Cert. Stage Amicus -- McDonald v. Chicago

8/3/2019 Cert. Stage Amicus -- McDonald v. Chicago

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No. 08-1521

3 fn ~bt~ up rem e QC ou rtof tbe W n iteb ~ ta te~

OTIS McDoNALD, A D A M ORLOV, COLLEEN LAWSON,DAVID LAWSON, SECOND AMENDMENT FOUNDATION, INC.,

AND ILLINOIS STATE RIFLE ASSOCIATION,Petitioners,v .

CITY OF CHICAGO,Respondent.On Petition For AWrit Of CertiorariTo The United States Court OfAppealsFor The Seventh Circuit

BRIEF OF CONSTITUTIONALLAWPROFESSORSASAMICI CURIAE IN SUPPORT OF PETITIONERS

DOUGLAsT.KENDALLELIZABETH B. WYDRACounsel of RecordDAVID H.GANSCONSTITUTIONALACCOUNTABILITY CENTER1301Connecticut Ave., NWSuite 502Washington, D.C. 20036(202)296-6889Counsel for Amici Curiae

W IL S ON -E pE S P R IN T IN G co., IN C . - (202) 7 89-00 96 - W ASH IN G TO N , D.C . 20002


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TABLE OF CONTENTS

TABLE OF CONTENTS iTABLE OF AUTHORITIES iiiINTEREST OF AMICI CURIAE 1SUMMARY OF ARGUMENT 2ARGUMENT 4THE COURT SHOULD CLARIFY ITSPRIVILEGES OR IMMUNITIES CLAUSEJURISPRUDENCE TOAVOID FURTHERCONFUSION AMONG THE LOWERCOURTS 4A. The Court Should Grant Review ToHarmonize Incorporation Precedent 6

B. The Court Should Grant Review ToHarmonize Its Interpretation Of TheFourteenth Amendment's Privileges OrImmunities Clause With The Clause's Text,History, And Public Meaning 91. Slaughter-House and Cruikshank

Conflict with the Text of the FourteenthAmendment 10

2. Slaughter-House and CruikshankConflict with the History of the Privilegesor Immunities Clause 15

3. Slaughter-House and CruikshankConflict with the Original Public Meaningof the Fourteenth Amendment 24


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TABLEOF CONTENTS-continued

CONCLUSION 27


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1 1 1

TABLE OF AUTHORITIESPage

CasesAdamson v. California,332 U.S. 46 (1947) 7Arver v. United States,245 U.S. 366 (1918) 11Barron v. Baltimore,32 U.S. (7 Pet.) 243 (1833) 18

Benton v.Maryland,395 U.S. 784 (1969) 8Chicago, B. & Q. Ry. Co. v. City of Chicago,166 U.S. 226 (1897) 7Corfield v. Coryell,6 F. Cas. 546 (C.C.E.D. Pa. 1823) 15, 16District of Columbia v. Heller,128 S. Ct. 2783 (2008) passimDred Scott v. Sandford,60 U.S. 393 (1856) 11Duncan v. Louisiana,391 U.S. 145 (1968) 7Gideon v. Wainwright,372 U.S. 335 (1963) 8


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IV

TABLE OFAUTHORITIES-continuedGitlow v. United States,268 U.S. 652 (1925) 7Klopfer v. North Carolina,386 U.S. 213 (1967) 8Livingston v.Moore,32 U.S. 469 (1833) 18Malloy v. Hogan,378 U.S. 1 (1964) 7, 10Mapp v. Ohio,367 U.S. 643 (1961) 7Maxwell v. Dow,176 U.S. 581 (1900) 7Miller v. Texas,153 U.S. 535 (1894) 5, 6, 9Nordyke v. King,563 F.3d 439 (9th Cir. 2009) 5Pointer v. Texas,380 U.S. 400 (1965) 8Presser v. Illinois,116 U.S. 252 (1886) 5, 6Robinson v. California,370 U.S. 660 (1962) 8


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vTABLE OFAUTHORITIES-continued

Slaughter-House Cases,83 U.S. 36 (1873) passimTwining v. New Jersey,211 U.S. 78 (1908) 7United States v. Cruikshank,92 U.S. 542 (1876) passimWashington v. Texas,388 U.S. 14 (1967) 8

Constitutional Provisions and Legislative Materials1Annals of Congress 453 (1789) 25CongoGlobe, 35th Cong., 2d Sess. (1859):p. 983 12

CongoGlobe, 38th Cong., 1st Sess. (1864):pp. 1202-03 19

CongoGlobe, 39th Cong., 1st Sess. (1865):pp. 93-94 22CongoGlobe, 39th Cong., 1st Sess. (1866):p. 40 20p. 340 22pp. 474-75 22p. 516-17 22p. 585 21


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VI

TABLE OFAUTHORITIES-continuedCongoGlobe, 39th Cong., 1st Sess. (1866)

(continued):pp. 588-89 22p. 632 22p. 651 22p. 654 21p. 783 22p. 914 21p. 941 21p. 1072 14pp. 1089-90 18pp. 1123-24 22p. 1160 22p. 1182 23p. 1292 21p. 1617 22p. 1621 22p. 1838 22p. 2765 16,17p.2766 17

CongoGlobe, 42d Cong., 1st Sess. (1871):p. 84 app 18

Report of the Joint Committee on Reconstruction(1866) 23u.s. CONST.art. IV, section 2 16u.s. CONST.amend. XIV, section 1. 11


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Vll

TABLE OFAUTHORITIES-continuedBooks and ArticlesAKHIL REED AMAR, THE BILL OF RIGHTS: CREATIONANDRECONSTRUCTION (1998) passimAkhil Reed Amar, Heller, HLR, and Holistic LegalReasoning, 122 HARV. L. REV. 145 (2008) 14Akhil Reed Amar, Substance and Method in theYear 2000, 28 PEPP. L. REV. 601 (2001) 4Richard L. Aynes, OnMisreading John Binghamand the Fourteenth Amendment, 103YALEL.J. 57(1993) 12, 18Jack M. Balkin, Abortion and Original Meaning,24 CONST. COMMENT. 291 (2007) 10RANDYE.BARNETT, RESTORING THELOSTCONSTITUTION: THE PRESUMPTION OFLIBERTY(2004) 10Randy E.Barnett, The Ninth Amendment: It MeansWhat It Says, 85 TEX. L. REV. 1 (2006) 13Robert J. Cottrol and Raymond T. Diamond,The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 GEO.L.J. 309(1991) 20


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Vlll

TABLE OFAUTHORITIES-continuedMichael Kent Curtis, Historical Linguistics,Inkblots, and Life After Death: The Privileges orImmunities of Citizens of the United States,78 N.C. L.REV. 1071 (2000) 24MICHAEL KENT CURTIS, No STATE SHALLABRIDGE:THE FOURTEENTH AMENDMENT ANDTHE BILL OFRIGHTS (1986) passim

JOHN HART ELY, DEMOCRACYANDDISTRUST: ATHEORY OFJUDICIAL REVIEW (1980) 10ERIC FONER, RECONSTRUCTION:AMERICA'S UNFINISHED REVOLUTION, 1863-1877(1988) 20, 21Michael J. Gerhardt, The Ripple Effects ofSlaughter-House: A Critique of the NegativeRights View of the Constitution,43 VAND. L.REV. 409 (1990) 13Robert Kaczorowski, RevolutionaryConstitutionalism in the Era of the Civil Warand Reconstruction,61 N.Y.U. L.REV. 863 (1986) 19BENJAMIN B. KENDRICK, THE JOURNAL OF THE JOINTCOMMITTEE ONRECONSTRUCTION (1914) 22LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAw(2000) 10


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IX

TABLE OFAUTHORITIES-continuedBryan H. Wildenthal, Nationalizing the Bill ofRights: Revisiting the Original Understanding ofthe Fourteenth Amendment in 1866-67,68 OHIOST. L.J. 1509 (2007) 16,26


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INTEREST OF AMICI CURIAEI

Each of the amici curiae is a law professor whohas published a book or law review article on theFourteenth Amendment and the Bill of Rights.Certain of amici's relevant publications are cited inthis brief. Amici are:

Prof. Richard L. AynesUniversity ofAkron Law SchoolProf. Jack M. BalkinYale Law School

Prof. Randy E.BarnettGeorgetown University Law CenterProf. Michael K. CurtisWake Forest University Law SchoolProf. Michael A. LawrenceMichigan State University College of LawProf. Adam WinklerUCLA School ofLaw

1Counsel for all parties received notice at least 10days priorto the due date ofamici's intention to file this brief; all partieshave consented to the filing of this brief. Under Rule 37.6 ofthe Rules ofthis Court,amici state that no counsel for a partyauthored this brief in whole or in part, and no counselorparty made a monetary contribution intended to fund thepreparation or submission of this brief. No person other thanamici or their counsel made a monetary contribution to itspreparation or submission.


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2Amici submit this brief to bring to the

foreground of this case a remarkable scholarlyconsensus and well-documented history that showsthat the Privileges or Immunities Clause of theFourteenth Amendment was intended to protectsubstantive, fundamental rights, including theindividual right to keep and bear arms at issue inthis case.

Amici do not, in this brief, take a position onwhether the particular regulation challenged inthis case is constitutional in light of the individualprivilege to bear arms, which, as the Court noted inDistrict of Columbia v. Heller, 128S. Ct. 2783,2816(2008),may be regulated to a certain extent.

SUMMARY OF ARGUMENT

The McDonald petitioners have asked thisCourt to grant certiorari to review the UnitedStates Court of Appeals for the Seventh Circuit'sruling that the Second Amendment's individualright to keep and bear arms is not incorporatedagainst the States. Both the court below and theSecond Circuit have explained that, while thereasonmg of 19th century anti-incorporationprecedent has been undermined, it is theprerogative of this Court to authoritativelyproclaim the current irrelevance of this line ofprecedent. Amici urge the Court to grant review inthis case to clarify its incorporation jurisprudence,and, in particular, precedent that hasinappropriately turned the FourteenthAmendment's Privileges or Immunities Clause-aClause that was written to be the centerpiece of the


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314th Amendment-intoafterthought.

a constitutional

The textually and historically accurateapproach to determining whether the FourteenthAmendment protects an individual right to keepand bear arms is to look to the Amendment'sPrivileges or Immunities Clause. However, theSlaughter-House Cases, 83 U.S. 36 (1873), read thePrivileges or Immunities Clause so narrowly as torender it practically meaningless--completelyignoring the contrary text, history and purpose ofthe Fourteenth Amendment. Moreover, Slaughter-House and its progeny stand for the propositionthat the Fourteenth Amendment does not apply theBill of Rights to the States. See, e.g., United Statesv. Cruikshank, 92U.S. 542 (1876) (holding that theFirst and Second Amendments do not apply to theStates). While this line of precedent has been socompletely undermined by subsequent SupremeCourt incorporation decisions that there no longerremains any justification for its continuedapplication, the lower courts will continue to hew tothese precedents, as the Seventh Circuit did below,absent clarification from this Court.

This case presents the Court with a uniqueopportunity to re-examine Slaughter-House andCruikshank and properly cabin the reach of thosecases. The history here is clear. The framers of theFourteenth Amendment sought to constitutionallyprotect an individual right to keep and bear armsagainst state infringement, in large part becausethey wanted the newly freed slaves and unioniststo have the means to protect themselves, their


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4families and their property against well-armedformer rebels. The history also shows that thePrivileges or Immunities Clause was intended to-and understood to-protect this right.

Reviving the Privileges or Immunities Clauseand limiting Slaughter-House and its progenywould bring this Court's jurisprudence in line withconstitutional text and a near-unanimous scholarlyconsensus on the history and meaning of theClause. Slaughter-House read the Privileges orImmunities Clause so narrowly as to essentiallyread it out of the Amendment, but "[v]irtually noserious modern scholar-left, right, and center-thinks that this is a plausible reading of theAmendment." Akhil Reed Amar, Substance andMethod in the Year 2000,28 PEPP.L. REV.601, 631n.178 (2001). Certiorari is necessary here becausethe Seventh Circuit "has decided an importantquestion of federal law that has not been, butshould be, settled by this Court." S. Ct. Rule 10(c).

ARGUMENT

THE COURT SHOULD CLARIFY ITSPRIVILEGES OR IMMUNITIES CLAUSEJURISPRUDENCE TO AVOID FURTHERCONFUSION AMONG THE LOWERCOURTS.

In declining to hold that the States mustrespect an individual right to keep and bear arms,the Seventh Circuit followedthis Court's rulings inUnited States v. Cruikshank, 92 U.S. 542 (1876),Presser v. Illinois, 116 U.S. 252 (1886), and Miller


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5v. Texas, 153 U.S. 535 (1894), which "rejectedarguments that depended on the privileges andimmunities clause of the fourteenth amendment."Pet. App. 2. Similarly, the Ninth Circuit, whilerecently finding incorporation of such a right underthe Due Process Clause, explained that the courtwas "barred from considering incorporationthrough the Privileges or Immunities Clause,"Nordyke v. King, 563 F.3d 439, 446 (9th Cir. 2009)(citing Slaughter-House Cases, 83U.S. 36 (1873.

The courts of appeals followed theseprecedents despite acknowledging that thedecisions' anti-incorporation reasoning appears tobe outdated and that "judges and academics havecriticized Slaughter-House's reading of thePrivileges or Immunities Clause." Id. at 447 n.5.The confusion of the lower courts is evident: as theSeventh Circuit explained, "[a]lthough therationale of Cruikshank, Presser, and Miller isdefunct, the Court has not telegraphed any plan tooverrule Slaughter-House" and "[h]ow the secondamendment will fare under the Court's selective(and subjective) approach to incorporation is hardto predict." Pet. App. 6.

Amici urge the Court to grant certiorari toclarify the reach of Slaughter-House, Cruikshank,Presser, and Miller and bring Privileges orImmunities Clause jurisprudence up to date withmodern understandings of incorporation under theFourteenth Amendment and back in line withconstitutional text and history.


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6A. The Court Should Grant Review ToHarmonize Incorporation Precedent.The primary source of the lower courts'

confusion as to whether Slaughter-House,Cruikshank, Presser, and Miller remain bindinglaw on the question of incorporation is the outdatedreasoning ofthose decisions.

After Heller, there can be no further doubtthat the Constitution protects an individual right tokeep and bear arms in self-defense, subject tocertain limitations, against federal infringement.The question is now whether such a right may berecognized to protect against state infringement.The Seventh Circuit and the Second Circuitunderstood Slaughter-House, Cruikshank, Presser,andMiller to preclude incorporation ofsuch a right,and considered these cases binding law absentclarification from the Court.

The Court has already acknowledged thatthere is a tension between these precedents andmodern incorporation doctrine. In Heller, theCourt noted that:

With respect to Cruikshank's continuingvalidity on incorporation, a question notpresented by this case, we note thatCruikshank also said that the FirstAmendment did not apply against theStates and did not engage in the sort ofFourteenth Amendment inquiry requiredby our later cases. Our later decisions inPresser v. Illinois and Miller v. Texas


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7reaffirmed that the Second Amendmentapplies only to the Federal Government.

District of Columbia v. Heller, 128 S. Ct. 2783, 2813n.23 (2008).

Modern incorporation doctrine similarlyconflicts with Slaughter-House. In overrulingearlier cases such as Maxwell v. Dow, 176U.S. 581(1900), Twining v. New Jersey, 211 U.S. 78 (1908),and Adamson v. California, 332U.S. 46 (1947),2theCourt has already rejected the foundation uponwhich Slaughter-House was built-the idea thatthe Fourteenth Amendment did not fundamentallychange the balance of federal/state power and thatAmericans should look to state governments for theprotection of their rights, save only those few rightsconnected to the workings of the federalgovernment or the Union. In cases incorporatingand applying against the States nearly all of theprotections in the Bill of Rights, the Courtrepudiated Slaughter-Hause's conception offederalism and encouraged citizens to look to thefederal government for the protection of a long listof fundamental rights." The reasonmg of

2 E.g., Malloy v. Hogan, 378 U.S. 1, 5-7 (1964) (overrulingTwining and Adamson and applying Fifth Amendment rightagainst self-incrimination to the States); Duncan v.Louisiana, 391 U.S. 145, 154-55 (1968) (rejecting dicta inMaxwell, which refused to apply the Sixth Amendment juryright to the States).3 E.g., Chicago, B. & Q. Ry. Co. v. City of Chicago, 166 U.S.226 (1897) (applying to the States the Fifth Amendment rightagainst uncompensated takings); Gitlow v. New York, 268U.S. 652 (1925) (First Amendment free speech);Mapp v. Ohio,


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8Slaughter-House simply cannot be squared withthis long line ofincorporation precedent.

Even if the Court does not expressly overruleSlaughter-House, as urged by the Petitioner, e.g.,Pet. at 4, 22, the Court should clarify thatSlaughter-Hause's general interpretation of thePrivileges or Immunities Clause is mere dicta.This dicta, rooted in an ahistoric and now discardedinterpretation of the Fourteenth Amendment, doesnot preclude incorporation of an individual right tokeep and bear arms under the Clause. After all,the Slaughter-House majority expressly "excused"itself from "defining the privileges and immunitiesof citizens of the United States which no State canabridge, until some case involving those privilegesmay make it necessary to do so." 83 U.S. at 78-79.4

367 U.S. 643 (1961) (Fourth Amendment guarantee againstunreasonable search and seizure); Benton v. Maryland, 395U.S. 784 (1969) (Fifth Amendment right against doublejeopardy); Gideon v. Wainwright, 372 U.S. 335 (1963) (SixthAmendment right to counsel);Klopfer v. North Carolina, 386U.S. 213 (1967) (Sixth Amendment right to speedy trial);Pointer v. Texas, 380U.S. 400 (1965)(SixthAmendment rightto confront witnesses); Washington v. Texas, 388 U.S. 14(1967) (Sixth Amendment right to compulsory process toobtain witnesses);Robinson v. California, 370U.S. 660 (1962)(EightAmendment ban on cruel and unusual punishment).4 The actual decision in Slaughter-House is noncontroversial:the Court rejected petitioners' claim that the Louisianalegislature had violated their fundamental rights ofcitizenship by granting to a single slaughtering company amonopoly on the location where animals could be butcheredwithin the city of New Orleans. But in the process of findingthe challenged restrictions justified by the health risks ofbutchering, the Slaughter-House five-Justice majority


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In Heller, the Court identified the outmodedreasoning of Cruikshank. Amici urge the Court totake the next logical step and grant review in thiscase to provide definitive guidance to the lowercourts regarding the continuing validity ofSlaughter-House, Cruikshank, Presser, andMiller.

B. The Court Should Grant Review ToHarmonize Its Interpretation Of TheFourteenth Amendment's PrivilegesOr Immunities Clause With TheClause's Text, History, And PublicMeaning.

While the primary source of the lower courts'confusion is the clash between outdated cases likeSlaughter-House and Cruikshank and modernincorporation precedent, there is also a deepconflict between the Court's interpretation of theFourteenth Amendment in Slaughter-House andCruikshank and the Constitution's text and history.

"The Court has not hesitated to re-examinepast decisions according the FourteenthAmendment a less central role than that which wascontemplated by its framers when they added the

questioned how much the Fourteenth Amendment changedthe federal/state balance and suggested that the Privileges orImmunities Clause could be read so narrowly as to protectonly rights attendant to national citizenship, such as the rightto access navigable waters, with most fundamental rightsprotected at the discretion ofthe States. Id. at 74-75.


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10Amendment to our constitutional scheme." Malloy,378 U.S. at 5. Should the Court grant certiorari, itis the intent of amici to place before the Court thework of a host of leading constitutional scholarswho agree that Slaughter-House' s interpretation ofthe Fourteenth Amendment's Privileges orImmunities Clause is wrong as a matter of text andhistory. 5 TheMcDonald petition presents an idealopportunity for the Court to grant review and re-examine the Privileges or Immunities Clause andits promise of protection for substantive,fundamental rights because it is clear that one ofthe privileges covered by the Clause is theindividual right to keep and bear arms at issue inthis case.

1. Slaughter-House and Cruikshank Conflictwith the Text of the FourteenthAmendment.

Proposed in 1866 and ratified in 1868, theFourteenth Amendment was designed to makeformer slaves into equal citizens in the newrepublic, securing for the nation the "new birth offreedom" President Lincoln promised atGettysburg. In two short sentences, Section One ofthe Fourteenth Amendment wrote equal citizenship5 See, e.g., JOHN HART ELY, DEMOCRACY AND DISTRUST: ATHEORY OF JUDICIAL REVIEW 22-30 (1980); AKHIL REED AMAR,THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 163-230(1998); LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW, 7-6, at 1320-31 (2000); RANDY E. BARNETT, RESTORING THELOST CONSTITUTION: THE PRESUMPTION OF LIBERTY 191-203(2004); Jack M. Balkin, Abortion and Original Meaning, 24CONST. COMMENT. 291, 313-15, 317-18 (2007).


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11into our constitutional design, mandating that theStates abide by fundamental constitutionalprinciples of liberty, equality, and fairness. Itswords provide:

All persons born or naturalized in theUnited States, and subject to thejurisdiction thereof, are citizens of theUnited States and of the State whereinthey reside. No State shall make orenforce any law which shall abridge theprivileges or immunities of citizens of theUnited States; nor shall any Statedeprive any person of life, liberty, orproperty, without due process of law; nordeny to any person within its jurisdictionthe equal protection of the laws.

U.S. CONST.amend. XIV,section 1.The openmg words of the Fourteenth

Amendment announce a new relationship betweenfederal and state governments and between thepeople and their Constitution. By affirming U.S.citizenship as a birthright and declaring federalcitizenship "paramount and dominant instead ofbeing subordinate and derivative," Arver v. UnitedStates, 245 U.S. 366, 389 (1918), the Amendmentmarked a dramatic shift from pre-war conceptionsoffederalism and overruled Dred Scott v. Sandford,60 U.S. (19 How.) 393 (1856), which held that aformer slave was not a U.S. citizen under theConstitution because ofhis race.


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The framers of the Fourteenth Amendmentmade sure that the full and equal citizenship theyestablished in the first words of Section One was noempty promise. In the Privileges or ImmunitiesClause, they explicitly guaranteed that citizenswould enjoy all fundamental rights and liberties:"the privileges or immunities of citizens of theUnited States."6

As crafted, the Privileges or ImmunitiesClause was meant to secure the substantiveliberties protected by the Bill of Rights, as well asunwritten fundamental rights. Leading proponentsand opponents alike of the Fourteenth Amendmentunderstood the words of the Clause to protectsubstantive fundamental rights-including therights enumerated in the Constitution and Bill ofRights.6 This focuson full and equal citizenship did not mean that theReconstruction framers were unconcerned with the rights ofnon-citizens. John Bingham, principal author of theFourteenth Amendment, believed that no state could violatethe Constitution's "wise and beneficent guarantees of politicalrights to the citizens of the United States, as such, and ofnatural rights to all persons, whether citizens or strangers."CongoGlobe, 35th Cong., 2d Sess. 983 (1859). As explained byProfessor Akhil Amar, the "privileges-or-immunities clausewould protect citizen rights, and the due-process and equal-protection principles (which Bingham saw as paired if notsynonymous) would protect the wider category of persons."AMAR,t 182. See also Richard L.Aynes, OnMisreading JohnBingham and the Fourteenth Amendment, 103YALEL.J. 57, 68(1993) ("An examination of the language of the proposedAmendment shows that its 'privileges and immunities' clausewould apply only to citizens, whereas its 'life, liberty, andproperty' clause would apply more expansively to 'allpersons."').


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The framers of the Fourteenth Amendmentacted against a historical backdrop that requiredthem to protect at least the liberties of the Bill ofRights: they were keenly aware that southernstates had been suppressing some of the mostprecious constitutional rights of both freed slavesand unionists. See AMAR,BILLOFRIGHTS,at 160.Starting around 1830, southern states had begunenacting laws restricting freedom of speech andpress to suppress anti-slavery speech, evencriminalizing such expression; in at least one state,writing or publishing abolitionist literature waspunishable by death. Id. at 161; MICHAELKENTCURTIS, No STATE SHALL ABRIDGE: THEFOURTEENTHMENDMENTNDTHEBILLOFRIGHTS30, 40 (1986). Political speech was repressed aswell, and Republicans could not campaign for theircandidates in the South. Id. at 31. To preventstates from continuing to violate some of the corerights of our original Constitution, the FourteenthAmendment framers added the Privileges orImmunities Clause to the Constitution.

In addition to providing the textual basis forprotection of the liberties in the Bill of Rights, theClause is "the natural textual home for . . .unenumerated fundamental rights." Michael J.Gerhardt, The Ripple Effects of Slaughter-House: ACritique of the Negative Rights View of theConstitution, 43 VAND.L. REV.409, 449 (1990). Itmimics the Ninth Amendment, which provides thatthere are rights protected by the Constitution notspelled out in the text. See Randy E.Barnett, TheNinth Amendment: It Means What It Says, 85 TEX.


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14L. REV. 1 (2006). As one member of theReconstruction Congress observed during thedebates on the Fourteenth Amendment:

In the enumeration of natural andpersonal rights to be protected, theframers of the Constitution apparentlyspecified everything they could think of -"life," "liberty," "property," "freedom ofspeech," "freedom of the press," "freedomin the exercise of religion," "security ofperson," &c; and then lest somethingessential in the specifications should havebeen overlooked, it was provided in theninth amendment that "the enumerationin the Constitution of certain rightsshould not be construed to deny ordisparage other rights not enumerated."This amendment completed thedocument. It left no personal or naturalright to be invaded or impaired byconstruction. All these rights areestablished by the fundamental law.

CongoGlobe, 39th Cong., 1st Sess. 1072 (1866) (Sen.Nye).77 Onepreeminent constitutional scholar has suggested that theindividual right to keep and bear arms, unconnected to militiaservice, at issue in both Heller and this case may have more todo with the Ninth and Fourteenth Amendments than thewords of the Second Amendment. See Akhil Reed Amar,Heller, HLR, and Holistic Legal Reasoning, 122HARV.L. REV.145, 174-77(2008). Regardless ofwhether the individual rightto bear arms is protected against state infringement byincorporating the Second Amendment through the Fourteenth


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Accordingly, the Privileges or ImmunitiesClause is the textual hook in the FourteenthAmendment for protection of unenumeratedfundamental rights, as well those substantivefundamental rights articulated in the Bill ofRights,including the SecondAmendment right to keep andbear arms.

2. Slaughter-House and Cruikshank Conflictwith the History of the Privileges orImmunities Clause.The debates in Congress confirmwhat the text

of the Fourteenth Amendment provides: thePrivileges or Immunities Clause securessubstantive fundamental constitutional rights. Inparticular, the Clause secures against stateinfringement an individual, substantive right tokeep and bear arms for defense of hearth andhome.

Senator Jacob Howard, speaking on behalf ofthe Joint Committee on Reconstruction, offered themost comprehensive analysis of the Privileges orImmunities Clause in the Senate debates on theAmendment. Relyingheavily on Corfield v. Coryell,6 F. Cas. 546 (C.C.E.D. Pa. 1823), an influential

Amendment or by looking to an unenumerated right to defendperson and property protected by the Ninth and FourteenthAmendments, the textual home for the guaranteed protectionof that substantive right is the Privileges or ImmunitiesClause.


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161823 decision interpreting the Privileges andImmunities Clause contained in Article IV, SectionTwo of the Constitution," Sen. Howard made clearthat the Privileges or Immunities Clause of theFourteenth Amendment would afford broadprotections to substantive liberty, encompassing all"fundamental" rights enjoyed by "citizens of all freeGovernments": "protection by the government, theenjoyment of life and liberty, with the right toacquire and possess property of every kind, and topursue and obtain happiness and safety, subjectnevertheless to such restraints as the Governmentmay justly prescribe for the general good of thewhole." Congo Globe, 39th Cong., 1st Sess. 2765(1866) (quoting Corfield, 6 F. Cas. at 551).

Sen. Howard also made clear that thesesubstantive "privileges or immunities" includedthose liberties protected by the Bill of Rights. SeeBryan H. Wildenthal, Nationalizing the Bill ofRights: Revisiting the Original Understanding ofthe Fourteenth Amendment in 1866-67, 68 OHIO ST.L.J. 1509, 1562-63 (2007). He noted the "privilegesand immunities" of citizens "are not and cannot befully defined in their entire extent and precisenature," but to these unenumerated rights

should be added the personal rightsguaranteed and secured by the first eightamendments of the Constitution; such asthe freedom of speech and of the press;

8 Article IV, Section Two provides: "The citizens of each Stateshall be entitled to all Privileges and Immunities of Citizens inthe several States."


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17the right of the people peaceably toassemble and petition the Governmentfor a redress of grievances, a rightpertaining to each and all of the people;the right to keep and bear arms; the rightto be exempted from the quartering ofsoldiers in a house without consent of theowner; the right to be exempt fromunreasonable searches and seizures, andfrom any search or seizure except byvirtue of a warrant issued upon a formaloath or affidavit; the right of an accusedperson to be informed of the nature of theaccusation against him, and his right tobe tried by an impartial jury of thevicinage; and also the right to be secureagainst excessive bail and against crueland unusual punishments .. . . [T]hese guarantees ...stand simply asa bill of rights in the Constitution ... [and]States are not restrained from violatingthe principles embraced in them ....Thegreat object of the first section of thisamendment is, therefore, to restrain thepower of the States and compel them atall times to respect these greatfundamental guarantees.

CongoGlobe, 39th Cong., 1st Sess. 2765-66 (1866)(emphasis added).

Representative John Bingham, the principalauthor of Section One of the FourteenthAmendment, also made it abundantly clear that the


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18substantive privileges and immunities of citizensencompassed the liberties set forth in the Bill ofRights. In explaining why the FourteenthAmendment was necessary, Bingham cited theSupreme Court's opinions in Barron v. Baltimore,32 U.S. (7 Pet.) 243 (1833), and Livingston v.Moore, 32 U.S. 469 (1833), both of which held thatthe Bill of Rights did not apply to the states. CongoGlobe, 39th Cong., 1st Sess. 1089-90 (1866).Bingham retained this understanding of what thePrivileges or Immunities Clause protected. In1871, after the ratification of the FourteenthAmendment, he explained:

[T]he privileges or immunities of citizensof the United States, ascontradistinguished from citizens of aState, are chiefly defined in the first eightamendments to the Constitution of theUnited States. Those eight amendmentsare as follows. [Bingham read the firsteight amendments word for word.] Theseeight articles I have shown never werelimitations upon the power of the States,until made so by the fourteenthamendment.

CongoGlobe, 42d Cong., 1st Sess. 84 app. (1871).See generally Aynes, 103YALE. L.J. at 74.

Other prominent members of theReconstruction Congress shared the same view ofthe privileges and immunities of nationalcitizenship held by Sen. Howard and Rep.Bingham. For example, prior to the drafting of the


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19Fourteenth Amendment, Representative JamesWilson, chairman of the House JudiciaryCommittee, stated that "[t]he people of the freeStates should insist on ample protection to theirrights, privileges and immunities, which are noneother than those which the Constitution wasdesigned to secure to all citizens alike." CongoGlobe, 38th Cong., 1st Sess. 1202-03 (1864). SeeCURTIS,t 37-38.

Accordingly, the most influential andknowledgeable members of the ReconstructionCongress went on record with their express beliefthat the Privileges or Immunities Clause of theFourteenth Amendment protected against stateinfringement substantive, fundamental rights,including the liberties secured by the first eightarticles of the Bill of Rights. Not a single Senatoror Representative disputed this understanding ofthe privileges and immunities of citizenship orSection One. See, e.g., AMAR,BILLOF RIGHTS,at187; CURTIS, at 91; Robert Kaczorowski,Revolutionary Constitutionalism in the Era of theCivil War and Reconstruction, 61 N.Y.U. L. REV.863, 932 (1986). To the contrary, whether indebates over the Fourteenth Amendment or itsstatutory analogue, the Civil Rights Act of 1866,speaker after speaker affirmed two central points:the Privileges or Immunities Clause wouldsafeguard the substantive liberties set out in theBill of Rights, and that, in line with Corfield, theClause would give broad protection to substantiveliberty, safeguarding all the fundamental rights ofcitizenship.


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20Particularly relevant to the McDonald petition

is the history of the Clause that shows that anindividual right to keep and bear arms was amongthe privileges and immunities of citizens protectedagainst state infringement under the FourteenthAmendment.

The framers of the Fourteenth Amendmentwere particularly concerned with the right offreedmen to bear arms. See Robert J. Cottrol andRaymond T. Diamond, The Second Amendment:Toward an Afro-Americanist Reconsideration, 80GEO.L.J. 309, 346 (1991). The efforts to disarmfreed slaves "played an important part inconvincing the 39th Congress that traditionalnotions concerning federalism and individual rightsneeded to change." Id. As constitutional historianshave noted, "Reconstruction Republicans recastarms bearing as a core civil right. . . . Arms wereneeded not as part of political and politicizedmilitia service but to protect one's individualhomestead." AMAR,BILLOFRIGHTS,258-59. Infact, far from fulfilling the Founders' vision of statemilitias as bulwarks of liberty, various southernmilitias perpetrated rights deprivations in theSouth: "Confederate veterans still wearing theirgray uniforms, ... frequently terrorized the blackpopulation, ransacking their homes to seizeshotguns and other property and abusing thosewho refused to sign plantation labor contracts."ERIC FONER, RECONSTRUCTION:AMERICA'SUNFINISHEDREVOLUTION,863-1877 203 (1988).See also CongoGlobe, 39th Cong., 1st Sess. 40 (1866)(Sen. Wilson) ("In Mississippi rebel State forces,men who were in the rebel armies, are traversing


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21the State, visiting the freedmen, disarming them,perpetrating murders and outrages upon them");id. at 914, 941 (Letter from Colonel SamuelThomas to Major General 0.0. Howard, quoted bySens. Wilson and Trumbull) ("Nearly all thedissatisfaction that now exists among the freedmenis caused by the abusive conduct of [the state]militia.").

Central in the minds of the framers were theBlack Codes, the South's post-war attempt to re-institutionalize slavery in a different guise." TheBlack Codes systematically violated theconstitutional rights of the newly freed slaves inmyriad ways, including by prohibiting the formerslaves from having their own firearms. See FONER,at 199-201; CURTIS,No STATESHALLABRIDGE,at

9 The Reconstruction Congress first acted to explicitly protectthe right of the freedmen to keep and bear arms in the re-enacted Freedman's Bureau BilL Seeking to prevent the BlackCodes from perpetuating the wrongs of slavery, the billprovided that African Americans should have "the full andequal benefit of all laws and proceedings for the security ofperson and property, including the constitutional right ofbearing arms." CongoGlobe, 39th Cong, 1st Sess. at 654, 743,1292 (Rep. Bingham) (emphasis added). See also id. at 654(Rep. Eliot) (proposing the addition of the words "including theconstitutional right to bear arms"); id. at 585 (Rep. Banks)(stating his intent to modify the bill so that it explicitlyprotected "the constitutional right to bear arms"). Becausethere was some question overwhether Congress had the powerto enforce against the states the protections ofthe Bill ofRightsand the fundamental rights articulated in Reconstruction civilrights legislation, the 39th Congress proposed the FourteenthAmendment, which made explicit the constitutional guaranteeoffundamental rights against state infringement.


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2235.10 See also Heller, 128 S. Ct. at 2841 (notingthat "[b]lacks were routinely disarmed by SouthernStates after the Civil War" and that opponents of"these injustices frequently stated that theyinfringed blacks' constitutional right to keep andbear arms"). These abuses were investigated andreported to Congress by the Joint Committee onReconstruction, composed of members of both theHouse and Senate (including Sen. Howard and Rep.Bingham). The Joint Committee drafted theFourteenth Amendment in Congress, and thustheir findings bear directly on the Amendment theyconstructed. The Committee's conclusions, issuedin a June 1866 report, were also distributed widelythroughout the country-150,OOO copies wereissued. See BENJAMINB. KENDRICK,THEJOURNALOFTHEJOINTCOMMITTEENRECONSTRUCTION65(1914). The Joint Committee's report confirmedthrough an exhaustive fact-finding effort thesystematic violation of constitutional rights in theSouth and the need for guaranteeing basic humanand civil rights.

On the issue of the right to bear arms theJoint Committee reported testimony that, in theSouth, "[a]ll of the people ... are extremely reluctantto grant to the negro his civil rights-thoseprivileges that pertain to freedom, the protection oflife, liberty, and property," and noted that "[t]he

10 For discussions of the Black Codes in Congress, see CongoGlobe, 39th Cong., 1st Sess. 9394 (1865); id. at 340 (1866); id. at474-75; id. at 516-17; id. at 588-89; id. at 632; id. at 651; id. at783; id. at 1123-24; id. at 1160; id. at 1617; id. at 1621; id. at1838.


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23planters are disposed to insert into their contractstyrannical provisions to prevent the negroes fromleaving the plantation ...or to have fire-arms intheir possession." REPORTOFTHEJOINTCOMMITTEEONRECONSTRUCTIONt. II, 4 and Pt. II, 240 (1866).Members of the Reconstruction Congress echoedthese concerns. Senator Pomeroy explained thatthe newly freed slaves should be guaranteed the"essential safeguards of the Constitution,"including the right of bearing arms, and noted thatsouthern states had denied African Americans theright to keep and bear arms. 39th CongoGlobe, 1stSess. at 1183, 1837-38. Sen. Pomeroy expresslylisted as one of the constitutional "safeguards ofliberty" the "right to bear arms for the defense ofhimself and family and his homestead." CongoGlobe, 39th Cong., 1st Sess. 1182 (1866).Representative Eliot decried a Louisiana ordinancethat prevented freedmen not in the military frompossessing firearms within town limits withoutspecial written permission from an employer. Id.at 517. Finally, Sen. Howard defined the privilegesor immunities of citizenship protected by theAmendment to include "the personal rightsguaranteed and secured by the first eightamendments of the constitution ....such as....theright to keep and bear arms." Id. at 2765. See alsoid. at 1073 (Sen. Nye) ("As citizens of the UnitedStates, [the freedmen] have equal right toprotection, and to keep and bear arms for selfdefense.")

In short, Reconstruction legislative historyunequivocally demonstrates that an individualright to keep and bear arms was one of the rights to


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24be protected by the Privileges or ImmunitiesClause.

3. Slaughter-House and Cruikshank Conflictwith the Original Public Meaning of theFourteenth Amendment.

There is substantial historical support forreading the words "privileges" and "immunities" toinclude the liberties in the Bill of Rights. Thewords privileges and immunities had beenextensively used to describe basic Bill of Rightsliberties (and their English predecessors) in theyears before the framing and ratification of theFourteenth Amendment, and that meaning appearsto have been widely understood. See, e.g., MichaelKent Curtis, Historical Linguistics, Inkblots, andLife After Death: The Privileges or Immunities ofCitizens of the United States, 78 N.C. L. REV.1071(2000).

From our very beginnings, Americans used thewords "privileges" and "immunities"interchangeably with words like "rights" or"liberties." See AMAR,BILLOF RIGHTS,at 166-69;Curtis, Historical Linguistics, 78 N.C. L. REV.at1094-1136. As Professor Curtis has noted,"Blackstone's Commentaries on the Laws ofEngland, published in the colonies on the eve of theRevolution, had divided the rights and liberties ofEnglishmen into those 'immunities' that were theresiduum of natural liberties and those 'privileges'that society had provided in lieu of natural rights."CURTIS,No STATESHALLABRIDGE,at 64. InBlackstone's Commentaries, "the words privileges


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25

and immunities [were] used to describe variousentitlements embodied in the landmark Englishcharters of liberty of Magna Charta, the Petition ofRight, the Habeas Corpus Act, the English Bill ofRights of 1689, and the Act of Settlement of 1701."AMAR,BILL OF RIGHTS,at 169. Most of theseliberties of Englishmen would later be enshrined inthe American Bill of Rights, and they continued tobe thought of as the privileges or immunities ofcitizens. CURTIS,No STATESHALLABRIDGE,t 64.

For example, when James Madison proposedthe Bill of Rights in Congress, he spoke of the"freedom of the press" and "rights of conscience" asthe "choicest privileges of the people," and includedin his proposed Bill a provision restraining theStates from violating freedom of expression and theright to jury trial because "State governments areas liable to attack these invaluable privileges as theGeneral Government is...." 1 Annals of Congress453, 458 (1789); see also id. at 766 (discussing theproposed Bill of Rights as "securing the rights andprivileges of the people ofAmerica").

This long-standing understanding of privilegesand immunities appears to have held sway at thetime of our Second Founding, as well. Certainly, asdescribed above, the drafters of the FourteenthAmendment "used the words privileges andimmunities as a shorthand description offundamental or constitutional rights." CURTIS,NoSTATESHALLABRIDGE,at 64. In the ratificationdebates in the States, several governors "seem tohave treated the words rights as equivalent to thewords privileges or immunities." Id. at 146.


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26

The general public was well aware that theFourteenth Amendment was intended to protectthe liberties of the Bill of Rights and otherfundamental rights against state infringement.Sen. Howard's speech explaining that thePrivileges or Immunities Clause included at leastthe rights guaranteed by the first eightamendments in the Bill of Rights "was reprinted asfront page news the next day in the New YorkTimes." Wildenthal, Nationalizing the Bill ofRights, 68 OHIO ST.L.J. at 1564. In addition, "[a]tleast four other major papers apparently coveredthe relevant parts of Howard's speech: thePhiladelphia Inquirer, the Washington, D.C.National Intelligencer, the front page of the NewYork Herald, and, with slight ambiguity, the frontpage of the Boston Daily Advertiser." Id. In short,"[t]he newspaper coverage of the Bingham andHoward speeches provides substantial evidencethat the national body politic, during 1866-68,wasplaced on fair notice about the incorporationistdesign ofthe Amendment." Id. at 1590.

***The lower courts have applied precedent to

preclude incorporation of an individual right tobear arms under the Privileges or ImmunitiesClause. While acknowledging that this precedentruns counter to scholarly consensus and modernviews of incorporation, the courts have consideredthemselves bound to follow these outdated casesuntil this Court declares otherwise. Because caseslike Slaughter-House and Cruikshank are contrary


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27to modern lines of precedent and establishedconstitutional text and history, the Court shouldgrant review to re-align Privileges or ImmunitiesClause jurisprudence and settle the question forthe lower courts.

CONCLUSION

Amici urge the Court to grant certiorari andrestore the Privileges or Immunities Clause of theFourteenth Amendment to its intended place in ourconstitutional order.

Respectfully submitted,DOUGLAS T. KENDALLELIZABETH B. WYDRACounsel of Record

DAVID H. GANSCONSTITUTIONALACCOUNTABILITY CENTER1301Connecticut Ave. NWSuite 502Washington, D.C. 20036(202)296-6889

Counsel for Amici CuriaeJuly 2009


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Cert. Stage Amicus -- McDonald v. Chicago

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