Posted by Jonathan Adler:
*Slaughterhouse* Revisited:
http://volokh.com/archives/archive_2009_02_22-2009_02_28.shtml#1235495542
[1]Tony Mauro reports that liberal groups and law professors, led by
the Constitutional Accountability Center, are supporting gun groups in
their effort to have the Second Amendment incorporated against the
states.
But these academics and the liberal [2]Constitutional
Accountability Center, which filed a brief in the case, have not
suddenly taken up the Second Amendment cause, Charlton
Heston-style. Rather, they joined the case to urge the court to
adopt a new way of making the rights protected by the federal
Constitution apply to the states (a process known as
"incorporation").
That new pathway runs through the long-dormant "privileges or
immunities" clause of the 14th Amendment. In the view of scholars
and historians of all political stripes, the clause provides the
strongest legal foundation for applying the Bill of Rights to the
states. The language -- "No state shall make or enforce any law
which shall abridge the privileges and immunities of citizens of
the United States" -- is broad and clear, advocates say, and could
be used to incorporate the entire Bill of Rights to the states,
wholesale. It would replace the narrower and more piecemeal way in
which the Bill of Rights was usually made binding on the states,
right by right, during the 20th century -- namely, the 14th
Amendment's due process clause.
Reinvigorating the Privileges or Immunities Clause of the 14th
Amendment would require overturning, or severely limiting, the Supreme
Court's 1873 Slaughterhouse decision. Until recently, the only folks
who expressed much interest in challenging Slaughterhouse were folks
on the right, such as the libertarian Institute for Justice. (See
[3]Randy's recent post about one of their recent cases), even though
the weight of academic opinion supports the notion that Slaughterhouse
was wrongly decided. Liberals see the effort as a way to reinforce the
protection of free speech and sexual liberty. Libertarians and some
conservatives, on the other hand, believe recognizing the original
meaning of the Privileges or Immunities Clause would strengthen
constitutional protection of property rights and economic liberties.
Perhaps they're both right -- and perhaps we'll find out.
References
1. http://www.law.com/jsp/article.jsp?id=1202428529045
2. http://theusconstitution.org/
3. http://volokh.com/posts/1234969474.shtml
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