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THERIGHTTOKEEPANDBEARARMSINTHE STATES:AMBIGUITY,FALSEMODESTY,AND (MAYBE)ANOTHERWINFORORIGINALISM

CLARKM.NEILYIII*

District of Columbia v. Heller1 was an easy case to get right. First, there was the text of the Second Amendment, which plainly states that the right of the people to keep and bear Arms,shallnotbeinfringed.2Second,therewashistory,much of it created by citizensoldiers who had just won their inde pendenceandknewtheywouldhavetokeepfightingforit withguns.Nextwerethereamsofacademicscholarshipfrom acrosstheideologicalspectrumthathadcometoestablishthe individualrightsinterpretationasthestandardmodelofthe Second Amendment.3 Finally, there was the sheer unpersua sivenessoftheargumentsontheotherside,whichJudgeAlex Kozinksioncedescribedashavingthegraceofasumowres tlertryingtokillarattlesnakebysittingonit.4 Another question that should be easyand for most of the samereasonsiswhethertherighttokeepandbeararmsap plies against the states. The Supreme Court did not address thatissueinHellerbecausetheDistrictofColumbiaisafederal enclave to which the Bill of Rights, and thus the Second Amendment,appliesdirectly.Bycontrast,ifthefederalConsti tutiondoesprotectarighttokeepandbeararmsagainststate infringement, it can only be through the Fourteenth Amend

*Seniorattorney,InstituteforJustice.Inhisprivatecapacity,Mr.Neilyserved ascocounseltotheplaintiffsinDistrictofColumbiav.Heller. 1.128S.Ct.2783(2008). 2.U.S.CONST.amend.II. 3.See, e.g., Glenn H. Reynolds, A Critical Guide to the Second Amendment, 62 TENN.L.REV.461,46366(1995). 4.Silveira v.Lockyer,328 F.3d 567, 570 (9thCir. 2003) (Kozinski, J., dissenting fromdenialofrehearingenbanc).

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ment, an issue Heller specifically eschewed.5 The question has nowbeenpresentedtotheSupremeCourt.6 The short answer is yes, the Fourteenth Amendment does protect an individual right to keep and bear arms from state infringementemphaticallyso.Buttherearetwopathstothat result, only one of which reflects the spirit of originalism for which Justice Scalias Heller opinion has been justly praised. The originalist approach would require the Supreme Court to confronta136yearoldmistakethatpitshistoryandthetextof the Constitution against the false modesty of government favoring judicial restraint. This Article argues that the Court should take the originalist path as a matter of principle and thattheremayneverbeabetterchancetodoso. I. Lawyers, including ones who have become judges, have a knack for finding ambiguity where convenient. But constitu tions necessarily speak in terms that are often broad and con ceptual rather than narrow and specific. Moreover, because language is not static, words or phrases whose meaning was clearwhendraftedcangrowlesssowithtime,creatingoppor tunitiesforlatergenerationstoproclaimambiguitywherenone originally existed. Unfortunately for the body politic, ambigu itydriven minimalism plus governmentfriendly judicial re straint is like mixing booze with sleeping pills: a dangerous andlethargiccombination. Take the text of the Second Amendment. There is nothing remotely ambiguous about the imperative shall not be in fringed. Yet, until Parker v. District of Columbia7 in 2007, no federalappellatecourthadeverusedtheSecondAmendment toprotectgunownership.Infact,mostcircuitshadrejectedthe individual rights interpretation either explicitly or implicitly, evidently on the basis of perceived ambiguities in the text.8
5.128S.Ct.at2813n.23. 6.McDonaldv.CityofChicago,130S.Ct.48(2009). 7.478F.3d370(D.C.Cir.2007).ParkerbecameHellerintheSupremeCourtafter theD.C.CircuitheldthatMs.Parkerandfourofhercoplaintiffslackedstanding tobringsuit. 8.SeeBrannonP.Denning,CantheSimpleCiteBeTrusted?:LowerCourtInterpre tationsofUnitedStatesv.MillerandtheSecondAmendment,26CUMB. L. REV.961, 98199(1996)(collectingandcritiquingcases).TheoneclearexceptionistheFifth

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Two of the most commonly cited sources of ambiguity in the Second Amendment are the phrases well regulated Militia andkeepandbear.9 Itisfairtosaythatbothphrasesarearchaic.Forexample,a Westlaw search for all cases containing the phrase keep and bear without arms or firearms produces twentynine cases,alloftheminvolvingeitherakeepandbearharmless indemnity provision, actual live bears, or, most recently, a sexualharassmentcasefeaturingastuffedtoybearthatmade obscene noises when squeezed.10 Similarly, the phrase well regulated Militia includes an adjectival phrasewell regu latedthat is no longer used in standard English and a nounMilitiathat many people mistakenly equate with todaysNationalGuard.11TheNationalGuardisanorganized fighting force subject to federal control that foundingera Americans would likely have considered to be a standing armyprecisely the force that citizen militias were meant to opposeifnecessarytopreventtyranny. Ofcourse,theproblem oftextualambiguityis notremotely confined to the Second Amendment. Starting with the First Amendment, exactly what does it mean to establish[] or permitthefreeexerciseofreligion,andwhereisthelinebe tween permissibly regulating speech and unconstitutionally abridgingit?12TheThirdAmendmentprohibitsquarteringof troops in time of peace.13 America has occupying forces en gaged in combat operations in Iraq and Afghanistan and is
Circuit, which interpreted the Second Amendment as protecting an individual righttokeepandbeararmsbutconcludedthattherighthadnotbeenviolatedin thatcase.SeeUnitedStatesv.Emerson,270F.3d203(5thCir.2001). 9.U.S.CONST.amend.II. 10.Borges v. City of Hollister, No. C0305670 HRL, 2005 WL 589797, at *11 (N.D.Cal.Mar.14,2005). 11.See,e.g.,RichardA.Posner,InDefenseofLooseness:TheSupremeCourtandgun control,THE NEW REPUBLIC,Aug.27,2008,at32(equatingstatemilitias with the NationalGuard).Infact,thewordMilitiaasusedbytheFramersreferstowhat we now call the unorganized militia of the United States, which includes, amongothers,everyablebodiedmalecitizenoftheUnitedStatesbetweenseven teenandfortyfiveyearsold.See10U.S.C.311(a)&(b)(2)(2006);seealsoActof May8,1792,ch.33,1,1Stat.271(prescribingenrollmentofallfree,ablebodied white males between the ages of eighteen and fortyfive in the militia of the UnitedStates). 12.U.S.CONST.amend.I. 13.U.S.CONST.amend.III.

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wagingaglobalwaronterrorbesidessoareweatwaror at peace? And what exactly makes a search unreasonable undertheFourthAmendment?14Thelistgoesonandon. Simplyput,ambiguityisaninescapablefactoflanguageand lawparticularlyconstitutionallawandveryfewprovisions in the Constitution speak with anything approaching perfect clarity.Ambiguitywouldnotbeaproblemifjudgeshandledit consistently,butoftentheydonot.Instead,manyjudgestreatit as a linguistic ratchet whereby arguably ambiguous provisions that create or confer government power are given the broadest possiblescope,whilearguablyambiguouspowerlimitingprovi sionsareofteninterpretedsonarrowlyastorenderthemessen tially meaningless. Just consider the vastly different ways the Supreme Court has treated the powergranting Commerce Clauseinterpretingitasbroadlyashumaninventioncande vise15and the powerlimiting Ninth Amendment, which JudgeBorkfamouslylikenedtoaninkblot,16andwhichthe Courthasconsistentlytreatedassuch.Gunrightsandregula tionsprovideanexcellentillustrationofthatdynamic. II. Shortly after Heller came down in June 2008, Fourth Circuit JudgeJ.HarvieWilkinsonpublishedasensationalarticleinthe Virginia Law Review.17 The piece caused an immediate stir be causeJudgeWilkinson,awidelyrespectedconservativejurist, argued that Hellers interpretation of the Second Amendment asprotectinganindividualrighttokeepandbeararmswasan exampleofjudicialactivismonparwithRoev.Wadesdiscov eryoftherighttoanabortionwithintheDueProcessClauseof the Fourteenth Amendment.18 According to Judge Wilkinson, RoeandHellershareasignificantflaw:bothcasesfoundjudi
14.U.S.CONST.amend.IV. 15.See,e.g.,Wickardv.Filburn,317U.S.111,12829(1942)(reasoningthatCon gress could regulate even wholly intrastate, noncommercial, and individually trivial wheat production because such activity, viewed in the aggregate, would haveasubstantialeffectoninterstatecommerce). 16.ROBERT H. BORK, THE TEMPTINGOF AMERICA: THE POLITICAL SEDUCTIONOF THELAW166(1990). 17.J.HarvieWilkinsonIII,OfGuns,Abortions,andtheUnravelingRuleofLaw,95 VA.L.REV.253(2009). 18.Id.at26465.

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cially enforceable substantive rights only ambiguously rooted intheConstitutionstext.19 I respectfully disagree with Judge Wilkinson. As noted above, I do not believe there is anything remotely ambiguous abouttheSecondAmendmentscommandthattherightofthe people to keep and bear Arms, shall not be infringed.20 But far more troubling to me is the very natural way in which Judge Wilkinsons critique of Heller flows from his convic tionwidelyheldamongmodernconservativesthatjudges shouldbemodestintheirambitionsandoverruletheresultsof thedemocraticprocessonlywheretheconstitutionunambigu ouslycommandsit.21Fewwouldquibblewiththefirstpartof that maxim, except perhaps to note that when it comes to overweening ambition on the part of government officials there seems little reason to single out judges. But the second partisdeeplyconcerning. As explained above, constitutions rarely speak with perfect clarityonanysubjectthatissimplynottheirfunctionanda maximthatrequiresjudgestoremainpassiveunlesstheCon stitution unambiguously commands action is a recipe for virtu ally unbridled government power. Take gun regulations. The Constitutionestablishedafederalgovernmentoflimitedpow ers that did not include the police powerthat is, no roving chartertopasslawspromotingpublichealth,safety,andwel fare.ButCongresswieldsthatpoweranyway,regulatingeve rythingfromguns22tofuneralhomes23totheplantswegrowin our backyards.24 Does the Constitution really give the federal government the power to dictate the minimum length of a shotgunbarrel25ortellfarmershowmuchwheattheycangrow ontheirfarmsforpersonalconsumption?26Certainlynot.27But becausethosepowersare,atleastbysomelights,notunambi
19.Id.at257. 20.U.S.CONST.amend.II. 21.Wilkinson,supranote17,at255. 22.See,e.g.,18U.S.C.921929(2006)(codifyingtheGunControlActof1968, asamended). 23.SeeFuneralIndustryPractices,16C.F.R.453(2007). 24.SeeGonzalesv.Raich,545U.S.1(2005). 25.See26U.S.C.5845(2006). 26.SeeWickardv.Filburn,317U.S.111(1942). 27.SeeU.S.CONST.art.I,8.

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guously denied to Congress by the Constitution, judges have allowed Congress to exercise them. And because the right to growplantsandconsumethemisnotunambiguouslyprotected by the Constitution, Congress gets to regulate that, too. (Shortbarreled shotguns remain an open question for now.) Soifyouhaveeverwonderedhowitisthatwehaveafederal Department of Education and a National School Lunch Pro gram,28 it is not because the Constitution authorizes them; in stead, judges have done so by refusing to enforce clearly ex pressedlimitsonfederalpower. hus,theproblemwiththeostensiblyvalueneutralbrandof T judicialminimalismespousedbyJudgeWilkinsoninhisHeller critique is that it is not remotely valueneutral. Instead, it re flectsaveryclearbiasinfavorofmajoritarianism,abiasthatis only magnified by an interpretive methodology in which tex tual ambiguity always favors the government. Is it really modest29todemandofourConstitutionsomethingthatis, to speak with incontrovertible clarity about limits on govern ment powerthat it was never designed to do or to impose uponitaspiritofmajoritarianismthatisdistinctlybeliedboth byitstextanditsstructure?Ithinknot. Judicial minimalisms pretentions to neutrality are power fullyrefutedinarecentcritiqueofJudgeWilkinsonsarticleby Professor Nelson Lund and David Kopel.30 Taking Judge Wil kinsons thesis that courts should only impose limits on gov ernmentpowerthatarebasedonanincontrovertiblereading oftheConstitution,31LundandKopeldemonstratehowsubjec tivethatsupposedlyneutralframeworkreallyis.Aparticularly compelling illustration is when they apply Judge Wilkinsons ambiguitydriven minimalism to one of the Supreme Courts most iconic decisions, Brown v. Board of Education.32 As Lund and Kopel demonstrate, [o]n every single criterion [Judge Wilkinson] invokes in his attack on Heller, Brown was a far
28.42U.S.C.1758(b)(2006)(codifyingtheRichardB.RussellSchoolLunchAct). 29.Wilkinson,supranote17,at255. 30.NelsonLund&DavidB.Kopel,UnravelingJudicialRestraint:Guns,Abortion, and the Faux Conservatism of J. Harvie Willkinson III, 25 J.L. & POL. (forthcoming), availableathttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1309714. 31.Wilkinson,supranote17,at267. 32.347U.S.483(1954).

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more activist decision.33 This includes the text of the Equal Protection Clause, which courts initially read not to incon trovertibly forbid segregated schools (and in fact was not understood to do so until nearly a century after it was adopted), as well as the practical implications of the Brown decision, which dragged the courts into the political thick etsofanextraordinarilydivisiveissuethathasspawnedfar morelitigationthanHellereverwill. ThetensionbetweenthelaudableresultinBrownandJudge Wilkinsons critique of Heller is the inevitable consequence of an ethic in which governmentfavoring judicial restraint com petesuneasilywithoriginalism.Thattensionisevenmorepro nounced when it comes to unenumerated rights, which are specificallyrecognizedintheNinthAmendmentandprotected by the Fourteenth. This presents a dilemma for minimalists, who must either disavow unenumerated rights altogether or find some way to accommodate them within a doctrinal framework where they really have no place. Judge Wilkinson displaysaveryhumanambivalenceaboutthisdilemmawhen he acknowledges that even though he believes judges should notenforcesubstantiverightsonthebasisofambiguousconsti tutional provisions, the point should not be pushed to ex tremes.34 He then lists several substantive due process cases that he finds salutary.35 But Lund and Kopel are quick to pounce. They ask, quite reasonably, What makes Judge Wil kinsonsfavoredcasesdifferentfromdecisionsprotectingthe righttohaveanabortionorchoosehowmanyhourstoputin atwork?36Onlyonething,theyargue:JudgeWilkinsonagrees with the outcomes of his preferred cases on policy grounds.37
33.Lund&Kopel,supranote30,at16. 34.Wilkinson,supranote17,at258. 35.Id.at25859(citingLovingv.Virginia,388U.S.1(1967)(strikingdownlaws againstinterracialmarriage);Piercev.SocyofSisters,268U.S.510(1925)(striking downanOregonlawagainstsendingchildrentoprivateschools);andMeyerv. Nebraska, 262 U.S. 390 (1923) (striking down a Nebraska law forbidding the teachingoftheGermanlanguageinschools)). 36.Lund&Kopel,supranote30,at33(citingRoev.Wade,410U.S.113(1973), andLochnerv.NewYork,198U.S.45(1905)). 37.Id. Judge Wilkinson defends the results in Loving, Pierce, and Meyer on the grounds that all involved laws that represented the worst sort of bias toward racial,religious,andethnicminorities.Wilkinson,supranote17,at259n.14.That assertion is interesting because, in Pierce at least, there was no overt discrimina tion, but merely a requirement that all children attend governmentrun public

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Thatchargecanbedirectedwithequalforceatanothervener ableconservativejuristwhotookissuewiththeHellerdecision: JudgeRichardPosner. Writing in the New Republic two months after Heller came down, Judge Posner opined that [t]here are few more anti quated constitutional provisions than the Second Amend ment.38 He chides the majority in Heller for imposing a uni form rule (by which he actually means baseline, like we haveforspeech,religion,andvariouscriminalprocedures)for gun ownership and opening the door to many years of law suits that our litigious society does not need.39 Judge Posner then holds up as a laudable example of judicial restraint the notorious Kelo40 decision, in which the Supreme Court essen tially deleted from the Fifth Amendment the public use re strictiononthegovernmentseminentdomainpower.41 Judge Posner makes clear that he believes decisions about propertyandgunsbelonginthepoliticalarena,whereregu lationscan(atleasttheoretically)betailoredtolocalconditions andopinions.Thatisparticularlyso,saysJudgePosner,when thenationisdeeplydividedoveranissuetowhichtheConsti tutiondoesnotspeakwithanyclarity.42Butifthosearereally his terms, then neither guns nor property rights should be thrown to the political process. Both are protected by specific provisionsintheBillofRightsprovisionsthatspeakwithno less clarity than, say, the Eighth Amendments prohibition against cruel and unusual punishments43 or the First Amendmentsrequirementthatthepressnotbeabridg[ed],44 fromwhichJudgePosnerderivesblanketrulesagainststoning
schools.268U.S.at530.Onlybylookingbehindthegovernmentsassertedjustifi cationtodeterminewhatwasreallygoingonsomethingminimalistsaretypi callyloathtodoandwhichmanyhavecriticizedtheSupremeCourtfordoingin Lochnerwas the antiCatholic motivation for the law evident. Moreover, the decisionitselfwasnotbasedonreligiousanimus,butratherontheunenumerated right of parents and guardians to direct the upbringing and education of chil drenundertheircontrol,id.at53435,arightIsuspectmostAmericansheartily endorseandwouldexpectjudgestoprotect. 38.Posner,supranote11,at33. 39.Id.at34. 40.Kelov.CityofNewLondon,545U.S.469(2005). 41.Id. 42.Posner,supranote11,at34. 43.U.S.CONST.amend.VIII. 44.U.S.CONST.amend.I.

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adulterers and banning the Da Vinci Code, respectively.45 And farfrombeingdeeplydividedaboutprivatepropertyorgun rights, there is every indication of a national consensus that bothrightsreflectquintessentiallyAmericanvalues. Moreover, contrary to Judge Posners subjective belief that theSecondAmendmentisanantiquatedprovision,formany Americanstherighttokeepandbeararmsisatleastasimpor tantforitssymbolismasforitspracticaleffects.LiketheEstab lishment Clause, the Second Amendment is a pledge, a com mitment that no matter how historical circumstances or intellectualfashionsmightchange,ourgovernmentmaynotdo touswhatgovernmentsthroughouthistoryhavesooftendone totheircitizens:demandthatwerenderupbothourspiritual and our physical autonomy. After more than two centuries of democracy and religious pluralism, the possibility of a genu inely tyrannical government or a statesponsored religion in Americamayseemremote.Butformanyofus,itremainsnot onlyacomfortbutasourceofpridethatweliveina country wherethegovernmentisspecificallyforbiddenfromdisarming itscitizens,nomatterwhatitsstatedjustifications. To his credit, Judge Posner acknowledges something that most minimalists do not: that his preference for what he calls judicial modesty is a purely subjective one that cannot be derivedbysomelogicalprocessfromconstitutionaltextorhis tory.Itwouldhavetobeimposed.46Indeed. Let this be absolutely clear then: There is nothing remotely modest about a judicial ethic that would drain the Second Amendmentofallpracticalmeaningonthebasisofperceived ambiguity or obsolescence. That is particularly so when dec ades of judicial passivity have allowed the other branches of government to disregard the principle of enumerated powers and make a mockery of the Framers plan for limited govern ment.Overthepastseventyfiveyears,thefederalgovernment has expanded into a behemoth of unfathomable scope and complexity, wielding powers and pursuing policies in direct conflictwiththetext,history,andpurposeofourConstitution. Theethicofrestraintthatallowedthattohappenwas,asJudge Posner candidly acknowledges, a matter of discretionary
45.Posner,supranote11,at34. 46.Id.at35.

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choiceonthepartofjudgeswhoseemtohaveelevatedtheir personal preference for majoritarianism above the text of the documenttheysworetouphold.Tocallthatmodestyseems, well,rathertoomodest. III. owisanespeciallyimportanttimetoreflectonthesemat N ters because postHeller gun litigation has presented the Su premeCourtwitharemarkableopportunitytorevisitthescene of a constitutional miscarriage in which ambiguity, minimal ism,andfalsemodestyproducedaglaringexampleofjudicial activism that can and should be corrected. And there may never be a better vehicle for that correction than the issue of whether the Fourteenth Amendment protects an individual righttokeepandbeararmsagainstinfringementbythestates. Foranoriginalist,theanswertothequestionwhethertheFour teenthAmendmentprotectstherighttokeepandbeararmsis an easy and obvious affirmative. The real question is how the FourteenthAmendmentprotectsthatright.Andthereinliesthe SupremeCourtsopportunitytorevisitadecisioninwhichfive Justicesdefiedthewillofthepeoplebyelevatingtheirprefer encesforrestraintoverthenationscallforaction.47Thehistory isstraightforwardbutcritical. hen the Fourteenth Amendment was ratified in 1868, na W tional leaders were trying to piece back together a country rivenbyfouryearsofcivilwarandtheabominationofchattel slavery.Theconflictoverslavery,ofcourse,longpredatedthe outbreakofwar,andslavestateshadawellknownhistoryof violating basic civil liberties like free speech and assembly in their attempts to suppress abolitionist sentiment. And it quicklybecameevidentthatneitherthelossofthewarnorthe formalabolitionofslaverywasgoingtoendthosepractices.To the contrary, the former states of the Confederacy made clear bywordanddeedtheirintenttokeepblacksinastateofcon
47.Properly understood, judicial activism occurs when judges resolve cases basedontheirpersonalpreferencesorpredilectionsinsteadofvalidlyenactedlaws orconstitutionalprovisionsthatconflictwiththosepreferences.Althoughitmight seem anomalous to describe as activist a court decision that refused to strike down a challenged law, refusing to enforce constitutional limits on government poweriseverybitasactivistasimposingconstitutionallimitswherenoneexist.

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structive servitude through the continued violation of basic civil rightsparticularly including free speech, armed self defense,andeconomicopportunitytheexerciseofwhichhas traditionallydistinguishedfreecitizensfromenslavedsubjects. Congress moved swiftly to curb those abuses, both through legislation,48and,toanswerdoubtsabouttheconstitutionalityof those laws, through the enactment of the Fourteenth Amend ment. Simply put, the Fourteenth Amendment empowered the federalgovernmenttostampoutacultureoflawlessoppression in which newly free blacks and their white supporters were systematically terrorized, marginalized, and silenced in a bla tantattempttostopthemarchofhistorytowardfreedom. AttheheartoftheFourteenthAmendmentliesitscommand that [n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.49 Unlike today, the term privileges or immunities wasincommonusageatthetimetheFourteenthAmendment was drafted and appears to have been synonymous with the wordrightsasweunderstandittoday.50Exactlywhichrights were included within the ambit of the privileges or immuni tiesofcitizensoftheUnitedStatescouldnotbefullyenumer atedintheFourteenthAmendmentanymorethantheycould intheBillofRights.51Itisnotdifficulttounderstandwhy:Al though partially reflected in the notorious Black Codes of the time, the oppression of freedmen and their white supporters wasnotconfinedtoanyparticularsetoflawsorsomeofficial policythatcouldbefixed,identified,andproscribed.Insteadit wasanethos,adeterminationtomaintainwhatamountedtoa slave culture in defiance of Reconstruction Republicans de termination to end it. The idea that a constitutional provision designedtoeliminatesuchaculturecouldbedraftedwithper fectandcomprehensiveclarityisabsurd.Yet,thatisprecisely thebasisonwhichvariousscholarsandjudgeshaveadvocated
48.E.g.,FreedmansBureauAct,ch.200,14Stat.176177(1866);CivilRightsAct of1866,ch.31,14Stat.27. 49.U.S.CONST.amend.XIV,1. 50.See, e.g., MICHAEL K. CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENTANDTHE BILLOF RIGHTS6465(1986)(notingthatthewordsrights, liberties,privileges,andimmunities,seemtohavebeenusedinterchangeably). 51.See U.S. CONST. amend. IX (The enumeration in the Constitution, of certain rights,shallnotbeconstruedtodenyordisparageothersretainedbythepeople.).

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ignoringthePrivilegesorImmunitiesClause,startingwiththe fiveJusticemajorityinthe1873SlaughterHouseCases.52 SlaughterHouse involved a constitutional challenge by a group of butchers to a Louisiana law that created a state chartered monopoly on the sale and slaughter of animals in New Orleans. The law did not prevent the butchers from working, but it required them to do so in a slaughterhouse operatedbyasinglecompanytowhichtheywererequiredto payvariousfeesinreturnforusingitsfacility.53Thebutchers argued that prohibiting them from working independently constitutedaviolationoftheirrightsundertheThirteenthand Fourteenth Amendments, which had not yet been interpreted bytheSupremeCourt.54Inparticular,theyarguedthatamong the privileges or immunities protected by the Fourteenth Amendmentwastherighttoearnalivingintheoccupationof their choice free from unreasonable, and, more specifically, anticompetitivegovernmentregulations.55 In dismissing the butchers claims, the fiveJustice majority began by rejecting the factual premise upon which they were based. According to Justice Miller, a critical examination of the act hardly justifies [the butchers] assertions that it de privedthemoftheabilitytopracticetheirtrade.56Themajority didnotstopthere,however,astruemodestymighthavecoun seled. Instead, it went on to construe the Due Process, Equal Protection, and Privileges or Immunities Clauses of the Four teenth Amendment as largely meaningless provisions that were not intended to significantly alter the balance of power betweenthefederalandstategovernments.Themajorityinter pretedthePrivilegesorImmunitiesClauseasprotectingonlya narrowandidiosyncraticsetofrightsofnationalcitizenship, suchasaccesstonavigablewaterwaysandtheabilitytoinvoke the protection of the federal government when on the high seas.57But,ofcourse,thosewerenottherightsoverwhichwe foughtaCivilWar,norweretheytherightswhosesystematic
52.83U.S.(16Wall.)36(1873). 53.Id.at5960. 54.Id.at6667. 55.Id.at60. 56.Id. 57.Id.at7880.

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violation provoked numerous stern responses from Congress, culminatingintheFourteenthAmendmentitself. Like Judge Wilkinsons and Judge Posners critiques of Heller,JusticeMillersopinioninSlaughterHouseisovertlycon sequentialist.Inthatopinion,JusticeMillermisquotesconstitu tionaltext,58ignoresbothhistoryandcurrentevents,anddefies what appears to have been widespread popular understand ing,59 all because of his personal conviction that giving the Privileges or Immunities Clause its intended effect would cause a radical and improvident shift in power from the statestothefederalgovernment.60Indeed,theactivistnatureof thedecisionwasreadilyapparentatthetime,promptingconsti tutional scholar Christopher Tiedeman, for example, to praise themajorityforhavingdaredtowithstandthepopularwillas expressedintheletterofthe[Fourteenth]amendment.61 Several Justices wrote powerful and, particularly in hind sight, compelling dissents. As Justice Stephen Field correctly observed, the majoritys construction of the Fourteenth Amendment,particularlythePrivilegesorImmunitiesClause, rendered the Amendment a vain and idle enactment, which accomplishednothing.62Similarly,afterconductingafarmore searching(andforthright)analysisoftherelevanttextandhis torythan did the majority, Justice Bradley concluded thatit was the intention of the people of this country in adopting [the Fourteenth Amendment] to provide National security againstviolationbytheStatesofthefundamentalrightsofthe citizen.63 Justice Swayne too recognized the majoritys activ ism, observing that its construction of theFourteenth Amend ment defeats, by a limitation not anticipated, the intent of
58.Compareid.at75(misquotingthetextofArticleIVsPrivilegesandImmuni tiesClause),withid.at117(Bradley,J.,dissenting)(explainingthesignificanceof JusticeMillersmisquotation).ThesignificanceofJusticeMillersmisquotationof ArticleIVisalsodiscussedinCURTIS,supranote50. 59.SeeDavidT.Hardy,OriginalPopularUnderstandingoftheFourteenthAmend mentasReflectedinthePrintMediaof18661868,30WHITTIERL.REV.695(2009). 60.SlaughterHouse,83U.S.at7778. 61.DavidN.Mayer,TheJurisprudenceofChristopherG.Tiedeman:AStudyinthe Failure of LaissezFaire Constitutionalism, 55 MO. L. REV. 93, 121 (1990) (quoting CHRISTOPHER G. TIEDEMAN, THE UNWRITTEN CONSTITUTION OF THE UNITED STATES: A PHILOSOPHICAL INQUIRY INTOTHE FUNDAMENTALSOF AMERICAN CON STITUTIONALLAW10203(1890)). 62.SlaughterHouse,83U.S.at96(Field,J.,dissenting). 63.Id.at122(Bradley,J.,dissenting).

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those by whom the instrument was framed and of those by whomitwasadopted.64 Few if any constitutional provisions have attracted more academic attention than the Fourteenth Amendment, much of it devoted to the Privileges or Immunities Clause specifically. The history of that scholarship shows remarkable parallels to that of the Second Amendment. In both cases, the respective provisionswereportrayedinitiallyashavinglittlepracticalsig nificance on the basis of limited scholarship that later proved seriouslydeficient.Andinbothcases,morerigorousscholarship wouldproducesomethingveryclosetoanacademicconsensus: thattheSecondAmendmentdoesprotectanindividualrightto keep and bear arms, and that the SlaughterHouse majoritys interpretation of the Privileges or Immunities Clause should havebeenseriouslydoubtedbyanyonewhoreadtheCongres sional debates of the 1860s.65 In short, by draining the Privi leges or Immunities Clause of any practical significance, the Supreme Court defied the will of the people as lawfully ex pressedintheirhighestgoverninglaw,anditdidsounderthe banner of judicial restraint. So much for the idea that judicial minimalismnecessarilyreflectsjudicialmodesty. TheSupremeCourtsprogovernmentactivism inSlaughter House produced a bitter harvest, including the advent of Jim Crow, a system of racial segregation and oppression that the FourteenthAmendmentwasdesignedtopreventandthatthe Amendment specifically charged judges with the duty to re sistadutytheywouldcontinuetoshirkfornearlyacentury. And although Jim Crow may have been the most flagrant abuse, it was certainly not the only one. As a result, the Su premeCourtfacedadifficultchoice:continuetoignoretheex
64.Id.at129(Swayne,J.,dissenting). 65.ERIC FONER, RECONSTRUCTION: AMERICAS UNFINISHED REVOLUTION, 1863 1877,at530(1988);seealsoAKHILREEDAMAR,THEBILLOFRIGHTS:CREATIONAND RECONSTRUCTION 213 (1998) (explaining [t]he obvious inadequacy of Millers opinionon virtually any reading of the Fourteenth Amendment in Slaughter House); Richard L. Aynes, Constricting the Law of Freedom: Justice Miller, the Four teenth Amendment, and the SlaughterHouse Cases, 70 CHI.KENT L. REV. 627, 627 (1994) (arguing that everyone now agrees SlaughterHouse was wrongly de cided);ThomasB.McAffee,ConstitutionalInterpretationtheUsesandLimitationsof OriginalIntent,12U.DAYTONL.REV.275,282(1986)(observingthatthisisoneof the few important constitutional issues about which virtually every modern commentatorisinagreement).

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pressed will of the people that basic civil rightsincluding those reflected in the Bill of Rightsbe protected from gov ernment abuse, or reexamine the Fourteenth Amendment to determine the true purpose and effect of all its provisions. Un fortunately,theCourtdidneither.Instead,itpressedintoservice the obscure and, to some, paradoxical doctrine of substantive dueprocess,withwhichiteventuallyincorporatedagainstthe statesmostofthetwodozenorsosubstantiveprovisionsinthe Bill of Rights, along with a handful of unenumerated rights deemed sufficiently fundamental to warrant meaningful ju dicialprotection. But substantive due process has proved unsatisfactory for a number of reasons. To begin with, there is the incongruity of thetermitself,whichJohnHartElydescribedasbeingakinto green pastel redness.66 Despite a real historical pedigree de rivedfromlawofthelandprovisionsinsomestateconstitu tionsandEnglishcommonlaw,67thesemanticcontrastbetween process and substance makes substantive due process an easyconcepttobelittle.AndtheSupremeCourtsdelayinus ingthetermsubstantivedueprocessuntildecadesafterthe Fourteenth Amendments ratification further diminishes both its pedigree and its credibility, particularly among those who aredisinclinedtowardunenumeratedrightstobeginwith. Yet, contrarytothe SupremeCourtsdismissivetreatment of theFourteenthAmendmentinSlaughterHouseanditsprogeny,68 it was clearly intended to do somethingthe question is what. ButthatisaquestionfromwhichminimalistslikeJudgeBork positively flee, asserting, unpersuasively, that the answer is forever shrouded in the mists of time.69 To the contrary, as
66.JOHN HART ELY, DEMOCRACYAND DISTRUST: A THEORYOF JUDICIAL REVIEW 18 (1980). Of course, the fact that substantive due process has been subjected to criticismdoesnotmakethatcriticismcorrectorthedoctrinewhollyillegitimate. SeeJamesW.Ely,Jr.,TheOxymoronReconsidered:MythandRealityintheOriginsof SubstantiveDueProcess,16CONST.COMMENT.315(1999). 67.SeeBERNARD H. SIEGAN, ECONOMIC LIBERTIESANDTHE CONSTITUTION24 59(1980). 68.Presser v. Illinois, 116 U.S. 252 (1886); United States v. Cruikshank, 92 U.S. 542(1876). 69.See BORK, supra note 16 (endorsing the Supreme Courts decision to render the Privilges or Immunities Clause a dead letter); cf. id. at 185 (describing as inconceivable the notion that the Ninth Amendment was intended to confer uponjudgesthepowertoenforcerightsnotspecificallyenumeratedinthefederal orstateconstitutions).

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explained aboveand as the dissenting Justices in Slaughter Houseunderstoodverywellitisactuallyquiteclearwhythe Fourteenth Amendment was enacted and equally clear what problem it was intended to address: namely, the wholesale violation of civil rights by Southern officials determined to keep newly free blacks in a state of constructive servitude while silencing and terrorizing anyonewhite or blackwho presumed to stand in the way. The Fourteenth Amendment is worded broadly because the evils it was intended to address were broad. That its framers chose to combat these many evils comprehensively, and with reference to general principles, providesnowarranttobowdlerizetheirhandiwork. Among those evils was the widespread disarmament of blacks and whites, including former Union soldiers, in Southern states following the Civil War. That history is indisputable, as is the fact that the thirtyninth Congress receivedextensivetestimonyaboutincidentsofdisarmament.70 Indeed, it is doubtful whether any right was mentioned more often in connection with the Fourteenth Amendment than the right to keep and bear arms.71 Thus, from an originalist standpoint, the syllogism is simple and unassailable: The Fourteenth Amendment was enacted in response to a particular problem. That problem was the systematic oppression of blacks and their white supporters in the former states ofthe Confederacy. It was tobe solved by empowering federalofficials,particularlyjudges,toprotectthefundamental
70.See, e.g., H.R. REP. NO. 3930, pt. 4, at 49 (1866) (relating testimony that armed patrols in Texas, acting under the supposed authority of the Governor, passedaboutthroughsettlementswherenegroeswereliving,disarmedthem tookeverythingintheshapeofarmsfromthemandfrequentlyrobbedthem); CONG. GLOBE,39thCong.,1stSess.915(1866)(statementofSen.Wilson)(There isoneunbrokenchainoftestimonyfromallpeoplethatareloyaltothiscountry, thatthegreatestoutragesareperpetratedbyarmedmenwhogoupanddownthe country searching houses, disarming people, committing outrages of every kind anddescription.);id.at40(1865)(statementofSen.Wilson)([R]ebelStateforces, menwhowereintherebelarmies,aretraversingtheState,visitingthefreedmen, disarming them, perpetrating murders and outrages upon them; and the same thingsaredoneinothersectionsofthecountry.);seealsoSTEPHEN P. HALBROOK, FREEDMEN,THE FOURTEENTH AMENDMENT,ANDTHE RIGHTTO BEAR ARMS,1866 1876,at7,18,37(1998)(describingbothcongressionaltestimonyandcontempo raneouspressaccountsregardingdisarmaments). 71.SeeMichaelAnthonyLawrence,SecondAmendmentIncorporationthroughthe Fourteenth Amendment Privileges or Immunities and Due Process Clauses, 72 MO. L. REV.1(2007).

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civilrightsofAmericancitizensthroughoutthenationagainst state infringement. Among those rights was the ability to possess guns for armed selfdefense. Therefore, the federal government was empowered by the Fourteenth Amendment to remedy state violations of the right to armed selfdefense. The only remaining question is which provision of the Fourteenth Amendment was intended to protect that right, andthattooisaneasyquestionfromanoriginaliststandpoint because there is only one plausible candidate: the Privileges orImmunitiesClause. In sum, it is abundantly clear from the history surrounding the Fourteenth Amendment that it was both intended and understoodtoprotecttherighttokeepandbeararmsforself defense. It is equally clear that the Privileges or Immunities Clausewastheprovisiondesignedtodothatjob.Andthough theSupremeCourtbadlymisreadthePrivilegesorImmunities Clause in SlaughterHouse and its progeny, there is no reason why it cannot go back and correct those decisions. Indeed, many would argue that one of the Courts finest hours was when it corrected another Reconstructionera precedent that failed to give full effect to a different provision of the FourteenthAmendment,theEqualProtectionClause.72 Unfortunately, there is concern about whether the Supreme CourtwilldecidetorevisitSlaughterHouseinordertorecover an originalist understanding of the Fourteenth Amendment. Among the reasons for that concern is that the history of the Fourteenth Amendmentand the Privileges or Immunities Clause in particularindicates that those who drafted and ratified it did so with a purpose that is anathema to many modernjurists:namely,toconferuponjudgesboththepower and the duty to protect a broad range of rights that are not spelledoutinthetextoftheConstitution.Thus,toimplement the original understanding of the Privileges or Immunities Clause, judges would have to use judgment. They would have to confront the reality of what Southern states were doing to citizens during Reconstruction, identify the values that Southernstateshadsufficientlyoffendedsoastopromptthree separate amendments to the Constitution, and faithfully
72.ComparePlessyv.Ferguson,163U.S.537(1896)(permittingstatemandated racial segregation on trains and announcing the separate but equal doctrine), withBrownv.Bd.ofEduc.,347U.S.483(1954)(repudiatingPlessy).

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protect those values against the abuses and infringements to whichtheyremainsubjecttoday. Thedutytoprotectthesevalueswouldinclude,forexample, protectingthevariouseconomicfreedomsthatwereconsistently targeted by Black Codes in an effort to exclude freedmen from civil society and ensure that all aspects of their material well beingfrom how they earned a living, to their ability to own property and enter into contracts, and even their freedom to moveaboutinsearchofbetteropportunitieswereamatterof white largesse and not individual selfdetermination. Those same freedoms are still under assault today, sometimes on the basisofracialanimus,butmoreoftenfromgovernmentofficials seekingtopromotetheagendaofvariousinterestgroupsatthe expenseofindividualswhostandintheway. The possible consequences, good or bad, of adopting a genuinely originalist interpretation of the Fourteenth Amendment should not drive the Justices decision about whethertoprotecttherighttokeepandbeararmsthroughthe Privileges or Immunities Clause. A more humble approach wouldbesimplytodotheirbesttounderstandandapplythe text of the Constitution as written, notwithstanding any personal proclivities for restraint, majoritarianism, or other valuesnotembodiedinthedocument. In that regard, it should be understood that the Fourteenth Amendmentwasnotagestureofmodesty;itwasaheroicact ofnationalwill.Itwasspecificallyintendedtoempowerjudges and call them to action, not restraint. The Fourteenth Amendmentisnotamajoritariantext,andneitheristherestof the Constitution. Nor does anything in the Constitution stand for the proposition that uncertainties should always be resolvedinfavorofmoregovernmentpower.Butthatwasthe misguided spirit of SlaughterHouse, and the time has come to rejectit.Thatthebestopportunitytodososhouldariseinthe context of what many consider to be the quintessentially Americanrighttherighttokeepandbeararmsindefenseof oneselfandoflibertyisentirelyfitting.