The Supreme Court is set to hear oral argument today in McDonald v. City of Chicago. At issue is whether the Second Amendment, whose broad contours were decided in Heller, applies to States. Chicago has gun laws equally as restrictive as those struck down in Washington D.C. by Heller. But there is so much more here. This is anything but a normal case.
There has not been a case so intertwined with the issues of slavery and racism since the Civil War. Here is the big, big, big rub. Ultimately, for opponents of the Second Amendment, in order for the Court to find that the Second Amendment does not apply to states, the Court would have to uphold a series of racially charged, post civil war decisions that gave free reign to the rise of the Ku Klux Klan and which forgave the slaughter of hundreds of blacks one Easter's day in post-Civil War Louisiana. Those cases were an attempt to limit the rights of blacks in post Civil War America and they are a stain on our nation's history that should not be left standing.
Here is the background to McDonald. The starting point is with perhaps the most reviled Supreme Court decision of all time, the 1857 case of Dred Scott. In that case, Chief Justice Taney, a Democrat, held that no black, whether a freedman or a slave, could ever be considered a citizen of the U.S. entitled to rights under the Constitution.
Dred Scott was one of the many fuses that led in 1861 to the Civil War. In the immediate aftermath of the war, the abolitionist Republican Congress, in answer to Dred Scott, amended the Constitution. They passed the 13th Amendment, abolishing slavery. They passed the 14th amendment, of concern in the instant case for the Privileges & Immunities clause as well as the Due Process clause. Specifically, it states:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; . . .
They also passed the 15th Amendment, preventing States from interfering with the right of anyone to vote based on such person color.
At issue for originalists in McDonald is what the drafters intended when they wrote the 14th Amendment. You can read the Petitioner's brief in McDonald for some very good historical research on that topic. It is pretty clear that the drafters intended the "privileges or immunities" clause to extend the rights set forth in the Bill of Rights to individual citizens in each state as an answer to Dred Scott. The due process clause - of such importance today - was then considered purely procedural.
But in the Slaughterhouse Cases of 1873, a 5-4 majority in the Supreme Court gutted the "privileges and immunities" portion of the 14th Amendment, holding that it only applied as a brake on federal power, while states were free to establish their own laws in contravention. On the heels of this decision, in 1875, came the decision in Cruikshank - a decision that led directly to the growth of the KKK and the era of Jim Crow.
The background to Cruikshank is that, on Easter Day, 13 Apr 1873, hundreds of black Republicans were meeting in the Colfax, Louisiana courthouse to protect it from a Democratic takeover during a political dispute. Hundreds of whites surrounded the Courthouse and attacked, burning it down and killing somewhere between 100 and 280 blacks. Several members of the white mob were arrested and charged under The Enforcement Act, a federal law that made it a crime to conspire to deprive anyone of their Constitutional rights.
The Cruikshank Court held, on the basis of the Slaughterhouse Cases, that the federal government could not hold individuals liable for violating another citizens civil rights. Among other things, the Court held that individuals could only look to the States for the enforcement of their 1st and 2nd Amendment rights:
The first amendment to the Constitution prohibits Congress from abridging 'the right of the people to assemble and to petition the government for a redress of grievances.' This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone. . . .
The particular amendment now under consideration assumes the existence of the right of the people to assemble for lawful purposes, and protects it against encroachment by Congress. The right was not created by the amendment; neither was its continuance guaranteed, except as against congressional interference. For their protection in its enjoyment, therefore, the people must look to the States. The power for that purpose was originally placed there, and it has never been surrendered to the United States. . . .
The second and tenth counts are equally defective. The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, . . . the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constitution of the United States. . . .
The end result of the Slaughterhouse-Cruikshank line of cases from a legal standpoint was to nullify and atrophy the privileges and immunities clause of the 14th Amendment. Later Courts would get around that by developing the legal canard of "substantive due process" to bootstrap federal enforcement of civil rights. As a practical matter, as already pointed out, Cruikshank gave rise to the growth of the KKK and the imposition of Jim Crow laws.
The original intent of the drafters of the 14th Amendment, by the Privileges or Immunities clause, was to apply the Bill of Rights to all citizens of our country. It may be that the court in MacDonald does not reach this issue, but rather finds the Second Amendment is "incorporated" under the Due Process clause. But those on the Court who do not want to see the Second Amendment applied as a universal right of all citizens are going to have to reach Cruikshank - and uphold it. The irony here is just delicious.