[Andy K]

In their amicus brief in the McDonald case that incorporated the second amendment via the privileges or immunities clause, the Calguns Foundation focused solely on arguing that Charles Fairman and Raoul Berger were mistaken to argue the Fourteenth Amendment’s privileges or immunities clause did not incorporate the first eight amendments to the constitution. https://www.scotusblog.com/wp-content/uploads/2020/10/CalgunsFound_Jaffee.pdf

One of their arguments was that Fairman and Berger failed to understand that John Bingham disagreed with Barron v. Baltimore and designed the amendment to remedy that bad case. The view that Barron was incorrect was shared by Rothbard in Conceived in Liberty Volume Five where he argued

“The Second Amendment guaranteed that ‘the right of the people to keep and bear Arms, shall not be infringed.’ While the courts have enumerated the clause to apply only to Congress, leaving the states free to invade this right, the wording makes it clear that the right ‘shall not be infringed,’ period. Since states are mentioned in the body of the Constitution and restrictions placed upon them there as well, this clause evidently also applies to the states. Indeed, the subsequent amendments (three to nine) apply to the states as well as to the federal government; only the First Amendment specifically restricts Congress alone.”

Although I think Bingham and Rothbard are incorrect that Barron was wrongly decided, the brief makes some good points that Fairman and Berger may be mistaken (although section V of the brief is worthless).

Alternately, even Berger might have admitted that the states cannot prohibit the citizens from keeping and bearing arms. In Government by Judiciary, Berger argues that Justice Field’s dissent in the Slaughterhouse Cases was an “accurate account of the framers’ intention[.]”

Field argued that the privileges or immunities clause prevented states from abridging “those privileges and immunities which were, in their nature, fundamental, which belong of right to citizens of all free governments, and which have at all times been enjoyed by the citizens of the several States which compose the Union, from the time of their becoming free, independent, and sovereign[.]” Field cited to the Civil Rights Act of 1866 in declaring them to “include the right ‘to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold, and convey real and “personal property, and to full and equal benefit of all laws and proceedings for the security of person and property.'” He then cited to Corfield v. Coryell to argue they included “protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may justly prescribe for the general good of the whole.”

Berger concurred with this analysis. He stated that “the purpose of the framers was to protect blacks from discrimination with respect to specified ‘fundamental rights,’ enumerated in the Civil Rights Act and epitomized in the section 1 ‘privileges or immunities’ clause. He quotes William Lawrence and Samuel Shellabarger for the proposition that these are the absolute rights of life, liberty, and property, along with their “necessary incidents” The necessary incidents include the right to contract and sue because these are “necessary . . . [for] the protection of the rights of person and property of a citizen.”

Along with the right to contract and sue, is not the right to keep and bear arms necessary for the protection of the rights of person and property of a citizen? In fact, Justice Taney in the Dred Scott decision stated that the privileges and immunities of citizens included the right “to to keep and carry arms wherever they went.

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