Saturday, October 3, 2009

Gun Case or Employment Law Blockbuster?

Last summer, the Supreme Court recognized an individual right to bear arms, striking down the federal government's D.C. gun ban in Heller. Now, the Supreme Court has decided to hear a case, McDonald v. Chicago, that will determine whether the Second Amendment applies to state and local governments. It even has it's own web site! So, what's a Chicago gun ban case got to do with employment law?

First, a brief history lesson...

1. Fourteenth Amendment Privileges or Immunities Clause Comes and Goes
Following the Civil War, the federal government decided that it needed to protect individual rights from state infringement. Hence, the Fourteenth Amendment was born in 1868. It reads, in part:
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;"
For such a broad proclamation of liberty, you hear almost nothing about this clause for some reason.

That reason, is the Slaughterhouses Cases from 1873 (multiple cases were combined into one Supreme Court opinion, hence the odd singular-plural thing here). The Supreme Court interpreted the privileges or immunities clause extremely narrowly to apply only to privileges of United States citizenship (national citizenship; ex. the right to travel). According to Justice Thomas, "the Court all but read the Privileges or Immunities Clause out of the Constitution." After only five years, the Privileges or Immunities clause was all but dead.

2. The B-R-O-A-D Interpretation
Though they disagree on the details of the Privileges or Immunities clause (and nearly everything else involving Constitutional interpretation), both progressives and libertarians agree that the Slaughterhouse Cases were wrongly decided, inhibiting individual liberty in the United States. Libertarian publication, Reason magazine, describes the Privileges or Immunities clause as an attempt:
"to enshrine the free labor philosophy of the anti-slavery movement, which was based on an individualistic and market-oriented form of self-ownership.... specifically designed and ratified to protect a sweepingly libertarian idea of self-ownership. That idea includes the right to acquire property, run a business, and buy and sell labor without unnecessary or improper interference by the government."
In other words, if the Supreme Court hadn't written out the Privileges or Immunities clause in Slaughterhouse, then the Constitution could be used as a weapon to strike down (what they see) as unnecessary, overly burdensome regulations. This could include occupational licensing and governmental contract restrictions (wage and hour laws, for example).

3. Incorporation Doctrine
The Bill of Rights does not apply directly to the states. This is probably shocking news to many people. The most obvious example is the First Amendment which begins, "Congress shall make no law...." Your state is not Congress is it?

But wait, you have freedom of speech (and other 1st Amendment rights) even against state laws don't you? Yes, through a process called "incorporation." The Supreme Court has used the Fourteenth Amendment's Due Process clause, which protects "life, liberty, and property," to apply most of the Bill of Rights to the states. And when I say "most," guess which amendment hasn't been incorporated? The Second Amendment right to bear arms.

4. The Tie-In
OK, back to the McDonald v. Chicago case. The mainstream media version goes something like, "the Supreme Court will decide if the Second Amendment applies to the states." But it's how the Supreme Court might apply the Second Amendment to the states that has Con Law nerds out of breath (Note: the linked blogger, Josh Blackman, was a classmate of mine at Mason Law and I feel confident he would be content to be labeled a "Con Law nerd"). The Supreme Court framed the issue as:
"Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home."
So maybe, just maybe, the Supreme Court will bring the Privileges or Immunities clause back from the dead.

5. I Said "MAYBE"
This case could come out a lot of ways. Maybe the Court will simply use the Due Process clause again. Maybe they'll find that the Chicago gun ban wouldn't violate the Second Amendment even if it was incorporated (and so there's no reason to even address incorporation). Or maybe they'll find that the Privileges or Immunities clause is the ink blot the Slaughterhouse Cases said it was.

Maybe though, the clause will be back in full effect like it's 1869. In that case, expect an onslaught of lawsuits seeking to strike down numerous labor and employment laws as unconstitutional. Then we'll have another set of "maybes." Like maybe the Privileges or Immunities clause will protect some liberties but not the economic liberties and freedom of contract envisioned by the libertarian movement.

If the stars align and all of those "maybes" come out in just the right combination though... McDonald v. Chicago could be the biggest employment law case of all time.


  1. To Philip,

    I wish to state that the Supreme court, in the Slaughterhouse Cases, held that because of the Fourteenth Amendment there were now two separate and distinct citizens under the Constitution of the United States; a citizen of the United States, under the Fourteenth Amendment and a citizen of the several States, under Article IV, Section 2, Clause 1 [FOOTNOTE]:

        “We think this distinction and its explicit recognition in this Amendment (the 14th Amendment) of great weight in this argument, because the next paragraph of this same section (first section, second clause), which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several states. The argument, however, in favor of the plaintiffs, rests wholly on the assumption that the citizenship is the same and the privileges and immunities guaranteed by the clause are the same.” 83 U.S. 36 (1873), page 74.


        “In the Constitution of the United States, which superseded the Articles of Confederation, the corresponding provision is found in section two of the fourth article, in the following words: ‘The citizens of each State shall be entitled to all the privileges and immunities of citizens OF the several States.’ ” 83 U.S. 36 (1873), page 75.

    The last was later reaffirmed in Cole v. Cunningham:

        “The intention of section 2, Article IV (of the Constitution), was to confer on the citizens of the several States a general citizenship.” Cole v. Cunningham: 133 U.S. 107, 113-114 (1890).

    The privileges and immunities of citizens of the several states are those described by Corfield, cited in the Slaughterhouse Cases. This is reaffirmed in Hodges v. United States:

        “In the Slaughter House Cases, 16 Wall. 36, 76, in defining the privileges and immunities of citizens of the several States, this is quoted from the opinion of Mr. Justice Washington in Corfield v. Coryell, 4 Wash. Cir. Ct. 371, 380.” Hodges v. United States: 203 U.S. 1, at 15 (1906).

    So there are now two citizens under the Constitution of the United States. One needs to find out information on both. For a citizen of the United States that is easy. Just about anywhere. For a citizen of the several States one will have to begin here:



    The Effects of the Fourteenth Amendment on the Constitution of the United States


    A Look At Corfield (On Citizenship)


  2. To Philip,

    I am writing to inform you that the links I provided in Comment 1 no longer work. The new locations for them are:



    The Effects of the Fourteenth Amendment on the Constitution of the United States


    A Look At Corfield (On Citizenship)


    There is also the following which I think would be appropriate.

    Comment on Petitioner's Brief: McDonald v. City of Chicago