White: More liberty for guns and gays

What do guns and gay marriage have in common?

Not a whole lot, at first blush. Accurately or not, we tend to associate guns with conservatives in the rural south and Bible belt and gay marriage with liberal urban enclaves in Massachusetts, California and now Connecticut. Most people who advocate increasing the availability of one support restricting access to the other.

To proponents, the right to keep and bear arms or the right to marry a person of the same sex represents the most bitterly contested front in the ongoing battle for personal liberty. To detractors, these so-called “liberties” hardly deserve the name because their formal recognition will cause our civilization to crumble around us, either by leading to mass bloodshed in the streets or destroying the family forever.

After last summer’s D.C. v. Heller and last week’s Kerrigan v. Commissioner of Public Health — decisions by the United States and Connecticut Supreme Courts, respectively — guns and gay marriage promise to feature prominently in judicial, legislative and popular discussion for a while. More substantively, the two seemingly disparate issues have the potential to transform — for the better — the way American jurisprudence addresses individual liberties. Whatever one’s view on the divisive issues in question, this is a good thing.

Gay marriage and gun rights could become inextricably linked by the privileges-or-immunities clause of the 14th Amendment, a long-ignored cluster of words that was once arguably the centerpiece of Reconstruction. In 1873, the Supreme Court forever kicked the clause to the curb in the Slaughterhouse Cases, and then added insult to fatal injury with subsequent rulings in United States v. Cruikshank and The Civil Rights Cases.

During the 20th century, as the late Yale Law professor Charles Black argues in his book “A New Birth of Freedom,” the Supreme Court began finding (or rather, as he believes, inventing) a way to protect personal liberty under the doctrine of “substantive due process.” Conventional thinking holds that if and when gun rights and gay marriage become judicially protected, some combination of equal protection and “substantive due process” will do the protecting.

For all their differences, both gay marriage and individual gun rights conform equally poorly to the doctrine of “substantive due process.” (It’s an open question whether anything actually conforms well to a made-up concept). Both marriage and gun ownership are, however, arguably among the “privileges or immunities of citizens of the United States” that states aren’t allowed to abridge. After all, the framers of the 14th Amendment explicitly mentioned “the right to keep and bear arms” during Congressional debates. And marriage, if it is as “fundamental” as the conservatives raising hell to protect its “sanctity” say, certainly deserves the status of “privilege.” Arguments for why straight marriage but not gay marriage deserves this exalted status invariably contradict another guarantee of the 14th Amendment: equal protection.

Obviously, neither of the above justifications presents an open-and-shut case for including gun rights or gay marriage among “privileges or immunities.” Indeed, I’ve argued — and I continue to believe — that an overly expansive right to keep and bear arms should not qualify as an individual liberty. But courts, as evidenced by Heller and Kerrigan, are moving towards understanding the right to keep and bear arms and the right to marry a person of the same gender as personal privileges. They are doing so under pressure from disparate groups, often with radically opposed social agendas. Yet their duty to interpret the law in a consistent and comprehensible manner should ultimately force the courts to recognize the underlying similarity between these culture-war battles, and adjudicate accordingly.

The beauty of the privileges-or-immunities clause lies in its implicit recognition that one person’s liberty may well be another’s abomination. Today, the sharp cultural division over firearms and same-sex marriage reveals the potential for schism all too clearly. The privileges-or-immunities clause holds the person supreme in a way that “substantive due process” never will. Its potential to bring together two radically different issues under the heading of “personal liberty” could mean good things for the future of personal freedom in America.

Xan White is a senior in Pierson College.

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