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 Raich v. Gonzalez. Indeed, it’s unlikely that judicial, as opposed to political, ideology, ever persuades more than a Justice or two on a previously settled issue.
So what are the conservatives’ concerns that need to be addressed? (1) Further undermine Roe v. Wade, and certainly don’t create a free-floating liberty interest under P or I that can be abused by liberals; (2) Don’t bring back the dreaded Lochner.
The argument would go like this: (a) the Court should take this opportunity to start to move its individual rights jurisprudence from the Due Process Clause to the P or I Clause; (b) The problem with the D.P. Clause is that it traditionally prohibits “arbitrary” infringements on liberty, but arbitrariness is in the eye of the beholder, as is what is meant by “liberty,” see in both contexts Roe v. Wade; (c) worse yet, cases like Roe fail to give any real weight to the police power, the traditional brake on the D.P. Clause; (d) by contrast, through historical investigation, we can determine with some precision what rights were considered privileges or immunities of citizens. Abortion, (right to die, etc.) was not one of them!; (e) Justice Field and Justice Bradley were correct in their SlaughterHouse dissents that one p or i of citizenship is the right to pursue an occupation free from government-sponsored monopoly, a much narrower right than the later Lochner due process right to be free from arbitrary restrictions on liberty of contract, and a right that goes way back in Anglo-American history; (f) the ultimate holding of SlaughterHouse was still correct, because Louisiana had a legitimate police power interest in ensuring that its waterways didn’t carry disease, and the butchers who sued weren’t driven out of the profession, they just had to work in the safe location dictated by the government and pay a license fee to the slaughterhouse owner.
So, by deciding McDonald on P or I grounds, the conservatives can (1) help ensure the survival of the individual right to bear arms, and ground it in a much less controversial historical context, while leaving more room for federal than for state regulation of firearms; (2) start the process of transferring liberty jurisprudence from the D.P. Clause to the P or I Clause, which should help undermine Roe v. Wade and other rights with no historical basis as of 1868; and (3) allow some room for the Court to engage in serious review of a very narrow category of abusive economic regulations, along the lines of the cases brought by the Institute for Justice (requiring hairbraiders to take a two-year cosmetology course, creating a government-imposed cartel in funeral caskets, etc.)
In short, I would appeal not just to originalism, but to the conservatives’ long-term political self-interest, and affinity for the conservative political coalition that put them in power.
And I should add that I do not in any way mean to disparage or criticize any of those who are writing or have written briefs in this case.
UPDATE: Josh Blackman makes a good point in the comments: if the conservatives don’t define (and limit) the scope of the P or I Clause while they have a majority, the liberals may do so in the future, with very unconservative consequences.