In Killing Slaughterhouse (Reason Online), Brian Doherty provides a superb, concise overview of the legal and libertarian issues regarding an upcoming Supreme Court, McDonald v. Chicago, about whether the Second Amendment should be “incorporated” into the Fourteenth Amendment so that it applies to the states, and related issues such as the Slaughterhouse Cases, “the controversial 1873 decision at the center of the Supreme Court’s upcoming gun rights fight.”
The Slaughterhouse Cases in 1873 largely eviscerated the so-called Privileges or Immunities Clause of the 14th Amendment; decades later, the Supreme Court instead relied on the Due Process Clause of the 14th Amendment to “incorporate” some of the “fundamental” rights of the Bill of Rights to strike down state laws. To do this they had to contort the Due Process Clause and invent a “substantive due process” aspect (in addition to its “procedural due process”–hello, due process is procedural), into which they could incorporate selected rights. But they never did incorporate the Second Amendment because until Heller (see To Hell with Heller), it hadn’t been yet recognized as a fundamental right. In my view there is little doubt that it will be incorporated, under the “substantive” Due Process clause.
The activist libertarians behind the McDonald case, including the McDonald (and Heller) lawyer Alan Gura, want the Court to overturn Slaughterhouse to provide a better, more honest, basis for incorporating rights, and to open the door for the federal courts to strike down even more state laws that violate “liberties.” (One wonders why the federal Courts, who let their own Congress get away with so many blatantly unconstitutional and unjust federal laws, would become libertarian all of a sudden in reviewing state legislation; but no matter.)
Doherty’s overview of the issues is excellent. He does a good job of explaining some of the resistance to Gura’s approach by different groups, including libertarians who are leery of this not because they don’t want bad state laws struck down, but because they are wary of giving more power to the federal government. Doherty quotes one of Roderick Long’s LewRockwell.com articles, and also Cato’s Gene Healy, who has also written good anti-centralist pieces for LewRockwell.com (listed here):
Some libertarian scholars, though, have never liked the idea of using the 14th Amendment to impose federal power over state law, whether or not the specific result might be one that extends rights in a salubrious direction. For example, Gene Healy, now with the Cato Institute, wrote in 1999 that “in practice, the Fourteenth Amendment has often operated as a grant of legislative and executive power to judges. And that power has been used to violate the very rights it was meant to secure.” Healy also noted a disturbingly high number of law students seeing “in the Fourteenth Amendment an irresistible engine for reshaping society along egalitarian lines.”
Libertarian philosopher Roderick Long noted, in the context of the Kelo eminent domain case, that “I am opposed to giving the Federal government the power to impose libertarian standards on the States, for the same reasons that I would oppose giving the United Nations the power to impose libertarian standards on the U.S. This is not because I think federalism takes precedence over individual rights, but rather because I think federalism is a better long-run strategy for protecting individual rights.” [Long continues (not quoted by Doherty): "Now I would not oppose giving either the U.S. or the U.N. the power to impose libertarian standards on its members if this power could be guaranteed to be exercised in a reliably libertarian manner in actual practice; but what guarantees this? The power to impose libertarian standards is also the power to impose non-libertarian standards; as Barry Goldwater (or perhaps Karl Hess) famously remarked, "A government that is big enough to give you everything you want is big enough to take it all away.""]
For more on these issues, see my recent post The Libertarian Case Against the Fourteenth Amendment.
Update: As Doherty notes, the 14th Amendment lists three distinct ways in which states and localities are prohibited from violating our rights: “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; nor deny to any person within its jurisdiction the equal protection of the laws.”
Note the “of citizens” qualifier for privileges or immunities. My buddy Anthony Gregory sent me an interesting comment about this: The due process or equal protection clauses are preferable to the privileges or immunities clause because the latter only protects the rights of “citizens.” But libertarian rights such as the right to bear arms, free speech, etc. should not be limited to citizens. In other words, at present, the fundamental rights from the Bill of Rights incorporated into the 14th Amendment via the Due Process clause apply to all persons; if Gura is successful in persuading the Court to rely on the Privileges or Immunities clause instead, this would remove this protection from non-citizens present in the US.