Byline: Ilya Shapiro , SPECIAL TO THE WASHINGTON TIMES
In the landmark case District of Columbia v. Heller, the Supreme Court found that the Second Amendment protects an individual right to keep and bear arms. Because the District is a federal enclave, however, the court stopped short of deciding whether the Second Amendment applies to the states - and whether individuals can assert its protections against gun regulations in places like Chicago, New York and San Francisco.
In March, the Supreme Court will begin to answer this unresolved question - already answered affirmatively just last week by Washington state's Supreme Court - when it hears arguments in McDonald v. Chicago, a challenge to Chicago's handgun ban - in which the final briefs were filed earlier this month.
One of the things many people don't realize is that the case is much more about the 14th Amendment than the second, because the original conception of the Bill of Rights - including the Second Amendment - only applied its protections to the federal government. It was not until the post-Civil War 14th Amendment that the Constitution protected individual rights against state tyranny, guaranteeing that no state could, for example, deprive any person of life, liberty, or property without due process of law.
Using this due-process clause, the Supreme Court has selectively applied almost all of the Bill of Rights against the states. Through this incorporation, as it is called, individuals gained the ability to challenge state violations of the freedom of speech, the right to be secure against unreasonable searches and a host of other rights. Based on such precedents, the Second Amendment could easily be incorporated against the states through the due process clause.
A different 14th Amendment clause, however, forbidding states from passing any law which shall abridge the privileges or immunities of citizens of the United States, is a better way of extending the right to keep and bear arms. This privileges or immunities clause provides an approach that not only is more historically accurate, but prevents some of the judicial overreach legal observers of all stripes deride.
But what are these privileges or immunities, and why haven't we heard much about them? In 1868, when the 14th Amendment was ratified, privileges or immunities was a term of art referring to a specific set of common-law rights that all free people possess and the government cannot abridge. Think of the Declaration of Independence's certain unalienable rights, but a century later. …