Opinion Editorial

14th Amendment has 2nd's back

By Timothy Sandefur
published on Fredericksburg.com
February 26, 2010

Timothy Sandefur PLF Principal Attorney

A high-profile case now at the Supreme Court targets Chicago's handgun ban. But while gun-owners' rights are at issue, the case might prove even more important for the nation's entrepreneurs and the principles of free enterprise, depending on how the court rules.
Two years ago, a majority of the justices held for the first time that the Second Amendment protects an individual right to "keep and bear arms." Now, in McDonald v. Chicago, the court will decide whether the Second Amendment applies to states and localities as well as the federal government.

But the decision could have broader implications: The justices are being asked to revisit a century-old precedent that severely curtailed constitutional protections for the fundamental right to earn an honest living and operate a business without unreasonable regulatory constraints.

In the years following the Civil War, the Constitution was amended to require states to respect the rights of all Americans, regardless of race. The 14th Amendment declared, among other things, that states could not "abridge the privileges or immunities of citizens of the United States." Correctly interpreted, these "privileges or immunities" include the freedom to engage in free enterprise.

But in 1873, in its first decision interpreting this language, the Supreme Court essentially rendered it meaningless. Although the amendment's authors said that it would protect the rights "recognized by the common law in the Constitution of the United States in the constitutions of the different States [and] in the Declaration of Independence," the court disagreed. It held that the term "privileges or immunities" protected only a very narrow set of freedoms, essentially imposing few limits on arbitrary government actions.

The ruling is known as the Slaughter-House Cases, because it involved a group of New Orleans butchers who challenged the constitutionality of a law restricting their right to slaughter cattle. All slaughtering was ordered to be done at a single, privately owned company designated by the state. Overnight, hundreds of butcher-shop owners found themselves out of business. It's as if the state of California declared that all cars in Los Angeles had to be repaired at Jiffy Lube--shutting down every other auto shop.

In their legal challenge, the butchers argued that this state favoritism toward a competing company deprived them of their "privileges or immunities." Courts had recognized rights against unjust business regulations since at least 1602, when England's highest court declared that monopolies were illegal under the Magna Carta. But the Louisiana butchers didn't fare as well. In a 5-4 decision, the Supreme Court declared that the 14th Amendment did not protect businesspeople from regulatory abuse by their own states.

The implications were profound. In post-Civil War America, Southern states were routinely violating the rights of recently freed slaves, enacting laws that subverted not only the right to earn a living, but freedom of speech, freedom of travel, and the right to possess firearms. The Slaughter-House decision gave states and localities wide berth to curtail freedoms, and it would be another century before the federal government put serious effort into ending state abuses.

In the second half of the 20th century, courts did begin to champion civil rights, but they did so by relying on other constitutional provisions. The "privileges or immunities" clause was allowed to remain dormant--along with the protections it should extend to economic freedom. Even today, courts often refuse to provide any but the most cursory protection for the rights of business owners. Instead, lawmakers are generally free to impose all but the most irrational limits on the freedom to buy, sell, trade, work, or create wealth.

The gun-rights case carries the potential for fundamental change. The attorneys for the gun owners argue that states and local governments should be required to respect the right to keep and bear arms because this is one of the "privileges or immunities" protected by the Constitution.

If the Court agrees, and overrules its 1873 decision, we could see a new level of protection for constitutional freedoms of all sorts: not just gun rights, but the right of business owners and entrepreneurs to be free of harassment and anti-competitive conduct by state governments. It is long past time that the 14th Amendment was given its true and full meaning--and that courts extended full protection to the right of all Americans to earn a living without unfair government interference.

Timothy Sandefur is an attorney with the Pacific Legal Foundation.