RANDY BARNETT: Is Originalism Crossing Over?

My answer is that we stand poised on the threshold of a possible shift when the constitutionality of state restrictions of the right to keep and bear arms is confronted by the Court in the wake of DC v. Heller. The evidence is overwhelming that the Privileges or Immunities of Citizens of the United States included a personal right to keep and bear arms. Indeed, the evidence that the right protected by the original meaning of the Fourteenth Amendment was personal and individual is even stronger and less impeachable than it is with the Second Amendment. And all the historical evidence concerning a right to keep and bear arms that exists concerns the Privileges or Immunities Clause, not the Due Process Clause.

Moreover, since the path breaking work by Michael Kent Curtis appeared in the 1980s, there has formed a remarkable scholarly consensus among those familiar with the historical record, and this consensus is entirely nonideological. Indeed, on February 4, 2009, the self-described “progressive” Constitutional Accountability Center filed a brief in the consolidated case of McDonald, et al., and National Rifle Association of America, Inc., et al., v. City of Chicago, et al., and Village of Oak Park, now pending in the Seventh Circuit, arguing that the individual right to bear arms recognized in District of Columbia v. Heller, is “incorporated” against state action via the Privileges or Immunities Clause of the 14th Amendment.

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