November 23, 2009

(Washington, DC) - The American Center for Law and Justice (ACLJ) – focusing on constitutional law – today filed an amicus brief with the Supreme Court of the United States asking the high court to overturn a lower court ruling and rely on the Privileges or Immunities Clause of the Fourteenth Amendment, rather than the Due Process Clause, to protect the individual guarantees contained in the Bill of Rights, such as the Second Amendment right to keep and bear arms.  The Supreme Court will hear oral arguments this term in the case of McDonald v. City of Chicago. (08-1521)

“This case involves applying the proper balance between the rights of the federal government and the states,” said Jay Sekulow, Chief Counsel of the ACLJ.  “The Fourteenth Amendment was passed to ensure all of the protections of U.S. (federal) citizenship were available to the freed slaves in all of the states where they resided, and that the basic protections of the Bill of Rights would be used to ensure that no state could act to deny those rights.  At the same time, the power of the federal government must be properly limited.  In our view, that balance is struck through the Privileges or Immunities Clause of the Fourteenth Amendment, which applies the rights enumerated in the Bill of Rights, rather than what many have labeled the ‘discovered’ rights that courts have found in the Due Process Clause.”

In McDonald v. Chicago, the Supreme Court will consider whether the Second Amendment to the Constitution is incorporated against the states in order to prevent adverse state action from infringing on the right to keep and bear arms. 

The constitutional structure of our government initially provided that only the federal government, but not the states, was limited in the actions it could take by the Constitution’s first ten amendments, the Bill of Rights.  Following the Civil War, with passage of the Fourteenth Amendment, the protections of the Bill of Rights were expanded to also limit the actions of the states.  For more than 100 years, the Supreme Court has used the Due Process Clause of the Fourteenth Amendment to enforce certain rights, characterized as fundamental, against the states, including some, but not all of the specified, or enumerated rights in the Bill of Rights.  This has led to the incorporation, or application to all the states, of such un-enumerated rights as the right to privacy, which has been used to justify late-term abortion on demand and other controversial practices. 

In its amicus brief, the ACLJ argues that the Privileges or Immunities Clause of the Fourteenth Amendment, rather than the Due Process Clause, is the proper method for protecting the individual guarantees contained in the Bill of Rights, such as the Second Amendment right to keep and bear arms, against adverse state restrictions, precisely because these written, enumerated rights make up the basic privileges and immunities of federal citizenship.

The ACLJ contends that incorporating the application of the Bill of Rights to the states this way, rather than through the Due Process Clause, both ensures these basic rights are protected, and that courts are properly restrained in otherwise “discovering” rights not specifically enumerated, such as the right of privacy supporting abortion. The brief discusses the historical understanding of the terms “privileges” and “immunities,” beginning with William Blackstone – one of the most influential sources of legal theory for our founding fathers – and concluding with the principal drafter of the Fourteenth Amendment, Rep. John Bingham.

The ACLJ amicus brief is posted here.

Led by Chief Counsel Jay Sekulow, the American Center for Law and Justice focuses on constitutional law and is based in Washington, D.C.