Wydra and Gans on Privileges and Immunities, Incorporation, Second Amendment

I spoke this afternoon with Elizabeth Wydra, Chief Counsel of the Constitutional Accountability Center, and David Gans, Director of the Constitutional Accountability Center's Human Rights, Civil Rights, and Citizenship Program, about their work on the Fourteenth Amendment Privileges or Immunities Clause, incorporation of the Bill of Rights, and the Second Amendment.

The full interview is here.  (24 minutes, mp3 file.)

I've covered the CAC's excellent work on these issues here, here, and here.  Wydra and Gans filed an amicus brief in NRA v. City of Chicago, the Seventh Circuit's decision last week declining to apply the Second Amendment to the states.  (My post is here.)  Gans and CAC founder and President Doug Kendall wrote The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment. 

Their argument--that the Privileges or Immunities Clause of the Fourteenth Amendment incorporates fundamental rights--has been very much in play in the three circuit court cases since D.C. v. Heller on Second Amendment incorporation.  One issue I was particularly interested in: How does incorporation under the Privileges or Immunities Clause change the landscape for fundamental rights protection against the states?  Answer: Listen to the interview, or see below.

Here are some highlights:

On the Gem:

Gans: The story of the Gem and of the Privileges or Immunities Clause is that this was the center piece of the Fourteenth Amendment and was designed to be the place where the constitution protected substantive fundamental rights against state incursion.  The name comes from one of the framers, who said the Fourteenth Amendment is going to be the Gem, because it puts the Declaration of Independence in the Constitution.  The idea was that the inalianable rights mentioned in the Declaration would be protected against the states in the Gem, and it would embody those protections of liberty and equality that had been flagrantly violated in the years leading up to the Civil War.  Sadly the Supreme Court in the 1870s wrote the Privileges or Immunities Clause out of the constitution in the Slaughterhouse Cases and left it to protect a very narrow set of rights and excluded from the protection all the substantive fundamental rights that we view as the heart of liberty.  And so the mission of the Gem was to show the framers’ vision that the Privileges or Immunities Clasue was meant to protect substantive fundamental rights, including both rights that were explicitly enumerated in the Bill of Rights and a pretty wide set of rights that were viewed as fundamental but weren’t specifically enumerated . . . and to show how Slaugeterhouse decimated this original meaning of the Privileges or Immunities Clause.   

On Second Amendment Incorporation: 

SDS: And so does that mean that the Privileges or Immunities Clause is a cleaner vehicle for incorporation . . . and if so by what standard do we measure incorporation under the Privileges or Immunities Clause?

Wydra: [The Second Amendment cases are] possibly one of the cleanest cases for incorporation under the Privileges or Immunities Clause because we have such clear and voluminous history that shows that the framers of the Fourteenth Amendment were particularly concerned that one of the privileges or immunities of citizenship that the new amendment would be protecting would be the individual right to keep and bear arms against state infringement.  And the history shows, as we set  forth in our amicus brief [in the Seventh Circuit case], that this desire to protect the right to bear arms for individuals in the wake of Reconstruction was motivated in large part because the framers of the Fourteenth Amendment wanted to make sure that the newly freed slaves and their northern allies would have the means to protect themselves, their families and their property against the former rebel militias in the South, which were attempting to disarm freedman and unioinists and perpetuating violence against them.  This is why we feel like the Second Amendment cases really do present a unique opportunity to get the scholarly consensus and work that we’ve set forth in the Gem before the Court and hopefully try to put the court’s Privileges or Immunities jurisprudence back on the right track . . . that the court takes this opportunity to right the wrongs of Slaughterhouse.

 

On Fundamental Rights Incorporation:

 

SDS: And so you’ve argued, as I understand your argument, that the rights in the Bill of Rights are incorporated or ought to be incorporated via the Privileges or Immunities Clause.  What additional rights then would be incorporated that perhaps the court has found as a matter of due process or even that the court hasn’t found as a matter of due process?  What rights are we talking about here?

Gans:  the set of rights in many ways might stay the same [as under the Due Process Clause].  [T]he right to bodily integrity was very important . . . the right of personal security . . .  In terms of the so-called right to privacy cases protection of family integrity was hugely important to the framers partially because of the legacy of slavery marriage was impossible, families were destroyed, and making sure that the newly freed slaves were protected in those family rights was extremely important . . .  .

SDS: Fundamentally do you think individual rights practice and individual rights that are protected by the Fourteenth Amendment will change [if the Privileges or Immunities Clause becomes the vehicle for incorporation]?

Wydra:  The rights that are protected currently would only be strengthened, and we think that that is not insignificant; that is actually a very important development if the court were to restore the Privileges or Immunities Clause.  And perhaps just as important the court would be restoring a portion of our constitution that was intended to preserve substantive fundamental rights and would be giving power back to this important provision of our Constitution; and providing coherence to the constitutional rights protection is no small thing.  We think that it [would] help us ground discussions of [what unenumerated rights are protected] so that they will be productive. 

 

On Incorporation Standards under the Privileges or Immunities Clause:

 

SDS: What would we look to to determine what rights that are unenumerated the Privileges or Immunities Clause protects?

Gans: One . . . what counts as a fundamental right under history and tradition would be a relevant source.  Two, there’s a pretty rich history from reconstruction that informs it in terms of what are the rights that the framers of the Fourteenth Amendment cared about [e.g., the right to bear arms].  And you could make a similar point about uneumerated rights.  The value added in the Privileges or Immunities Clause is the idea that when you’re a citizen of the United States, that comes with a wide array of substantive rights--the rights to participate in society--and right now that’s lost.

 

On Citizenship:

 

SDS:  Using the Privileges or Immunities Clause of the Fourteenth Amendment is a validation of federal citizenship that seems to have been stripped away at the Slaughterhouse Cases and never really fully restore.

Wydra: Yes, I think that’s right, and it brings up an interesting point about the Seventh Circuit decision in this case where they raise a point at the end of the opinion about the principle of federalism trumping whatever individual right to keep and bear arms in self-defense that there might be.  The principle of federalism is extremely important, and one of the crown jewels of our constitutional order is this vibrant federalism, but the Fourteenth Amendment stands directly contrary to that argument.  The states are wonderful laboratories of democracy, but the Fourteenth Amendment stands for the proposition that certain fundamental rights are not subject to local experimentation, that they are protected by the federal government against state infringement.

 

SDS