MISCELLANEOUS CLAUSES: 14TH AM. PRIVILEGES OR IMMUNITIES; TAKING; CONTRACT; RIGHT TO BEAR ARMS; EX POST FACTO; BILLS OF ATTAINDER

• Right to Bear Arms: The Second Amendment has been held to guarantee private individuals the right to keep firearms at home for purposes of self-defense.
• Ex Post Facto Laws: Both the state and federal governments are prohibited from passing any “ex post facto” law. An ex post facto law is a law which has a retroactive punitive effect. So government may not impose a punishment for conduct which, at the time it occurred, was not punishable. Nor may government increase the punishment for an offense over what was on the books at the time of the act.
• Bills of Attainder: Both state and federal governments are prohibited from passing any “bill of attainder.” A bill of attainder is a legislative act which “applies either to named individuals or to easily ascertainable members of a group in such a way as to punish them without a judicial trial.”

I.THE 14TH AMENDMENT’S PRIVILEGES OR IMMUNITIES
CLAUSE

A. “Privileges or Immunities” Clause:  The “Privileges or Immunities” Clause of the Fourteenth Amendment comes at the beginning of the second sentence of Section I: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. … ” At least some of the members of Congress who participated in the drafting of the Fourteenth Amendment expected and hoped that this Clause would constitute a substantial restraint on state government action against individuals. See Tribe, p. 550.

1. Slaughterhouse Cases:  But the Supreme Court did not take this view. In the Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1873), the Court held (5-4) that the Fourteenth Amendment’s Privileges or Immunities Clause merely forbade state infringement of the rights of national citizenship, not the rights of state citizenship.

a. Facts of Slaughterhouse Cases:  The Slaughterhouse Cases arose when Louisiana passed a law giving a monopoly on New Orleans-area slaughterhouses to a particular company. Butchers not included in the monopoly claimed that the statute deprived them of the opportunity to practice their trade, and thereby violated the Thirteenth and Fourteenth Amendments. The plaintiffs’ most serious argument was that the statute was a denial of the privileges or immunities of Louisiana citizenship, including the right to practice one’s calling.

b. Argument rejected:  But the Supreme Court rejected all of the plaintiffs’ contentions, including the privileges or immunities argument. The Court observed that the first sentence of the Fourteenth Amendment distinguishes between U.S. citizenship (for which one need merely be born or naturalized in the United States) and state citizenship (for which residence is required). “Fundamental” civil rights, including the right to practice one’s calling, were the domain of the states, not the federal government. Therefore, the plaintiffs should look to Louisiana law for protection; if there was no protection under Louisiana law (as apparently there was not), the plaintiffs were out of luck, since the Privileges or Immunities Clause added nothing to their rights in this area.