Alan Gura’s brief in McDonald v. City of Chicago

by P.A. Madison on January 27th, 2010

Like many pro constitutional gun ownership activists, Alan Gura’s brief for the petitioners in McDonald v. City of Chicago attempts to cast doubt on Slaughterhouse precedent that says the Fourteenth Amendment was not intended “as a protection to the citizen of a State against the legislative power of his own State.” He wants to convince the court that their privileges or immunities doctrine is profoundly erroneous. However, did Slaughterhouse really get it wrong?

The written evidence strongly suggests that in fact Slaughterhouse did indeed get it right.

Firstly, the “privileges or immunities of citizens of the United States” had identical meaning as to the original phrase found under section two, article four that reads, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Rep. Bingham would refer to article four, section two as the “privileges or immunities of citizens of the United States” before he had used the phrase under the Fourteenth Amendment. Some examples:

  • “Gentleman admit the force of the provisions in the bill of rights, that the citizens of the United States shall be entitled to all the privileges and immunities of citizens of the United States in the several States…”

  • “This guarantee [Art. IV, Sec. II] is of the privileges and immunities of citizens of the United States in, not of, the several States.”

  • “It [Art. IV, Sec. II privileges and immunities] is to secure to the citizens of each State all the privileges and immunities of citizens of the United States in the several States.”

If anyone has any doubt of this should consult with Bingham’s report of the judiciary committee, dated January 30, 1871 in response to the memorial of Victoria C. Woodhull:

The clause of the fourteenth amendment, “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” does not, in the opinion of the committee, refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four, section two. The fourteenth, it is believed, did not add to the privileges or immunities before mentioned, but was deemed necessary for their enforcement as an express limitation upon the powers of the States.

Secondly, these privileges or immunities were never understood to extend protection to citizens within their own State, and instead, merely followed a citizen of a State whenever they removed themselves to another State. This provided for a general National citizenship whenever the citizens of a State found themselves in another State. Bingham made this clear as words can make it clear when he said, “This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States.” (Cong. Globe, 39th Cong., 1st Sess., 158 (1866))

Influential Radical Republican, Samuel Shellabarger of Ohio, said in July of 1866 when he proposed his own bill to enforce all the privileges and immunities of citizens of the United States, that such privileges and immunities “protects no one except such as seek to or are attempting to go either temporarily or for abode from their own State into some other.”

Chancellor Kent (2 Commentaries, page 71) says: “If they [citizens of the United States] remove from one State to another they are entitled to the privileges that persons of the same description are entitled to in the State to which the removal is made, and to none other.”

Enforcement of the privileges or immunities of United States citizens was squarely aimed at the organic law of Oregon that abolitionists felt violated the privileges or immunities of United States citizens that read, in part: “No free negro or mulatto, not residing in this State at the adoption of this Constitution, shall ever come, reside or be, within this State, or hold any real estate, or make any contract, or maintain any suit therein …” Abolitionists like Bingham viewed most free Negro’s as citizens of the United States.

Gura suggests the Fourteenth Amendment “left unaddressed the content of state citizenship.” If one pays close attention will find the Fourteenth Amendment did nothing to change the relationship between State and National citizenship. Bingham made that clear in House Report No. 22 when he wrote, “The words ‘citizens of the United States,’ and ‘citizens of the States,’ as employed in the Fourteenth Amendment, did not change or modify the relations of citizens of the State and the nation as they existed under the original Constitution.”

I will cut this short by restating the ruling in Slaughterhouse in terms of the privileges or immunities of United States citizens under the Fourteenth Amendment was correct and is fully supported by the historical record. It is interesting to point out that when the 39th Congress attempted to enforce all of the privileges or immunities of United States citizens through legislation the mention of the Second Amendment was absent.

UPDATE: Edited to take into account two issues raised by Mike Hansberry.


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7 Responses | Leave a Comment
  1. JimAZtec says:

    Can someone please explain why it matters whether the 2nd amendment is incorporated via Due Process or Privileges and Immunities.

    It matters because there is no such thing as “incorporation.” That is something the court invented and not something demanded by the text or amendment history of the constitution.

  2. Bradley Shriver says:

    Can someone please explain why it matters whether the 2nd amendment is incorporated via Due Process or Privileges and Immunities.

  3. Mike Hansberry says:

    P.A.Madison said:

    Influential Radical Republican, Samuel Shellabarger of Ohio, said in July of 1866 the privileges and immunities of citizens of the United States “protects no one except such as seek to or are attempting to go either temporarily or for abode from their own State into some other.”

    But that is not quite right, Shellabarger was referring to the bill he sought to pass, not the phrase (the privileges and immunities of citizens of the United States).

    More sloppy writing from P.A.Madison:

    Rep. Bingham would refer to article four, section two as the “privileges or immunities of citizens of the United States”

    However Bingam did not refer to article four, section two as the “privileges or immunities of citizens of the United States”, rather Bingam said the clause…refered to the same P&Is embraced by art 4,sec 2

  4. J. Aldridge says:

    jheath, why are you trolling Houston v. Moore on here and VC?

    The issue in question with Houston v. Moore dealt with concurrent state and national jurisdiction over court martials. The court made clear the governing of the militia belongs with the states during peace. And the court also stressed the authority of training the militia belonged with the states according to the discipline prescribed by Congress.

    Seems to me you are the one in need of some serious research.

  5. Do some research says:

    “Upon the subject of the militia, Congress has exercised the powers conferred on that body by the constitution, as fully as was thought right, and has thus excluded the power of legislation by the States on these subjects, except so far as it has been permitted by Congress; although it should be conceded, that important provisions have been omitted, or that others which have been made might have been more extended, or more wisely devised.” Houston v. Moore 18 US 1

  6. Tom B. says:

    That would have created weird scenarios if citizens of a state could claim outside protection of those privileges or immunities against their own laws and constitution! There would had been no purpose in maintaining a union of states since we would been more of a monarchy than a republic. But it makes logical sense to avoid citizenship discrimination to provide for citizens of one state within another to share the same basic protections of citizenship. Slaughterhouse then really had no choice to rule like they did.

  7. Clifford says:

    Very persuasive argument that probably is the correct interpretation.

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