Let’s say someone hired me to write an amicus brief in the McDonald Second Amendment case, and my goal was to get the Court to overrule the SlaughterHouse Cases (holding that the Privileges or Immunities Clause is a virtual nullity) and get the Court to hold that the Clause protects a right to bear arms, how would I go about it?
First, I would recount the scholarly consensus that SlaughterHouse was incorrectly decided, in that the P or I Clause was meant to provide substantive protection for individual rights beyond the extremely narrow category of rights enumerated in SlaughterHouse.
Second, I would explain why I think it’s important to decide this case on P or I grounds. My argument would be that in due process incorporation cases, the Court has consistently (and thoughtlessly) determined that the scope of the right against the states is precisely the same as the scope of the right against the Federal government. This is problematic in the context of the right to bear arms because of the confusion over what the “militia” language in the Second Amendment means. Heller came out the “right” way, but by a bare 5-4 majority, with much dispute about whether the Second Amendment was meant to protect an individual right to bear arms. By contrast, it’s entirely clear that the Framers of the Fourteenth Amendment thought that the P or I Clause protected an individual right to bear arms. In particular, they understood that African Americans and “carpetbaggers” needed weaponry to protect themselves from assaults by armed Southern terrorist groups.
Third, I would try to craft an argument that would appeal to the Court’s four conservatives, by far my most likely votes. I would conclude that originalism isn’t nearly enough–as witnessed by Antonin “Mr. Originalism” Scalia’s appalling concurrence in the [...]