Justice Thomas and the 14th Amendment

Law professor Randy Barnett in the WSJ on the McDonald v. Chicago 2nd Amendment Supreme Court case-- with a special focus on Justice Thomas' impressive and potentially vital resurrection of the 14th Amendment's relevance.

There is a remarkable academic consensus that the original meaning of the 14th Amendment protected an individual right to keep and bear arms against interference by state governments. Yesterday's Supreme Court decision in McDonald v. Chicago affirmed that this is indeed the case. It is, therefore, a great victory for enforcing the original meaning of the Constitution. Thankfully for the rights of Americans, the Chicago gun ban at issue will soon be consigned to the dust bin of history.

Since the Supreme Court acknowledged in D.C. v. Heller (2008) that the Second Amendment protects an individual right to arms, it was expected that it would eventually enforce that right against state interference. The big debate among observers was how the court would do so.

Would it use the 14th Amendment's Privileges or Immunities Clause that says: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"? Or would it use the Amendment's Due Process Clause that says: "nor shall any state deprive any person of life, liberty, or property, without due process of law"?

The Privileges or Immunities Clause has been virtually a dead letter since 1873, when the court in The Slaughter-House Cases limited its scope to rights of a purely national scope, such as the right to access a foreign embassy or to be protected when traveling on the high seas. It was a preposterous interpretation...

In oral argument last March, several conservative justices expressed skepticism that the scope of the Privileges or Immunities Clause could be sufficiently limited to avoid judicial abuses. This was a strong signal that the court would "incorporate" the right to keep and bear arms against state interference via the 14th Amendment's Due Process Clause—the way it protects most other rights enumerated in the Bill of Rights. And yesterday this was exactly what four justices chose to do.

But...the deciding vote was cast by Justice Clarence Thomas, whose concurring opinion rested solely on the Privileges or Immunities Clause. While agreeing "with the Court that the Second Amendment is fully applicable to the States," he did so "because the right to keep and bear arms is guaranteed by the Fourteenth Amendment as a privilege of American citizenship."

Furthermore, nothing in the plurality opinion by Justice Samuel Alito cast any doubt on Justice Thomas's analysis....

Justice Thomas's analysis summarizes and reflects a consensus of legal scholarship that the Privileges or Immunities Clause does protect at least the rights enumerated in the Bill of Rights against state interference. Because his interpretation of the clause was necessary to reach the outcome in McDonald v. Chicago, it is now very much alive.

...the fact that there was only a plurality for using the Due Process Clause means that the original meaning of the Privileges or Immunities Clause is now a part of constitutional law. Justice Thomas's uncontradicted analysis will enter into the casebooks from which all law students and future justices study the 14th Amendment...

By declining to take issue with Justice Thomas's impressive 56-page originalist analysis, the other justices in effect conceded what legal scholars have for some time maintained—that the court's cramped reading of the clause in 1873 was inconsistent with its original meaning. Yesterday the lost Privileges or Immunities Clause was suddenly found. And some day it may be fully restored to its proper place as the means by which fundamental individual rights are protected under the Constitution against abuses by states.