Next week, I will be giving my talk on "Was Lochner Right? Natural Rights and the Fourteenth Amendment" at Georgetown Law on Tuesday at noon and at GMU Law on Thursday at 5pm. In my talk, I explain the original meaning of the Privileges or Immunities Clause and its connection to the Ninth Amendment. In response, people are very curious as to whether whether I think there is any chance for a revival of the Privileges or Immunities Clause in the Supreme Court. My answer is that we stand poised on the threshold of a possible shift when the constitutionality of state restrictions of the right to keep and bear arms is confronted by the Court in the wake of DC v. Heller. The evidence is overwhelming that the Privileges or Immunities of Citizens of the United States included a personal right to keep and bear arms. Indeed, the evidence that the right protected by the original meaning of the Fourteenth Amendment was personal and individual is even stronger and less impeachable than it is with the Second Amendment. And all the historical evidence concerning a right to keep and bear arms that exists concerns the Privileges or Immunities Clause, not the Due Process Clause.

Moreover, since the path breaking work by Michael Kent Curtis appeared in the 1980s, there has formed a remarkable scholarly consensus among those familiar with the historical record, and this consensus is entirely nonideological. Indeed, on February 4, 2009, the self-described "progressive" Constitutional Accountability Center filed a brief in the consolidated case of McDonald, et al., and National Rifle Association of America, Inc., et al., v. City of Chicago, et al., and Village of Oak Park, now pending in the Seventh Circuit, arguing that the individual right to bear arms recognized in District of Columbia v. Heller, is "incorporated" against state action via the Privileges or Immunities Clause of the 14th Amendment. CAC's brief (available here) was filed on behalf of professors Richard Aynes, Jack Balkin, Michael Kent Curtis, and Michael A. Lawrence. Their brief speaks only to the incorporation issue and did not argue that the challenged gun regulations are unconstitutional.

The CAC maintains that a close attention to "text and history" leads to progressive results and that conservative renditions of original meaning have been too cramped. There is much to be said on behalf of this stance, which I anticipated in my 1999 article entitled, "An Originalism for Nonoriginalists." While some may object that this is not "really" originalism, in my experience at least part of this objection is based on results not method. I do think some conservative readings of the original meaning of the text have been distorted to reach certain results. And where inconvenient original meaning is conceded--for example, with the Ninth Amendment--the argument then immediately shifts to nonoriginalist claims about judicial "role." If a commitment to originalism means anything, however, it should mean letting the chips fall where they may with respect to results.

With all this in mind, it was noteworthy to see a lengthy feature article on originalism in the Wall Street Journal's weekend section. Entitled Rethinking Original Intent, the subtitle is: "The debate over the Constitution's meaning takes a surprising turn; a pivotal gun-rights case." The article is well worth reading. Here is a taste:

This new twist on originalism is gaining momentum, and its proponents hope it will lead courts to take a more expansive view of individual rights. Although nurtured by liberals -- including some with close ties to the Obama administration -- some conservatives are backing the broader application of the originalist method. In uniting some unusual allies, the Illinois gun-rights case could be the vehicle to correct what scholars on the left and right say is a 136-year-old constitutional wrong.

The Constitutional Accountability Center brief served in effect as an intellectual loss leader for liberals frustrated by conservative success in the battle over the Constitution's meaning. Douglas Kendall, the center's head, says he personally supports gun control, but if courts embrace his arguments, the door could open to a new era of liberal jurisprudence.

So-called progressive originalism departs from the conservative strain by shifting focus from the 18th-century constitutional text to the three Reconstruction amendments ratified after the Civil War. The 13th, 14th and 15th amendments radically altered the structure of American federalism, elevating federal power over that of the states, and giving individual rights pre-eminence.

Whatever its weaknesses, the article is important evidence that the Privileges or Immunities Clause may indeed rise from the grave that was dug for it in The Slaughter-House Cases. Indeed, I don't think the Court would have to reverse Slaughter-House to enforce a right to keep and bear arms; it would only have to reverse the vile U.S. v. Cruikshank. (For why Cruikshank is vile see The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction)

I have procrastinated about blogging about this because the subject quickly gets complex. for example, is this a good or a bad thing for originalism? Many conservative originalists would find this development loathsome. But I think that any shift to a focus on the original meaning of the text can only be a good thing. Consider the originalist debate between Justices Scalia and Stevens in Heller. This is far preferable to interpreting the Constitution according to the sort of allegedly pragmatic considerations of Justice Breyer in Heller.

Of course, any assertion of original meaning must be confined to original meaning. Moving to the "original principles" underlying the text and then using these principles to decide cases is a tried and tested way of avoiding rather than adhering to the original meaning of the text. But the purpose of this post is merely to report the news of progressive originalism and the increasing likelihood of reviving the Privileges or Immunities Clause in the context of gun rights. We report, you decide.