Privileges and Equality: The Double-Edged Sword of the 14th

I've been thinking about an issue I tweeted about last month, the issue of whether the Supreme Court can (or will) incorporate the Second Amendment through the Privileges or Immunities Clause (POIC) (instead of the Due Process Clause (DPC)). Certainly, saying that owning guns is implicit in the concept of ordered liberty is a bit of a stretch. Second, at least one article notes that there is "some evidence that the amendment’s writers specifically wanted the clause to apply to allow freed slaves to have guns to defend themselves." Third, overturning—or at least limiting—The Slaughterhouse Cases would be totally awesome for ConLaw geeks like me.

However, there is one problem with the Privileges or Immunities Clause: It doesn't help everyone. While incorporating rights through the DPC protects "any person," incorporating through the POIC protects "citizens." Noncitizens are out of luck.

Or are they?

Consider one of the few POIC cases out there, Saenz v. Roe, in which the Supreme Court held that a state law making welfare benefits more favorable to longtime state residents than new state residents unconstitutionally restricts the right to travel inherent in the POIC. Now, consider an alternative law, in which a state makes welfare benefits for noncitizens more favorable to longtime state residents than to newer residents. It would seem to me that the POIC offers nothing to help here.

But the Equal Protection Clause (EPC) certainly does. The Court, for about 40 years, has held that laws discriminate based on citizenship get strict scrutiny in equal protection review. If a law restricts the right of noncitizens to travel in a way that doesn't affect citizens, strict scrutiny applies and the law would almost certainly be struck down. The only exception is on laws that "go to the heart of representative government" (although this exception appears to range from voting to hiring police officers). So, in effect, the combination of the POIC and the EPC makes incorporation through the POIC almost as robust as incorporation through the DPC.

So, what about guns? If the Second Amendment is incorporated through the POIC, will states be able to restrict ownership of guns based on citizenship? Putting aside possible justifications for such a law, this is actually a somewhat interesting issue. Before Heller, I would actually say there's a good argument that such a law would be constitutional. In the collective rights view of the 2nd Amendment that prevailed until 2008, gun ownership was about protecting the states from tyranny—something that does indeed go straight to the heart of representative government. Under the collective rights view, a law restricting gun ownership by noncitizens would probably survive equal protection review. However, given that the 2nd Amendment is now viewed as an individual right, that argument completely fails, and equal protection review would be strict. If the 2nd Amendment were incorporated through the POIC, it would provide the same level of protection for the right as incorporating through the DPC.