Orin Kerr over at Volokh muses about the prospects of a Supreme Court archeological dig down into the foundations of The Slaughter-House Cases, the 1870s New Orleans legal fights infamous for effectively snuffing out the meaning of the Fourteenth Amendment's Privileges and Immunities Clause.
Petitioners in the Chicago handgun ban case seek to reopen the way that was shut. But it doesn't sound like many justices want to tag along with Justice Thomas in a descent back into the dusty past. As Kerr notes, it would be a rather dramatic break with stare decisis.
I've been aware of the P&I excavation site for some time...before all the halogen lights were set up at the entrance as of late. Just over a year ago, a friend brainstorming for a paper on the legal ways forward for the gay marriage debate was chatting with me via email, and I suggested, half jokingly, half seriously:
Why not assess under privileges and immunities?
Yes, yes I knew it was dead. And then:
You could still call for a strengthening and reinvigoration - or expansion to finally give teeth - of the Privileges and Immunities clauses. The precedent that might stand in the way (defining the clause into a much narrower meaning) is ancient - 1860s 1870s - and parts of the case have been overturned in the 1940s.