Viva the Privileges or Immunities Clause of the Fourteenth Amendment?

Randy E. Barnett, professor of constitutional law at Georgetown, and author of "Restoring the Lost Constitution: The Presumption of Liberty", has written an opinion piece in Wednesday's Wall Street Journal that is essential reading for anyone interested, either by inclination or by compulsion, in constitutional law.

The professor deals with the issues covered in the piece more competently than I am able, but here is a preview. The upcoming decision in McDonald v. Chicago is likely to explicitly find the Second Amendment to the U.S. Constitution applicable to the states. And that means Heller will be applicable to the states. Professor Barnett wants, should that happen, that it happen via the Fourteenth Amendment's Privileges or Immunities Clause, not the Due Process Clause, which, the professor seems to believe, does not have a substantive aspect. We last saw the Privileges orImmunities Clause of the Fourteenth Amendment just before the Slaughter-House cases, which did to it what On Deadly Ground (you should thank me for not linking to it) did to Steven Segal's movie career: it continued to exist but without effect. The Privileges or Immunities Clause reads:

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

Professor Barnett finds the clause's historical marginalization unwarranted, given the plain import of its language. And for reasons of jurisprudential hygiene wants it to be the vehicle by which the Second Amendment is made applicable to the states. However, some of the questions and comments made by the Justices at oral argument on Tuesday suggest to the professor that the Court may pull the well-used lever of the Due Process Clause instead. We'll soon know.