When the U.S. Supreme Court last year recognized the individual right to keep and bear arms under the Second Amendment, it left open a gaping question: does the Second Amendment restrict state and local regulations?
The Court was able to momentarily dodge the issue because the Heller case involved a challenge to a law of the District of Columbia. But now that it has accepted review of a challenge to a Chicago law, the Court must address that question. Two federal appeals courts have held that the Second Amendment does not apply to state and local governments.
The first eight amendments in the Bill of Rights by their terms restrict federal action only. Over the years, the Court has applied some of the Bill of Rights to the states via the due process guarantee of the 14th Amendment, which was adopted after the Civil War to restrict state abuses of individual liberty.
But the due process clause was not intended to protect the full range of rights retained by the people. That task was assigned to the first of the 14th Amendment's guarantees, which forbids states from infringing the "privileges or immunities" of citizens. While thousands of state and local laws have been struck down over the years as violations of the 14th Amendment's due process and equal protection guarantees, the privileges or immunities clause, oddly, has essentially been a dead letter.
That status owes to the 1873 Slaughter-House Cases, in which the Court upheld a slaughterhouse monopoly in Louisiana that drove scores of butchers out of business. In one of the Court's worst decisions ever, a 5-4 majority ruled that the clause protects only a few rights, such as access to the seat of government.
In fact, the privileges or immunities clause was intended to protect the basic rights that citizens of all free governments possess, such as economic liberty and the freedoms protected by the Bill of Rights, including the right to keep and bear arms.
As the Court acts to protect gun owners' rights, it can set an even greater precedent for freedom by at long last consigning the Slaughter-House Cases to the dustbin of history.
Clint Bolick is director of the Goldwater Institute Scharf-Norton Center for Constitutional Litigation.