Chicago Gun Case: Enforce the Constitution–All of It

Today, the U.S. Supreme Court will hear McDonald v. Chicago, in which the Court will decide whether the City of Chicago can disarm its citizens by forbidding them from owning handguns, or whether gun ownership is a “privilege” of citizenship protected by the U.S. Constitution. In doing so, it will reconsider whether courts should play a more robust role in the protection of the basic liberties of the people.

Such a statement may seem counterintuitive. Of course courts protect rights; it’s their job to interpret the Constitution to do just that.

But the practice of constitutional law has unfortunately long since been about more than the simple application of the plain text. That’s because the Constitution–the point of which is to limit government power–is a rather inconvenient roadblock when government wants to do something without restraints. Courts, in many cases, have abandoned their responsibility to apply the clear commands of the Constitution and have become extremely deferential to legislatures, especially with regard to progressive policy goals the judges themselves often share. It seems crazy that we would let legislatures determine when laws they themselves create violate the Constitution. But that is exactly what has happened. We’ve let the fox guard the henhouse.

Some call this judicial “restraint,” but increasingly, a more accurate term would be judicial abdication. And judicial abdication is every bit as dangerous as judicial activism, and arguably even more so because it allows politicians to disregard whatever constitutional limits they find inconvenient, which leads to unchecked expansion of government power.

A glaring example of judicial abdication is the 1873 decision of the U.S. Supreme Court known as the Slaughter-House Cases–a case that legal scholars from every political persuasion believe was wrongly decided. Slaughter-House involved a government-created butcher monopoly in the City of New Orleans. If butchers wanted to work, they had to pay to use a single government-sanctioned private slaughterhouse. Naturally, those whose rights were being violated by this action sued, arguing the recently adopted Privileges or Immunities Clause of the 14th Amendment protected their right to pursue the occupation of their choice free from illegitimate government regulations.

The Supreme Court, however, disagreed. In a 5-4 decision that remains controversial to this day, it concluded the Privileges or Immunities Clause–against all evidence–protected only a few basic rights inherent in national citizenship, such as the right to travel across state lines and the right to petition the government. In doing so, it eviscerated a clause of the Constitution meant specifically to protect the liberties of the people–particularly newly freed black slaves and their white supporters–from state and local government infringement.

The 13th Amendment brought a legal end to slavery. But the 14th Amendment was enacted to ensure that the freedom of the former slaves was meaningful. Thus, no government could deny the multitude of “privileges or immunities” inherent in citizenship.

There was a general consensus that the term “privileges or immunities” protected important rights necessary to live a decent and productive life, such as own property, earn an honest living, participate in politics, and own a gun for self-protection. But the term was left open-ended to protect against the many newfangled ways racist governments could deny opportunities to newly free black and their white supporters.

It’s not surprising that the chief legacy of Slaughter-House is Jim Crow, and the century of oppression suffered by blacks at the hands of unjust laws that denied them real opportunity. But that legacy extends to all Americans, especially those who’ve suffered–like the butchers in New Orleans–from unreasonable regulations and licensing schemes that deny them the right to earn an honest living. Ask nearly any small businessperson one of the most difficult challenges they face and you will get a common response: big government regulations–like those that find their roots in Slaughter-House.

Thus, McDonald is more than a gun case. McDonald represents an opportunity for the U.S. Supreme Court to resurrect the Privileges or Immunities Clause and abandon its tainted history of judicial abdication. Once again, the Court could take seriously its vital role of enforcing the Constitution–all of it–against the continued onslaught of government power.

To ensure that we live in a nation characterized by islands of government in a sea of liberty–and not the other way around–it is imperative that the Court take advantage of this all-too-rare opportunity in McDonald to overturn Slaughter-House and restore itself as an engaged and co-equal branch of government when it comes to the protection of our rights.