The Constitutional Accountability Center has filed an amicus curiae brief [pdf] on behalf of certiorari in the McDonald case. It spends a great deal of time looking into the history of the ratification of the 14th Amendment, emphasizing just what the the Privileges or Immunities clause was meant to protect.
The brief quotes Senator Jacob M. Howard, who was instrumental in drafting both the 13th and 14th Amendments. Howard’s testimony during the 39th Congressional Session (page 2765) is eloquent and clear and leaves absolutely no ambiguity as to the question of what should be incorporated by the Privileges and Immunities clause of the 14th Amendment.
The inquiry is, what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental, which belong of right to the citizens of all free Governments, and which have at all times been enjoyed by the citizens of the several States which compose this Union from the time of their becoming free, independent, and sovereign.
As Blackstone meant, and as Justice Scalia pointed out in the Heller opinion, the 2nd Amendment protects an individual, fundamental right. The historical record abundantly confirmed that interpretation. Here, the record proves that Howard, Bingham and the other drafters of the 14th Amendment were just as specific in their intentions.
Though we could rely on the Due Process clause for incorporation, there is a certain philosophical elegance and finality in following the doctrine as its authors intended.
These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each State in every other State was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old Articles of Confederation) the better to secure and perpetuate mutual friendship and intercourse among the people of the different States of the Union.
Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution. To these privileges and immunities, whatever they may be–for they are not and cannot be fully defined in their entire extent and precise nature –to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments.