As I discussed in my preliminary thoughts on McDonald v. Chicago, the Justices seem to have given short shrift to the Privileges or Immunities argument presented by McDonald’s attorney, leaning much more heavily on the Substantive Due Process argument presented by the NRA’s lawyer. Randy Barnett, frequent poster at The Volokh Conspiracy (and Georgetown Law Professor, who argued for Raich in the Gonzales v. Raich medical marijuana case), has an op-ed in today’s Wall Street Journal taking the Justices to task for this:

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.

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Judging by yesterday’s oral argument, the Supreme Court is afraid to revisit that 1873 decision for fear of opening a can of worms. Chief Justice John Roberts began the questioning by invoking the heavy burden on anyone seeking to reverse Slaughter-House. Justice Antonin Scalia referred to the Privileges or Immunities Clause as the “darling of the professoriate,” a reference not intended as a compliment.

Noticeably absent was any question—not one—by any justice challenging the historical evidence that the right to keep and bear arms was among those included in the Privileges or Immunities Clause. For that matter, no justice seemed at all interested in the original meaning of any aspect of the 14th Amendment. (As is his practice, Justice Clarence Thomas, the one justice who has expressed sympathy for reviving the Privileges or Immunities Clause, asked no questions.)

So what did the justices discuss? In a revealing early question, Justice Scalia asked whether it isn’t “easier” just to use the Due Process Clause.

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At the McDonald argument, it seemed obvious that five or more justices will vote to apply the Second Amendment to the states. This would be a great victory for gun rights—one that until a few years ago would have been unimaginable. But it was also obvious that most were deeply afraid of following a text whose original meaning might lead them where they do not want to go. When it came to following the written Constitution, a visitor from another planet would not, I suspect, have been very impressed.

Read the rest of it (it’s not that long, and has more of the historical background regarding Privileges or Immunities and Slaughter-House Cases). My take on this is that he’s taking the “originalist” Justices to task for being selectively “originalist”, for fear of opening a can of worms, and hence deciding to take a convoluted “easier” way and ignoring the obvious way.

I’ve argued in the past that many of the civil rights and criminal-defendant cases (Warren/Burger Court eras) that “originalists” loathe and call “activist” due to Substantive Due Process arguments, make much more sense under Privileges or Immunities, and that the Substantive Due Process rationale came about solely because of Slaughter-House Cases. I believe that this is the “can of worms” that Barnett is afraid that the “originalist” Justices are afraid of.

I’ve also argued in the past (coincidentally, in discussing Gonzales v. Raich) that “originalism” is applied quite selectively, to defend an outcome that an “originalist” Justice has determined is correct, and ignored when “originalism” doesn’t get them where they want to go (something that a conservative spectator would call “activism” if it were done by a liberal Justice). To hear Scalia arguing against Privileges or Immunities and for selective incorporation under Substantive Due Process was surreal. I’m not sure I’d have thought to call it out quite the way Barnett examined it, though.