The Second Amendment and the States-In oral argument yesterday, the Justices seemed afraid of the plain language of the Constitution.

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Imagine you are a visitor from another planet reading the U.S. Constitution. You come to the 14th Amendment, where it says: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Might you not think this must be a pretty important provision?

Now suppose you are told that, for over 135 years, the Supreme Court has, with one exception, entirely ignored that language. Might you question whether Supreme Court justices were bound by the written Constitution? Had you been seated in the Supreme Court yesterday to hear oral arguments in McDonald v. Chicago, your suspicions might well have been confirmed.

McDonald is a constitutional challenge to a ban on handguns in the City of Chicago that resembles the gun ban in the District of Columbia that the Supreme Court struck down two years ago. In D.C. v. Heller, the Court held that banning all handguns violated an individual right to right to keep and bear arms protected by the Second Amendment. Because the Second Amendment only applies directly to the federal government, however, Heller was just the first shoe to drop. The next question was whether the individual right to arms also applies to the states.

Since the 1890s, the Supreme Court has been “selectively incorporating” the Bill of Rights piecemeal into the 14th Amendment via that amendment’s Due Process Clause. So that would be the most obvious way to apply the right to keep and bear arms to the states. But that poses a challenge.

The Due Process Clause reads: “nor shall any state deprive any person of life, liberty, or property, without due process of law.” Using this language to protect substantive rights has long been controversial.

First of all, “due process” sounds procedural not substantive. The Court has also used “substantive due process” to protect unenumerated rights it deems to be fundamental, such as the right to privacy. Just where in the text of the Due Process Clause is this right? For this reason, “due process” has long been criticized by conservatives as a route to unfettered judicial discretion.

But what about the clause protecting the “privileges or immunities of citizens of the United States”? The language was made part of the 14th Amendment (adopted in 1868) to deal with the problem of Southern states egregiously violating the rights of freed black slaves and white unionists

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