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
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