Among the majority, 4, Alito, Roberts, Scalia, and Kennedy, decided only on the basis of the Due Process Clause of the 14th Amendment. Justice Thomas concurred in the judgment but maintained the proper basis for the decision was the Privileges and Immunities Clause of the 14th Amendment.
This is a landmark decision and a victory for gun rights advocates.
This article is to go beyond saying what most other RKBA supporters will say, and examine what "privileges and immunities" are not reasonably covered as "due process", which if presented to the Court would require it to reverse Slaughterhouse. My position, contrary to Sullivan, is that the First Amendment falls into that category. I also argue that the Second Amendment does, although four of the five seem willing to jam the RKBA into the Due Process Clause. I wonder what they are going to do about deciding what regulations of firearms are "reasonable", because that is full of P&I-only issues.
There are several kinds of due process, such as legislative and administrative, but the due process of the Bill of Rights is judicial, about what happens between filing a court case and giving notice to the final disposition of all matters. Although "privileges and immunities" includes everything that is covered by "due process", there are also rights that are not included in "due process", rights not to have things done by government officials outside the judicial context as well.
Consider the First Amendment. It states "Congress shall make no law ... abridging ..." The rights it defines are not just to be treated fairly if there is an abridging statute passed, but to not have the statute passed in the first place. It is not necessary to wait until a statute is applied, or someone is injured in an unlawful enforcement action. It is supposed, by original understanding, to be able to get a statute struck down before it is applied to anyone, as a private prosecution of a public right.
The Second Amendment states "shall not be infringed". That doesn't just mean in court. The people have a right not to have government even attempt to infringe their right to keep and bear arms, before they actually do it to anyone. They also have the right to be organized and trained as militia, and to be kept in a constant state of readiness sufficient to meet any threat, and failing action on the part of public officials to do so, to organize, train, and equip themselves independently of such officials. That is not just about what happens in the judicial process.
The judges on the Supreme Court know all this. Cramming the RKBA into the Due Process Clause is a stretch, and they know it. They are avoiding something, and what they are avoiding is the Ninth Amendment, which, if properly expanded, includes many rights that fairly clearly do not have the character of "due process".
Clues are provided in several passages in the Oral Argument (March 2, 2010):
Ginsburg: What unenumerated rights would we be declaring privileges and immunities ... ?
Scalia: ... what you argue is the darling of the professoriate, for sure, but it's also contrary to 140 years of our jurisprudence. Why do you want to undertake that burden instead of just arguing substantive due process? Which, as much as I think it's wrong, I have -- even I have acquiesced in it.
Ginsburg: What other [un]enumerated rights? What does the privileges and immunities of United States citizenship embrace?
Ginsburg: ... then it's not one expression of this unenumerated rights, natural rights, or the rights that any free society ...
The mention of unenumerated rights occurs often enough that it provided a backdrop to everything else said in oral argument. The members of the Court seem inordinately reluctant to open that line of jurisprudence, even though the text of the Constitution and 14th Amendment clearly requires it.
The rights, or more precisely, privileges and immunities, of the Bill of Rights, can be mostly put into two categories:
- Rights to a presumption of nonauthority -- due process.
- Rights to the means to effectively supervise public officials -- partly but largely not due process.
It is (2) above that scares the judges, as well it should. One of the main areas of erosion of our rights has been to make practically inaccessible remedies for abuses by public officials, such as shielding them with layers of official immunity. Legislators may have tried to placate the public with the Freedom of Information Act and various state open records acts, but they have also allowed suppression of writs of quo warranto, and a takeover of grand juries by public prosecutors.
The Supreme Court has built an edifice of "substantive due process", but "due process" was originally only about what happens between the initiation of a judicial case to the conclusion of it. Although one can speak of a legislative or an administrative due process, the notion of privileges and immunities also includes what happens outside those processes, such as the right not only not to have a usurpation applied to oneself, but not to have the usurpation occur in the first place, regardless of whether it is ever applied to anyone in particular. Persons need judicial remedies not only for injuries caused by officials, but also for misconduct generally, including negligence or dereliction, failure to supervise, failure to disclose, and conduct unbecoming.
The great challenge for reformers now is to find and pursue cases involving rights that are clearly not due process, but that fall squarely into the privileges and immunities realm, so that the judges of the Supreme Court will have little choice but to finally overturn Slaughterhouse.