Tony Mauro reports that liberal groups and law professors, led by the Constitutional Accountability Center, are supporting gun groups in their effort to have the Second Amendment incorporated against the states.
But these academics and the liberal Constitutional Accountability Center, which filed a brief in the case, have not suddenly taken up the Second Amendment cause, Charlton Heston-style. Rather, they joined the case to urge the court to adopt a new way of making the rights protected by the federal Constitution apply to the states (a process known as "incorporation").
That new pathway runs through the long-dormant "privileges or immunities" clause of the 14th Amendment. In the view of scholars and historians of all political stripes, the clause provides the strongest legal foundation for applying the Bill of Rights to the states. The language — "No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States" — is broad and clear, advocates say, and could be used to incorporate the entire Bill of Rights to the states, wholesale. It would replace the narrower and more piecemeal way in which the Bill of Rights was usually made binding on the states, right by right, during the 20th century — namely, the 14th Amendment's due process clause.
Reinvigorating the Privileges or Immunities Clause of the 14th Amendment would require overturning, or severely limiting, the Supreme Court's 1873 Slaughterhouse decision. Until recently, the only folks who expressed much interest in challenging Slaughterhouse were folks on the right, such as the libertarian Institute for Justice (see Randy's recent post about one of their recent cases), even though the weight of academic opinion supports the notion that Slaughterhouse was wrongly decided. Liberals see the effort as a way to reinforce the protection of free speech and sexual liberty. Libertarians and some conservatives, on the other hand, believe recognizing the original meaning of the Privileges or Immunities Clause would strengthen constitutional protection of property rights and economic liberties. Perhaps they're both right — and perhaps we'll find out.