The Supreme Court today invalidated Chicago’s law against citizens having firearms for self protection. I agree with the decision, but wish they had decided it on the basis of the “privileges and immunities” clause of the 14th Amendment and not “due process.”
One of the major purposes of the authors of the 14th Amendment was to insure that recently freed slaves and Union sympathizers in the South had the right to bear arms to protect themselves against the likes of the KKK, founded in the 1860s and comprised mainly of Confederate Veterans. That amendment said that the states could not abridge the privileges and immunities guaranteed to the citizens by the US Constitution. Prior to that time, legal scholars were of the mind that state sovereignty was absolute, meaning that if the states wanted to set up an absolute democracy or a dictatorship, the federal government had no say over that, and Bill of Rights and the rest of the Constitution did not apply to the states.
By the 1870s, the courts in the South were rolling back the 14th Amendment, improperly, starting with the Slaughterhouse case, wherein it was found to be proper that the state of Louisiana could specify that all meat in the state had to be slaughtered in ONE slaughterhouse. The other butchers sued under the right to make a living, but lost. Subsequently, other egregious violations of the Constitution were perpetrated by the states, such as the state of California passing a law that a Chinese could not testify against a white person. The Supreme Court has never seen fit to reverse Slaughterhouse, and apparently, only Clarence Thomas is interested in doing so now, according to this ruling. A pity, that is.
Applying the privileges and immunities clause would definitely throw obstacles in the path of states that want to and have abridged our constitutional rights for beyond diet. It would not be favored by either conservatives who like states rights, nor liberals, who would see it as hindering progressive “good government” laws.
Having missed this chance, I’m not sure this court will ever apply the 14th Amendment in a strict constructionist sense (despite all the moanings of the conservative justices about how they are strict constructionists).
The issue has been discussed thoroughly in podcasts from the Cato Institute and I recommend them.
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