Justices Cool On “Privileges or Immunities”

In recent months, some legal experts have got awfully excited over the idea that the Supreme Court might decide to incorporate the Second Amendment against the states via the “privileges or immunities” clause of the 14th Amendment. It ain’t gonna happen.  Ultimately, as Justice Antonin Scalia noted at today’s argument in McDonald v. Chicago, it’s a lot easier to use the due process clause instead. That way, the court wouldn’t have to throw out a bunch of prior rulings, including one dating back to 1873 (the Slaughter House Cases).
This exchange between Scalia and Alan Gura, the attorney for the gun rights advocates, kind of sums up the reception the “privileges or immunities” argument got.

Scalia: Is it easier to do it [incorporate the Second Amendment] under privileges and immunities than it is under substantive due process?
Gura: It is easier in terms, perhaps, of — of the text and history of the original public understanding of —
Scalia: No, no. I’m not talking about whether — whether the Slaughter-House Cases were right or wrong. I’m saying, assuming we give, you know, the Privileges and Immunities Clause your definition, does that make it any easier to get the Second Amendment adopted with respect to the States?
Gura: Justice Scalia, I suppose the answer to that would be no, because —
Scalia: Then if the answer is no, why are you asking us to overrule 150, 140 years of prior law?

Scalia ended by asking Gura whether he made the argument because he was “bucking for a place on some law school faculty.”

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Lawrence Hurley

Reporter based in Washington

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