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    Is the Right to Keep and Bear Arms a Privilege or Immunity of Citizens of the United States?

    Posted Tuesday, April 22, 2008 10:40 AM | By Jack Balkin
    I wanted to follow up Doug's post about originalism and the Second Amendment with a question: What effect does he think the Fourteenth Amendment had on this issue?  The Fourteenth Amendment, while directed primarily at states, nevertheless also speaks of the privileges or immunities of citizens of the United States.  Such privileges or immunities of national citizenship, if they truly are such, must bind the federal government as well as the states.  The framers of the Fourteenth Amendment assumed that the right to keep and bear arms for self defense was one of those privileges or immunities.  If we are truly to be originalists, can we disregard other points of origin and their impact on our reasoning?  Surely 1787 and 1791 are not the only moments that matter.  The Supreme Court, it is true, wrote the Privileges or Immunities clause out of existence in the Slaughter-House cases of 1873.  But as Doug himself puts it, "to the extent it is consistent with the original understanding [N.B., I would say original meaning], precedent must be respected."  That cannot be said of Slaughter-House.
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