changes between the original and the 14th Amendment P&I clauses are certainly not significant enough to invite the creation of an incorporation doctrine.

As the Supreme Court considered in the Slaughterhouse Cases (with emphasis added):

Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?

All this and more must follow, if the proposition of the 78 plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever in its discretion any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects. And still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. The argument we admit is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when in fact it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people; the argument has a force that is irresistible, in the absence of language which expresses such a purpose too clearly to admit of doubt.

We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.

I am equally convinced, and believe that the P&I argument in McDonald must fail.

Tags: 14th Amendment, 2nd Amendment, constitution