The Suprme Court is currently considering McDonald v. Chicago, a case in which the appellant wishes to see the 2nd Amendment to the Constitution incorporated using the “due process” interpretation of the 14th Amendment endorsed in the Slaughterhouse cases over a century ago in 1868. Well, that is, unless the Court is willing to ressurect a different interpretation of the 14th Amendment that places emphasis on a substantive intepretation of the Priviliges & Immunities clause.

While the case is substantively interesting from an incorporation standpoint, and I encourage you to keep an eye out for the case once the USSC rules, I found this passage from a recent Reason.com article quite interesting. It is on whether the Court might resurrect the Priviliges & Immunities interpretation of the 14th amendment that the Court abandoned in the Slaughterhouse Cases (in short: they don’t expect the Court to revive the P&I interpretation). What I found interesting was the discussion of a possible Thomas seperate opinion where he would argue on behalf of the P&I interpretation in a concurrence to the presumed 2nd Amendment incorporating McDonald majority.

But no matter what the consensus is, a privileges or immunities victory will eventually have to be won in the Supreme Court, and in my read there is at best one person on the current Court who would vote for it. Justice Clarence Thomas, silent as always in this week’s hearings, has in the past expressed an interest in rethinking privileges or immunities. There’s a strong expectation on the part of some privileges or immunities fans that Thomas will write a concurring opinion uniting in the holding that the Second Amendment is incorporated, but with a separate set of privileges or immunities-based reasoning that could become a rallying flag for future arguments about the clause’s continued value.

While the substantive arguments in the case are fascinating and extremely important as a matter of social policy, take note of the raison d’être the article gives for writing the concurring opinion. As I’ve pointed out in class, the primary motivation for a justice to write a concurring or a dissenting opinion is the possibility that its reasoning could prove influentional (with the public, among legal scholars and the legal profession, as well as future generations)…and one day become the reasoning in a USSC case modifying or overruling the precedent that the justice disagrees with in the current case. And here we see that reasoning expressly acknowledged in this article. Cool.