Wednesday, March 3, 2010

Privileges or Immunities

Randy Barnett arguing for incorporation of the Second Amendment to the states via the Privileges or Immunities Clause, rather than the Due Process Clause.

"For example, apart from personal liberties in the Bill of Rights, we know that the Civil War-era congressional Republicans were trying to constitutionally protect the rights enumerated in their Civil Rights Bill of 1866. This legislation listed the rights 'to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property.' Yet these are now considered 'economic' liberties, which the Court has been loath to protect since the New Deal. This may also explain why yesterday it wanted to ignore text and history."