Properly Extending the Right to Keep and Bear Arms to the States

Posted by Ilya Shapiro

I recently blogged about an interesting op-ed in which Ken Klukowski and Ken Blackwell of the American Civil Rights Union argue that the Supreme Court need not overturn The Slaughter-House Cases while “incorporating” the right to bear arms against the states.  (Josh Blackman fisked the article in more depth here.)   This piece was essentially a distillation of the ACRU’s amicus brief in McDonald v. City of Chicago, which ultimately argues, like Cato’s brief, that Chicago’s gun ban is unconstitutional.

It has come to my attention, however, that I mischaracterized one aspect of the Kens’ op-ed (sorry about that): while they are indeed against overturning Slaughter-House, the authors still seek to apply the Second Amendment right through the Privileges or Immunities Clause (like Cato and most libertarians), rather than through the Due Process Clause (like many conservatives and gun rights proponents).  This is the ACRU’s main argument, and it is based largely on Ken Klukowski’s recent law review article – indeed, the brief’s body cites Klukowski article some 20 times, often for propositions that find no further support in case law or academic literature.  (Josh has also provided a short critique of the ACRU brief/Klukowski article, so I won’t do that here.) 

In any event, this clarification gives me an opportunity to name and outline the five possible ways a justice could come down in the McDonald case:
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