The 2nd Amendment, the Privileges or Immunities Clause, and a Renaissance of Economic Liberty

As I have previously blogged,the Supreme Court granted cert in McDonald v. Chicago, and in the question presented, queried whether incorporation can be accomplished through the privileges or immunities clause of the 14th amendment. The important question, beyond incorporation, is whether the Supreme Court is willing to expand the privileges or immunities of citizenship to certain substantive fundamental rights. To many libertarians, one of the most promising such rights is economic liberty.

So, can the privileges or immunities clause and McDonald v. Chicago restore economic liberty?

At Cato, the venerable Bob Levy (whom I worked for on D.C. v. Heller), writes:

Regrettably, courts have routinely rubber-stamped legislative restrictions on economic liberties. Who would have imagined, however, that the Second Amendment—the right to keep and bear arms— could provide the battlefield on which to reinvigorate judicial review of economic regulations? Yet that might be the outcome in McDonald v. Chicago, a challenge to Chicago’s gun laws, in which Cato and IJ filed a joint brief with the U.S. Supreme Court. Here’s the story: how gun rights and economic liberties intersect.

In the end, the Second Amendment will very likely constrain state governments as well as the national government. The dual criteria under substantive due process are whether the right is implicit in our Anglo- American system of ordered liberty or deeply rooted in our nation’s history and tradition. The Second Amendment surely qualifies. Perhaps the more interesting question is whether the Court will expand its selective incorporation via the Due Process Clause, or overturn Slaughter-House, as Cato and IJ argue in their brief, and declare that the right to keep and bear arms is one of the privileges or immunities of U.S. citizenship that—along with many other liberties, ultimately including economic liberties—may not be abridged by the states.

Over at Reason Magazine, Jacob Sullum opines (h/t Instapundit)

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.

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. 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.

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.

I am not too optimistic the Court will give more than one or two votes to the view Levy and Reason espouse.  But, even if the Privileges or Immunities Clause receives one or two votes, that is more meaning that the clause has possesed in nearly 150 years. For future litigation, citizens can seize on this clause, and the re-invigoration of privileges or immunities will commence. As I have argued elsewhere, and am currently writing in an article in anticipation of McDonald v. Chicago, we should be wary of opening Pandora’s box. The privileges or immunities clause is like the due process clause in substance, but without the century of Jurisprudence the conservative court has added to shackle this wide-ranging constitutional provision. If we jump in, head first, without a life preserver, we may soon regret it.

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