Rethinking the Fourteenth Amendment

Article in the Wall Street Journal about the debate of the role of the Fourteenth Amendment, and the tortured state of the Supreme Court's "incorporation" jurisprudence:

After the Supreme Court struck down the District of Columbia's handgun ban last June, gun-rights advocates trained their sights on similar restrictions in Chicago and Oak Park, Ill. Last month, the National Rifle Association received ammunition from an unlikely source: the Constitutional Accountability Center, a liberal litigation shop.

In a brief filed with the federal appeals court in Chicago, the center not only argued that gun ownership is a constitutional right, it also employed the legal method popularized by such conservative icons as Supreme Court Justice Antonin Scalia. That method is originalism, which seeks to apply the law today according to the text's meaning at the time of its adoption.

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.

Progressive originalists are focusing on a clause in the 14th Amendment in their quest to change how the courts view individual rights. Click on the image for a look at the amendment's history.

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.
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Although he dissented [in the California case], Justice Clarence Thomas wrote that "the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of our 14th Amendment jurisprudence." To clarify things, "I would be open to re-evaluating its meaning in an appropriate case."

That case could be the gun-control lawsuit in Illinois. Although the Supreme Court struck down the District of Columbia's handgun ban, the capital's federal status leaves unclear the implications for the states. A robust reading of the Privileges or Immunities Clause would likely extend the decision's force.

Mr. Kendall's center argues in its brief that the Reconstruction framers "wanted the newly-freed slaves to have the means to protect themselves...against well-armed former rebels."

Alan Gura, the conservative lawyer who won the gun case at the Supreme Court and brought the challenges in Illinois, raised the Privileges or Immunities argument at the district court, only to see it rejected because of current precedent.

He welcomes his liberal allies. "This is an issue that actually unites the left and the right," he says. ...

Read the whole thing here. The Fourteenth Amendment issue will become important if the Chicago gun ban or related cases end up before the Supreme Court in the next year or so.