The 2nd Amendment, Incorporation, and the Return of Economic Liberty

The McDonald case, which has received much attention on this blog, offers the Court the opportunity to revive the Privileges and Immunities clause of the Fourteenth Amendment. This clause has largely been read out of the Constitution, forcing the Due Process and Equal Protection clauses to fill the void. Reviving the clause could spur the return of economic liberty.

"[T]he Court's reasoning in applying the Second Amendment to the states could have implications far beyond the right to arms. If it cites the Privileges or Immunities Clause instead of (or in addition to) the usual rationale for incorporation, the 14th Amendment's Due Process Clause, it can prepare the ground for a renaissance of economic liberty. ...

The right to weapons was one of the liberties frequently cited by the 14th Amendment's backers, since disarmed blacks were defenseless against attacks by Klansmen and local officials. As reflected in post-Civil War legislation that the amendment was intended to reinforce, its supporters also were concerned about economic liberty: the right to own and exchange property, make and enforce contracts, and work in the occupation of one's choice -- all freedoms the Southern states tried to deny former slaves.

Despite this context, in 1872 the Supreme Court declared that the "privileges or immunities of citizens" included only those rights that were created by the Constitution (such as the right to petition the federal government), not the pre-existing rights the Constitution was designed to protect. The Court therefore upheld a slaughterhouse monopoly created by the state of Louisiana, an infringement of economic liberty that the three dissenting justices saw as a violation of the Privileges or Immunities Clause.

Those privileges or immunities, the dissenters said, include "the right to pursue a lawful employment in a lawful manner, without other restraint than such as equally affects all persons." That view reflects the original understanding of the 14th Amendment, which holds great promise as a bulwark against arbitrary interference with economic freedom. The Supreme Court should seize this opportunity to revive it."

Update: For those interested in this subject, the Georgetown Law Federalist Society is hosting an event on October 22 to discuss this very topic. Lunch is usually provided.

Date: Thursday, October 22nd
Time & Place: Noon in McDonough 156
Speaker: Clark Neily, Senior Counsel at the Institute for Justice
Topic: Economic Liberties and the 2nd Amendment