The Supreme Court heard arguments in the case of McDonald v. City of Chicago this past Tuesday. The good news is that the Court seemed eager to protect the right to keep and bear arms. The bad news is that the nine Justices were not as willing to protect the Constitution. (For a round up of commentary, go here.)

Some quick background-McDonald v. Chicago is the case challenging one of the strictest gun bans in the country. Inkwell readers remember District of Columbia v. Heller from 2008, which struck down a similar ban on Second Amendment grounds. DC is not a state, though, so the decision only applied as far as the limits of the city border. After the ruling in Heller, individuals scrambled to have Second Amendment rights applied to their states.

This is where the trouble begins. Alan Gura, the attorney representing Mr. McDonald, argued that Chicago’s gun ban violated an individuals rights under the Privileges or Immunities clause of the 14th Amendment. In doing so, he attempted to overturn 140 years of bad precedent. Unfortunately, the Justices were not eager to play along. While the majority indicated that they would strike down the gun ban, they were only willing to do so on Due Process grounds.

There are lots of good reasons to employ the Privileges or Immunities Clause. In a nutshell, here are two important ones: first, Privileges or Immunities guards against judicial activism. It is meant to assert unenumerated rights against states. By taking the Due Process route instead, activist judges are empowered to decide what rights we have (or not). Second, using Privileges or Immunities shows more respect for the Constitution. It is a stretch to use the Due Process clause (which is meant to guarantee access to legal proceedings) to cover individual rights. Ignoring particular clauses degrades the document as a whole.

I waited outside of the Supreme Court building for 15 hours because I was hoping to witness a revival of respect for our founding document. Even though I was not confident that the Supreme Court would resurrect the Privileges or Immunities Clause, it was still disappointing. Striking down gun bans is important, but so is taking the Constitution seriously.