John Kramer
Institute for Justice
6/28/2010
Arlington, Va.—Gun owners today rejoiced as the U.S. Supreme Court struck down the city of Chicago’s ban on handguns in McDonald v. City of Chicago. Today’s ruling should be celebrated not just by gun owners, but by everyone who cares about liberty and the unique role played by courts in protecting it under our system of government. The Institute for Justice (IJ) has for decades been among the most consistent defenders of an engaged judiciary and an appropriately originalist interpretation of the Constitution, including particularly the Privileges or Immunities Clause of the 14th Amendment. As today’s ruling makes clear, the right to keep and bear arms is a uniquely American, and decidedly fundamental individual right. That will be the result for which the McDonald decision will be remembered and, for many, celebrated.
But McDonald is about much more than just guns. At its heart, McDonald is a case about liberty. The Court was deeply divided over whether the Constitution protects a right to own guns from improper interference by state and local governments—just as District of Columbia v. Heller in 2008 held that the Second Amendment protects such a right against federal interference. Four justices voted to strike down Chicago’s handgun ban, finding a right to keep and bear arms under a doctrine called “substantive due process.” Four disagreed, voting to uphold the gun ban.
The pivotal fifth vote was Justice Clarence Thomas, who noted that, for all the disagreement between the two groups of four Justices, “neither side argues that the meaning they attribute to the Due Process Clause was consistent with public understanding at the time of its ratification.” Justice Thomas agreed that the gun ban should be struck down, but instead proposed “a more straightforward path to this conclusion, one that is more faithful to the Fourteenth Amendment’s text and history”—namely, the 14th Amendment’s “Privileges or Immunities Clause.” That Clause states that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
“The most important takeaway from today’s decision is that it remains an open question which provision in the 14th Amendment protects the right to keep and bear arms against state infringement,” said IJ Senior Attorney Clark Neily, who was one of the three attorneys who litigated District of Columbia v. Heller, the 2008 case that struck down the D.C. gun ban. Neily, who co-authored IJ’s amicus briefs throughout the appellate process in McDonald, explained, “Today’s outcome is a tremendous victory for liberty, and we are pleased that it hinges on Justice Thomas’s compelling account of the history and purpose of the 14th Amendment, including the central role of the Privileges or Immunities Clause.”
The article continues at Institute for Justice.
