Un-slaughtering the Privileges or Immunities Clause

What a great title for a symposium:

"A Vain and Idle Enactment: Could McDonald v. Chicago Un-Slaughter the Privileges or Immunities Clause?"

The Privileges or Immunities Clause is part of the Fourteenth Amendment passed, of course, after the Civil War. It says, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." While the Amendment's Due Process clause has led over time to the incorporation of certain guarantees in the Bill of Rights against state encroachment, the Privileges or Immunities clause was rendered a dead letter just a few years after its enactment by the Slaughter House Cases.

In dissent, Justice Field wrote:

The amendment does not attempt to confer any new privileges or immunities upon citizens, or to enumerate or define those already existing. It assumes that there are such privileges and immunities which belong of right to citizens as such, and ordains that they shall not be abridged by State legislation. If this inhibition has no reference to privileges and immunities of this character, but only refers, as held by the majority of the court in their opinion, to such privileges and immunities as were before its adoption specially designated in the Constitution or necessarily implied as belonging to citizens of the United States, it was a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage.

Back to the present, The Volokh Conspiracy recently pointed out:

...McDonald v. Chicago involves a constitutional challenge to the Chicago handgun ban, which raises the issue of whether the individual right to keep and bear arms, which was recognized by the Supreme Court in DC v. Heller also applies to the states. Somewhat amazingly, the Court announced that this was the question presented:

Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.

This indicates that the meaning of the long-ignored Privileges or Immunities Clause is now in play, and that the Court wants to squarely address this constitutional question, as Justice Thomas has long been urging it to do. Rarely do constitutional law cases involve the isolated issue of the original meaning of the text. Heller is one such case; McDonald could be another. Is it really possible that the court will restore not one, but two clauses of the Lost Constitution?

An exciting moment for Constitution geeks.

Ironical post script: Re-reading, it occurs to me I didn't expound sufficiently. The really interesting aspect of this case, in my estimation, is that, ultimately, it potentially broadens the expansion of individual rights in a way that will be appreciated by social libertarians of a leftist bent - that is, it potentially reaches a lot of liberties not currently protected under constitutional law. But the argument is asserted by proponents of the Second Amendment right which is traditionally thought of as a right wing interest. And, the argument  rests on an originalist textual reading of the Constitution, which is also a traditionally conservative point of view, but which nevertheless potentially broadens the landscape of individual rights, which is traditionally a leftist interest.  As I say, an exciting moment fo Constitution geeks.