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Does the Fourteenth Amendment Protect Unenumerated Rights?

Engage Volume 12, Issue 2, September 2011
By Kurt T. Lash, Alan Gura
September 12, 2011

The current debates over the incorporation of the Second Amendment have reignited interest in the historical understanding of the Privileges or Immunities Clause of the Fourteenth Amendment. The Supreme Court’s history-laden analysis of the Second Amendment in District of Columbia v. Heller signaled the Court’s openness to an originalist understanding of the Bill of Rights. Not surprisingly, the Court’s decision to hear McDonald v. Chicago and consider whether to extend the right recognized in Heller against the states triggered an avalanche of briefs (both principle and amici) that explore the history behind the Privileges or Immunities Clause and its relationship to the original Bill of Rights...