Chicago Gun Case Incorporation Lawsuit

[Al Norris]

Because the Chicago Incorporation case is now waiting upon a decision for certiorari by the Supreme Court; because we have a couple of different threads on this, from the 7th Circuit decision; because the information is in different threads, this thread is to be used as the main thread for further discussion.

So then, to recap what's going on at the moment.

There were two cases that comprised what is being called, NRA v. Chicago.

The first case was filed immediately that Heller was decided by Alan Gura, for Otis McDonald, et al.

The second case was filed two days later by the NRA.

The cases were combined at the District Court and summary judgment to dismiss was granted. The cases were appealed to the 7th Circuit where, on June 2, 2009, the Circuit declined to incorporate and held for the District Court.

The NRA filed its petition for certiorari on June 4th and Gura filed his on June 11th. On June 25th, an order extending time to file a response was entered for Chicago. Response is due on Aug. 5th.

The NRA petition for cert is here (http://volokh.com/files/nrapetition.pdf).

Gura's petition for cert is here (http://www.chicagoguncase.com/wp-content/uploads/2009/06/mcdonald_cert_petition1.pdf).

There are currently 7 amici curiae briefs filed for the petitioners, arguing for a grant of cert, for which I have links.

Briefs filed on behalf of both litigants:

Brief amicus curiae of Arms Keepers (http://www.chicagoguncase.com/wp-content/uploads/2009/07/armskeepersbriefsupportingcert.pdf).
Brief amicus curiae of California (http://www.chicagoguncase.com/wp-content/uploads/2009/07/california_cert_stage.pdf) (AG Jerry Brown).
Brief amici curiae of Texas (http://www.chicagoguncase.com/wp-content/uploads/2009/07/texas_states_cert_stage.pdf), et al (33 States).
Brief amici curiae of Institute for Justice, and Cato Institute (http://www.chicagoguncase.com/wp-content/uploads/2009/07/ij_cato_cert_stage.pdf).
Brief amicus curiae of Gun Owners of America and Gun Owners Foundation (http://www.chicagoguncase.com/wp-content/uploads/2009/07/gof_goa_cert_stage.pdf).

Briefs filed on behalf of the NRA:

Brief amicus curiae of American Civil Rights Union (http://www.theacru.org/NRAvChicago.pdf).

Briefs filed on behalf of McDonald:

The Brief amicus curiae of Constitutional Accountability Center (http://www.chicagoguncase.com/wp-content/uploads/2009/07/cac_cert_stage.pdf) (Law Professors).

Chicago's Reply brief in opposition to cert is here (http://www.chicagoguncase.com/wp-content/uploads/2009/08/chicago_bio.pdf).

The NRA reply brief is here (http://www.stephenhalbrook.com/lawsuits/Reply%20to%20Br%20in%20Opp%20-%20NRA%20v.%20Chicago.pdf).

Gura's reply brief is here (http://www.chicagoguncase.com/wp-content/uploads/2009/08/chicago_reply.pdf).

Over at SCOTUSblog, Lyle Denniston has reported (http://www.scotusblog.com/wp/second-amendment-cases-up-early/) that the first conference of the new Term will be held on Sept.29. Included in the electronic docket will be two gun cases: NRA v. Chicago (08-1497) and McDonald v. Chicago (08-1521).

We could know as soon as the next day (Wed. Sept. 30) if either or both cases will be heard. Generally however, such announcements are given the following Monday (which happens to be the start of the 2009 Term).

The new Term starts the first Monday of Oct. - Oct. 5.

Note: A tip of the Hat to Bubbles, over at THR.us for reporting the SCOTUSblog info.

[csmsss]

California's brief is hilariously cynical and completely unresearched and unsupported.

[Wildalaska]

California's brief is hilariously cynical and completely unresearched and unsupported.

What makes you say that?

WildcuriousAlaska TM

[jimpeel]

I read the CA brief and I didn't see anything wrong with it typographically or ideologically considering this is CA.

They want to get a dead bang ruling so they can see which laws they are going to get to keep. There is no interest in CA in throwing any laws out.

[Mello2u]

Focusing on the differences between the NRA petition for Cert. and the California petition for Cert.; I'd characterize the NRA petition as a document which takes the effort in its 40 pages to be persuasive beyond the issue of granting certiorari. The NRA petition is advocating in this document its position on why the 2nd Amendment should be incorporated. On the other hand, the CA petition does the bare minimum to have the case granted certiorari to resolve the split in opinion of the appeals courts.

The Ninth circuit has ruled in favor of incorporation based on the 2nd Amendment being a fundamental right; and the Second and Seventh circuits have ruled that the 2nd Amendment is not incorporated.

http://www.uscourts.gov/images/Circuit-Map-outlined-rs2.gif
The link is to a map which shows which states are in which Circuits.

[Al Norris]

Actually, the 9th Circuit is going to re-hear the Nordyke case en banc (before the entire circuit), and has rescinded the decision by the panel.

There is no technical split at this moment.

[BillCA]

The California brief sums up the position of California in a document that (for once) is brief and concise. The CA brief was written before the 9th Circuit decided on an en banc (http://www.lectlaw.com/def/e015.htm) hearing of Nordyke.

California asks that SCOTUS grant cert, that SCOTUS find that the RKBA is incorporated against the states and that SCOTUS provide some scope of the right so that states can understand was constitutes "reasonable regulation".

From California's perspective, since the state constitution lacks an analog to the 2A right, the state is (theoretically) able to ban the possession of any and all firearms. Unless the RKBA applies to the states through incorporation, that is.

California is asking SCOTUS to incorporate to provide a uniform right to all U.S. citizens (thank you AG Brown!). But it is also telling SCOTUS to define some limitations of what the states can or cannot do. They also want The Court to establish if strict scrutiny (http://law.jrank.org/pages/10552/Strict-Scrutiny.html) is the proper standard of review (or some other level).

In affirming that the Second Amendment guarantees an individual right to keep and bear arms, the Court in Heller noted that its ruling permitted reasonable regulation of firearms.
:
But the Court declined to elaborate on the extent of the government’s authority to regulate firearms or to establish a standard of review applicable to asserted Second-Amendment infringements.


If The Court can articulate some broad language to define some of the limits to state regulatory powers and/or define what kinds of regulations the states may use, it will save a lot of time, grief and expensive litigation.

The difficult part would be for The Court to come up with a workable "scope" of the right without having to reverse itself in the future.

[Al Norris]

Just a couple of notes, in case anyone is still interested...

On Thurs. Sept. 24th, the 9th Circuit in an en banc hearing, heard the Nordyke case. Before the end of the day, the Circuit vacated the submission of the case and punted to the Supreme Court, to grant cert in one or more of the 2A certs before it.

Today (09-29-2009), NRA v. Chicago, McDonald v. Chicago and Maloney v. Rice were scheduled to be discussed in Conference. If the Heller case is any indication, we may know by Friday if cert is granted in one or more of these cases.

Currently, the Court calendar is filled through Dec. Therefore, if cert is granted, The Incorporation case may be heard as soon as Feb. 2010. Note: My understanding is that there are currently 8 other cases that have been granted cert, but have not been docketed. That pretty much ties up January.

[htjyang]

The Supreme Court has granted the McDonald petition (http://www.scotusblog.com/wp/court-to-rule-on-gun-rights-terrorism-law/).

So, once more unto the breach....

[TRguy]

http://www.scotusblog.com/wp/

Taking on a major new constitutional dispute over gun rights, the Supreme Court agreed on Wednesday to decide whether to apply the Second Amendment to state, county and city government laws.

The Court had three cases from which to choose on the Second Amendment issue — two cases involving a Chicago gun ban, and one case on a New York ban on a martial-arts weapon. It chose one of the Chicago cases — McDonald v. Chicago (08-1521) — a case brought to it by Alan Gura, the Alexandria, VA. lawyer who won the 2008 decision for the first time recognizing a constitutional right to have a gun for personal use, at least in self-defense in the home (District of Columbia v. Heller). A second appeal on the Chicago dispute had been filed by the National Rifle Association (NRA v. Chicago, 08-1497). Presumably, the Court will hold onto that case until it decides McDonald; the same is likely for the New York case, Maloney v. Rice (08-1592) — a case in which Justice Sonia Sotomayor had participated when she was a judge on the Second Circuit Court.

[Glenn E. Meyer]

I put this in ZeSpec's duplicate thread so I'll post it here. Too lazy to merge and busy:

Yep, I think they are going to use the 'reasonable aspect' of Heller to make the case that some environs are special cases - like the big Urban areas full of 'nasty' people. But this would probably skirt the issue of racial discrimination. The 'nasty' areas that want to ban handguns have high proportions of minorities.

It will be supported by bogus or biased research reports. Here's the latest:

http://www.uphs.upenn.edu/news/News_...ession-safety/

I haven't had time to read the original but it seems to miss major points and the methodology while perhaps OK for cancer, may not be useful in determining deterrence effects, etc. I think Kleck, etc. will have some telling counters. Kleck had a recent article in a special issue of the American Behavioral Scientist about the fallout of Columbine demonstrating the the gun control suggestion after Columbine are just feel good pallatives with no real effectiveness. BTW, the other experts found that little of the suggestions would do much. The best ones were that you can get females to turn in high school male shooter wannabees.

We will see.
__________________

[Yellowfin]

This is definitely the best case scenario. It's the simplest question, the best lawyer, the most compelling argument, and the most blatant offender.

[Al Norris]

I see we all have the good news.

I'm waiting to see what the question to be answered will be. I get a 404 Not Found error at the moment. Anybody download that part?

Since cert was not denied in the NRA and Maloney cases, I suspect that the answer to McDonald will reflect on how these cases turn.

Additionally, Nordyke will be decided after the SCOTUS returns a decision in McDonald.

[Musketeer]

I would rather see Sotomayor's anti inclusion decision from NY to force her to recuse herself.

[carguychris]

This is definitely the best case scenario. It's the simplest question, the best lawyer, the most compelling argument, and the most blatant offender.
+1. I'd like to be the first to express a sigh of relief that they didn't decide to hear Maloney v. Rice, which had all sorts of problems, including the potential Sotomayor recusal.
I would rather see Sotomayor's anti inclusion decision from NY to force her to recuse herself.
I disagree. There are all sorts of potential problems with the SCOTUS agreeing to hear Maloney v. Rice. One of the smaller ones is the possibility that the court could deadlock 4-4 after Sotomayor recuses herself. OTOH the biggest potential problem is that the SCOTUS could decide that two sticks connected with a chain constitutes fitness equipment rather than "arms", the 2A doesn't apply, and we get nothing. :(

In the aftermath of D.C. v. Heller, IMHO the SCOTUS review of McDonald should turn out very well for gun rights advocates, even if the diehard RKBA advocates don't get everything they're hoping for. Remember, by replacing Souter, Sotomayor did not tilt the ideological balance of the court, and 8 of the justices who decided Heller are still there.

[TxShooter474]

This outcome of this case in the court will be huge. It will either open the door for lawful gun ownership no matter where you reside or will close the door to handgun ownership in many other jurisdictions. This will be a much more important case than the Heller decision.

[Tom Servo]

OTOH the biggest potential problem is that the SCOTUS could decide that two sticks connected with a chain constitutes fitness equipment rather than "arms", the 2A doesn't apply, and we get nothing.
Interesting side note here: in the Maloney brief, they found evidence that numerous police departments use nuchaku as weapons, and the case raises the issue that "arms" are not necessarily limited to firearms. That said, the Maloney arguments are a little more strident and a little less airtight than McDonald's.

Gura's case argues for incorporation through the Privileges or Immunities clause, rather than Due Process. McDonald essentially demands a rehearing of Cruikshank and Slaughterhouse, and could have wide-reaching implications for any number of state-level ordinances, not just relating to guns.

[Al Norris]

From the McDonald petition:

Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.

From the Chicago petition:

1. Whether the Court should consider claims that the Second Amendment right to keep and bear arms in common use, including handguns, is a fundamental liberty interest applicable against state and local governments by the selective incorporation doctrine of the Due Process Clause of the Fourteenth Amendment.

2. Whether the Court should refuse to revisit its repeated holdings that the Privileges or Immunities Clause of the Fourteenth Amendment does not incorporate Bill of Rights provisions to apply against state and local governments.

Parsing from the above, what does anyone think the court may ask? Please remember, that the Court need not answer whether or not the Chicago ordinances are valid. If incorporated, that question was answered by Heller.

Barring other information or developments, it appears the court is leaving the question as phrased by Gura's petition.

Over at http://www.chicagoguncase.com Mr. Gura has set the tentative deadlines as follows:
Our opening brief is due November 16.

The city’s brief is then due December 16.

Our reply brief is due January 15.

The case is expected to be argued in February, with a decision expected by the end of June, 2010.

[Yellowfin]

Likewise, if Palmer v. DC goes all the way to the top, which is depending on how aggressively DC fights it and/or how stupid they are to risk losing, the question as to whether carry rights invalidate local bans or onerous restrictions ala NYC will become simply a matter of whether the 2nd Amendment applies; the right of carry will be permanently reattached as it should be. Put the two together and no city in the country--DC, NYC, LA, San Francisco, Chicago, Baltimore, or Boston--will be able to ban or obstruct its law abiding citizens (and perhaps with some further litigation, anyone else who passes a background check) from being able to carry a firearm for self defense. They may be able to choose to tell them whether they can carry concealed or open, but at least one or the other MUST be legal.

[raimius]

How strong is the Palmer case? I really question our strength there. We only won the Heller case by 1 vote. We might have a better chance through reciprocity laws, IMO.

As for the Chicago case, if Gura's question is the one addressed, we have very good chances IMO.

[Al Norris]

Raimius, briefly, Heller was about "keeping" arms and Palmer is about "bearing" arms.

Yellowfin, you brought this up. You want to start a new thread to inform everyone whats going on there?

[Yellowfin]

One Palmer thread coming up! Will it be stickied, too?

[raimius]

Yes, I realize the Palmer case is centered on bearing arms. My concern is that most people don't care about keeping firearms, but the issue of the "average joe" carrying one still freaks out at large amount of people (sadly). I'm worried the SCOTUS will decide "Keep and Bear" doesn't really mean what it says, considering only 5 judges acknowledged the "keep" part.

Perhaps that view is too simplistic, but it's what I'm sensing in quite a few areas. "Fine to own, but don't carry" would be a terrible thing.

[maestro pistolero]

I would seem that, having plunged into the historical 2A pool, that the justices would have to begin swimming in it now. There is little question in my mind that since keep means keep, that they will now determine bear to mean bear.

Under what restriction or regulations, who can say? But it is doubtful to me that restrictions whose primary purpose is to dissuade or make the exercise of the right unnecessarily burdensome cannot, and should not, survive any standard of review.

[jimpeel]

At the time of the passage of the Fourteenth Amendment, the states recognized that the Amendment would bestow on Blacks the right to keep and bear arms. The arguments hoisted against the passage of the Fourteenth Amendment had much to do with the right to keep and bear arms for Blacks. States passed Black Codes specifically to address this fact.

If the understanding was that the Fourteenth Amendment would incorporate the right to keep and bear arms at the time of its passage, why would that same fact not apply now? Why would that fact be well understood at the time of the writing of the Amendment and so misunderstood now?

Ref. The Racist Roots of Gun Control, Clayton E. Cramer, (Kan. J.L. & Pub. Pol'y, Winter 1995, at 17) (http://www.constitution.org/cmt/cramer/racist_roots.htm#N_44_)

[NightSight]

I have a question to those of you that are smarter than I. I have read that it is a good thing, for gun owners at least, that Gura is arguing the case through the Privileges and Immunities Clause instead of Due Process. I have not read why. Could someone please explain how this would be better for gun rights advocates??

[Yellowfin]

A good question, NightSight. The reason is that so matters that require licensing and approval can be required to be equal, like CCW's and NFA items. The Slaughterhouse cases which destroyed the P&I clause involved a license to do business as a butcher, and if the P&I clause had been upheld then those licenses would have had to been "shall issue", you could say, that they would have had to have been available on a fair and equitable basis. But of course the entire case hinged upon them not being so, that it was an insider deal involving corruption and favoritism, and the ruling went against the plaintiffs. Right now the carry license practices of the states of New Jersey, California, New York, Maryland, Massachusetts, and Hawaii are all horribly unequal, and because a state issued license is a state matter, with no P&I clause of the 14th Amendment the states can continue being as unfair as they want to be, giving out carry licenses to Ben Affleck, Donald Trump, Bill Gates, Theresa Heinz, Sly Stallone, and the lawyers' and judges' wives and daughters but not you and me for no other reason than because they said so. You and I not being mega millionaires cannot get a New Jersey or New York City or Los Angeles carry permit, but those who are the right person or know the right people or donate money in sufficient amounts to the right campaigns can.

The laws of California and New York are nothing more than Jim Crow laws which have withstood the times because they hadn't been attacked as such and the precedent upholding them is deeply entrenched. 2nd Amendment advocacy law was held back for decades by lack of a Heller type decision by SCOTUS; the combination of Slaughterhouse, Cruikshank, Presser, and Miller has formed a mile wide moat around ugly state laws that state and lower federal courts have used to drown virtually all attempts at squashing them.

[Al Norris]

The "P&I" clause does much more than what Yellowfin said, although for us, that is a good thing.

Consider the fact that many liberals are behind this case, and you have to ask yourself, Why?

Because reinvigorating the "P&I" clause gives constitutional protection to the right to privacy (and Roe v. Wade), instead of those "emanations of penumbras" crap that several other cases have relied upon. There's a lot more at stake then just gun rights, and the liberals know this. So they're willing to give guns a pass, in order to get what they what.

Finally, a compromise that's really a compromise.

Suppose the Supreme Court looks at the Slaughterhouse Cases and overturns them. That overturns Cruikshank, Presser and Miller. All they have to do then is send the case back to the District court for a ruling consistent with that opinion (that the 2A is incorporated via the P&I clause. The Chicago laws fall, because of the precedent set in Heller, without the Court having to specifically say this). We win, big time. The liberals also win, big time.

That could very well see a 9-0 decision.

[Al Norris]

Finally!

The official orders are here (http://origin.www.supremecourtus.gov/qp/08-01521qp.pdf).

08-1521 MCDONALD V. CHICAGO

DECISION BELOW:

LOWER COURT CASE NUMBER: 08-4241, 08-4243, 08-4244

QUESTIONS PRESENTED:

Whether the Second Amendment right to keep and bear arms is incorporated as
against the States by the Fourteenth Amendment's Privileges or Immunities or Due
Process Clauses.

CERT. GRANTED 9/30/2009

[Tom Servo]

QUESTIONS PRESENTED:

Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment's Privileges or Immunities or Due Process Clauses.
That last bit's a little odd: Gura's case eschewed the Due Process argument as being weaker and narrower.

Still, notice the phrase
the Second Amendment right to keep and bear arms
as being an accepted fact.

NightSight, to elaborate, we had two (actually three) methods of incorporation (http://en.wikipedia.org/wiki/Incorporation_(Bill_of_Rights)#Selective_versus_total_incorporation). Total incorporation assumes that the BoR protects individual rights, and that the 14th Amendment, through the Priviliges/Immunities clause, automatically incorporates them against the states.

Due Process involves incorporating rights on a case-by-case (http://law.jrank.org/pages/10268/Shock-Conscience-Test.html) basis as the issue rises. Due Process is usually used to incorporate unenumerated rights.

[Al Norris]

Not odd at all, when you have read all the briefs Gura has written in regards the McDonald case.

A quick summary would be that Due Process incorporation was never a valid approach. It should have been the P&I clause all along.

Due Process Doctrine was invented by the Court to allow incorporation without having to overturn Barron v. Baltimore, and its progeny (Slaughterhouse (1873), et al). An 1833 decision that held the BOR was intended only to affect the Federal government.

The problem being that the 14th directly addressed Barron. However, the Court in Slaughterhouse refused to accept that with the 14th, federalism had changed in a dramatic manner, in as much as the 14th commanded the States to recognize individual liberties as stated in the BOR. The amendment gave the Congress the power to pass laws against those States that refused to recognize the privileges and immunities of the BOR. Justice Miller, writing for the majority in Slaughterhouse, point blank said that the Court could not and would not accept this change of nature in federalism. Therefore, the P&I clause could not have meant what the Congress had thought it meant.

It wasn't until Gitlow v. New York (1925) (although some say it started with Chicago, Burlington and Quincy Railroad (1897)), that the Supreme Court began to incorporate substantial rights against the States.

So, with Gura's question being the one that will be answered by the Court, he has invited the Court to look at Slaughterhouse, and find that the P&I clause does mean what it says. If the Court decides not to overturn Slaughterhouse they can always fall back and incorporate via their Due Process Doctrine. Hence the double sided question.

The mere fact that the Court has granted cert to McDonald and not NRA, means that at least 4 Justices are willing to look at Slaughterhouse. This is even more evident, because the Court has not modified the Question at all. It is the Question as presented in Gura's petition for certiorari.

While Heller was big; While incorporation of the 2A will be big as well; This case has the potential to be the biggest case of the last 150 years, should Slaughterhouse be overturned and the P&I clause be reinvigorated.

[raimius]

I can hardly imagine what a reinterpreted 14th would do (besides 2nd Amendment implications).

It's not opening a new can of worms...more like a tackle shop!
This could be REALLY interesting!

[Tom Servo]

Not odd at all, when you have read all the briefs Gura has written in regards the McDonald case.
Would you believe I glossed completely over the first page and jumped into the meat of the thing when I read it? D'oh!

So, with Gura's question being the one that will be answered by the Court, he has invited the Court to look at Slaughterhouse, and find that the P&I clause does mean what it says.

Hugo Black, in Duncan,

In response to this I can say only that the words "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" seem to me an eminently reasonable way of expressing the idea that henceforth the Bill of Rights shall apply to the States. What more precious privilege" of American citizenship could there be than that privilege to claim the protections of our great Bill of Rights? I suggest that any reading of "privileges or immunities of citizens of the United States" which excludes the Bill of Rights' safeguards renders the words of this section of the Fourteenth Amendment meaningless. Senator Howard, who introduced the Fourteenth Amendment for passage in the Senate, certainly read the words this way.

If the Court decides not to overturn Slaughterhouse they can always fall back and incorporate via their Due Process Doctrine. Hence the double sided question.
Hoping it doesn't come to that. We shouldn't have to prove the "quality and character" of the right, nor should it be considered an "emanation" of any sort.

The mere fact that the Court has granted cert to McDonald and not NRA, means that at least 4 Justices are willing to look at Slaughterhouse. This is even more evident, because the Court has not modified the Question at all. It is the Question as presented in Gura's petition for certiorari.
I think we can expect Kennedy to be warm to the idea as well, which would give us a simple majority. Stevens invoked Privileges or Immunities in Saenz v. Roe. How the other Justices rule...well, it'll be a litmus test for their beliefs on issues above and beyond the 2nd Amendment.

So far, the liberal Constitutional Accountability Center is behind the case, stating, "there are very important progressive values at stake in the outcome." John Payton of the NAACP has endorsed it as well.

[Bartholomew Roberts]

The other bonus to adding the P&I argument is it may win you more votes. If 3 Justices vote to reverse the 7th Circuit because the Second is incorporated through due process and 3 Justices vote to reverse the 7th Circuit because the Second is incoporated through the P&I clause, that is a 6-3 win for us even though neither point of law managed to get more than 3 votes.

I think another important point will be the numerous states passing "Firearms Freedoms Acts". The only real argument that the antis will have against incorporation is that the individual right to bear arms was made with the purpose of preserving the ability of the states to raise a militia and that as such, the states should be able to regulate firearms without the Second Amendment applying to them. However, if the antis make that argument successfully, then they just opened a HUGE can of worms with regards to the litigation over the Firearms Freedom Acts.

From a "which mess will be easier for the Court to clean up" perspective, incorporation through due process should be a clear winner.

[BillCA]

Tom,

While I agree with Justice Black's opinion, remember that the court claimed that the "privileges or immunities of citizens of the United States" had nothing to do with the a citizen's rights within a State. They also claimed that the BoR protected "pre-existing rights" (prior to the Constitution) and could not, thus be "privileges or immunities" which would be granted by the government.


It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a state, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual.

We think this distinction and its explicit recognition in this Amendment of great weight in this argument, because the next paragraph of this same section, which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several states. The argument, however, in favor of the plaintiffs, rests wholly on the assumption that the citizenship is the same and the privileges and immunities guaranteed by the clause are the same.”
—Slaughterhouse Cases: 83 U.S. 36, 73-74 (1873)

[armoredman]

Question, if Slaughterhouse was a basis of Miller, as presented earlier, and it is overturned, what possible effect does this have on Miller and NFA of 1934?

[Tom Servo]

While I agree with Justice Black's opinion, remember that the court claimed that the "privileges or immunities of citizens of the United States" had nothing to do with the a citizen's rights within a State.
Black was, unfortunately, a voice in the wilderness on that front. The Court rolled ahead with the discretionary Due Process approach, but the question remains: was that the acceptable and right course?

Gura's case argues that it was not. There's a great deal of credible authority on both sides of the political spectrum that agrees with him.

They also claimed that the BoR protected "pre-existing rights" (prior to the Constitution) and could not, thus be "privileges or immunities" which would be granted by the government.
Regardless of Miller's (or any other Justice's) interpretations, the original meaning of the framers was quite clear:

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 (...)

(39th Congressional Session (http://tinyurl.com/ydmqc8u), p. 2765)

[Yellowfin]

Miller wasn't really based on very much at all, really. It's an odd ruling with very little to go on. They didn't have to really justify it much since it wasn't really argued as Miller's side didn't submit briefs and Miller himself was dead before it got to the Supreme Court. It was really a worst case scenario and the political pressure by King FDR was largely responsible for it going the way it did. The NFA should never have stood.

[Al Norris]

Armoredman, when discussing incorporation, the Miller case everyone is should be referencing is Miller v. Texas, 153 U.S. 535 (1894), not United States v. Miller, 307 U.S. 174 (1939).

Yeah, it can get confusing sometimes.

Edited to add: The Miller case we are referencing is here (http://supreme.justia.com/us/153/535/case.html), and it's real short. The relevant portion is the last paragraph.

[Hugh Damright]

the original meaning of the framers was quite clear ... "to these privileges and immunities ... should be added the personal rights guaranteed and secured by the first eight amendments"
I disagree. I don't think that Howard's comment was representative. He was not "the Framer", but rather (IIRC) the amendment came from a committee of fifteen, and that committee never discussed the 14th making the USBOR binding upon the States. Howard only introduced the 14th because the chairman of the joint committee was sick that day. And when Howard sat down, several people then stood and said that the scope of the 14th was the same as the Civil Rights Act. It is one thing to say that a couple of radicals like Bingham and Howard wanted the 14th to make the USBOR binding against the States, but quite another to call them "the Framers" and then conclude that the 39th Congress intended incorporation. The great body of evidence seems to be that the 39th Congress intended the 14th to cover the same ground as the Civil Rights Act.

[armoredman]

Ah, thank you. I am not a lawyer, nor do I play one on TV.:cool:

[Tom Servo]

The great body of evidence seems to be that the 39th Congress intended the 14th to cover the same ground as the Civil Rights Act.

I've read Fairman's arguments, but he made his own "independent analysis" of the issue before he read the debates, and I find him somewhat biased. Fairman relied on a criticism of incorporation doctrine based on Dred Scott v. Sanford--a case the Reconstruction amendments sought to overrule.

Are there still contemporary arguments against the idea?

[Al Norris]

I am not a lawyer, nor do I play one on TV.:cool:
...and the last time I stayed in a Holiday Inn was in '97!

One thing that is being overlooked in a lot of the discussions I've read, is that the ruling could incorporate without having to specify what level of scrutiny will apply.

I would posit that IF incorporation is via the P&I clause, then by the very nature of that clause, strict scrutiny would then attach. Not just to the 2A, but to all the BOR: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;" The language used is clear.

[BillCA]

Al,

With all due respect to your valued insight on legal matters...

The language used is clear.

The right to keep and bear arms shall not be infringed.

That language is clear too, and look at the trouble we're having defining what "infringed" means. :rolleyes: :mad:

[Tom Servo]

The right to keep and bear arms shall not be infringed.

That language is clear too, and look at the trouble we're having defining what "infringed" means.
There are differences. First off, we have a larger mountain of irrefutable textual and historic evidence on our side. Second, we've got support from both sides of the political spectrum.

Third, this is a matter that really transcends any single part of the BoR; it encompasses a whole doctrine of interpretation. Sure, the 2nd Amendment is the vehicle, but regardless of their feelings on that, any Justice is going to have a hard time saying that there's any ambiguity in the wording of the 2nd Clause of the 14th.

[Tennessee Gentleman]

I think the problem many have with words like "abridged" and "infringed" concerning civil rights is that it does not mean no restrictions whatsoever.

There is no absolute right and often the language which you may think is clear to you is not so clear to another and so that is why we need courts to interpret and decide what an "infringment" is.

If the court says the law or rule is not an infringment then by definition your right has not been infringed no matter what you the individual may think. Part of living in a political society.

[Yellowfin]

I don't think at all that it's a matter of unclear language or degree of allowable restriction. It is simply a matter of degree of tolerance we the people have for the nefarious desecration of our rights and just how far a judge or group of judges and lawyers figure they can go with doing so while thinly disguising their efforts as seeking clarification of the law rather than being completely up front and honest about destroying it in a piecemeal fashion.

[Hugh Damright]

We say that the RKBA is not a privilege but a right, and then we turn around and say that the RKBA comes under the 14th's "privileges or immunities". It seems inconsistent to me.

I think one way to look at it is to question which aspects of the right to keep and bear arms should come under the privileges/immunities of US citizenship, and which aspects of the RKBA should come under the P&I of State citizenship. For instance, we might say that the right to keep a gun in the home should come under the P&I of US citizenship and exist throughout the Union, and we might say that the right to carry a concealed weapon should come under the P&I of State citizenship and vary from State to State. The point being that we would not be straining to make a distinction between rights and privileges.

It seems to me that the word "privileges" can mean "rights of citizenship". It is a privilege of citizens. They are the privileged class.

[Jim March]

Hugh, you know better. You know exactly where that phrase comes from and that if refers to RIGHTS, not "privileges".

We are all aware that you hate the 14th Amendment with a passion. This is however a new low for you. Please, do us a favor and just go away.

[Al Norris]

Just to clarify, for those whom might be confused over just what "Privileges and Immunities" (Art. IV) and "Privileges or Immunities" (14th amend.) might mean.

First, the phrase is a term of art. It was well understood to mean those rights that are political (Privileges) and those rights that are natural (Immunities).

If you want to further understand this concept, you will need to read something of the works of Thomas Hobbes (1588–1679); John Locke (1632–1704); Francis Hutcheson (1694–1746); among others.

The philosophies of these men were highly influential among the colonists. So much so, that Thomas Jefferson used Hutcheson's terminology when framing the Declaration of Independence,
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights..."
and then modified Locke, by writing,
"... Life, Liberty and the pursuit of Happiness."
These alienable and unalienable rights were first codified into the Articles of Confederation. They carried over into the Constitution and finally the 14th amendment.

Sorry Hugh. There was never a doubt about what the phrase meant. That fact stands, when the Court in Slaughter-House refused to implement the Constitutional directives.

[Hugh Damright]

Are there still contemporary arguments against the idea?
I think so. I have not read Fairman, but I have a book which contains all of the congressional debates over the reconstruction amendments, and I have read enough to believe that the 39th Congress did not and would not have passed something which made the USBOR binding against the States. I don't seem to find any debate over the subject, just a couple of radicals saying that they thought the 14th should make the USBOR binding against the States. The Amendment came out of a committee of fifteen, and I find it hard to believe that the committee intended to make the USBOR binding upon the States when they didn't discuss it or draft the amendment so that it declared it. I am not aware that it was discussed in the House, or the Senate, or that the States discussed making the USBOR binding against the States when (supposedly) ratifying the amendment. In general, I think the evidence against incorporation completely outweighs the evidence for it.

I've read Bradfords Original Intentions which firmed up my impression, and I've read enough of Berger's Government by Judiciary to wonder how I could have ever believed that the 14th was intended to make the USBOR binding against the States.

By the way, Berger's book is online, and the chapter on incorporation is at http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=675&chapter=106927&layout=html&Itemid=27

[Hugh Damright]

the phrase is a term of art. It was well understood to mean those rights that are political (Privileges) and those rights that are natural (Immunities).
I think it was well understood to mean something different.

First off, If we look at the legislative history of the 14th Amendment, beginning with the Freedmen's Bureau Bill, and then the 1866 Civil Rights Act, and then the 14th ... at one point the legislation used the term "civil rights and immunities", and it was changed to "privileges and immunities" to ensure that it was not construed to include political rights. Mostly, they intended to exclude the right to vote. But they said the intent was to exclude political rights. So I don't see how we can say that the 14th's P&I were understood to mean political rights.

And immunities are something that belong to a select group, making them immune to some obligation that the people in general may have ... whereas natural rights, I think, do not belong to a select group but to everyone. I don't see how the word "immunities" is a reference to natural rights.

I think the 39th Congress understood the 14th's P&I to be the same as those spelled out in the 1866 Civil Rights Act. I have a book with all of the congressional debates over the reconstruction amendments, and it has an index which contains "privileges and immunities", so I can reference every single discussion, and I have done so, and I am at a loss as to where we get this idea that privileges and immunities means political and natural rights, much less the idea that it was well understood that way. I do not seem to recall even one quote from a lone radical in the 39th Congress which says that the 14th's "privileges" were political rights or that the 14th's "immunities" were natural rights. But so many radicals said so many crazy things, maybe I just don't remember this one.

[Tom Servo]

I've read Bradfords Original Intentions which firmed up my impression, and I've read enough of Berger's Government by Judiciary to wonder how I could have ever believed that the 14th was intended to make the USBOR binding against the States.
You may need to broaden your sources a bit.

Berger wrote with an agenda. Most of his writings betray a personal vendetta he seemed to have against the Warren court, particularly Justice Black. This isn't just my opinion; I was first told this by the history professor who assigned it to me as reading, himself a liberal.

Read Akhil Amar's Further Adventures of the Nine-Lived Cat to see just how many telling omissions (http://www.stephankinsella.com/wp-content/uploads/texts/berger_reply-to-curtis.pdf) Berger made to argue his case, just as Fairman did.

Check out Amar or Michael Kent Curtis for more well-rounded interpretations. As far as original debate and intent, the 39th Congressional Globe is available online in full.

Rhetorical question: If the 14th Amendment wasn't designed to apply the Bill to the States, then what was it for?

Bear in mind, this argument wasn't just an abolitionist fabrication. Georgia Chief Justice Lumpkin, himself a slaveholder and secessionist, found, in Campbell v Georgia (1852), that:

While the amendments to the Constitution of the United States were primarily intended to be restrictive upon the powers of the General Government, and not the Legislatures of the several States--yet they are "declaratory" of great principles of civil liberty, which neither the national nor the State governments can infringe.

[Tom Servo]

Please don't take offense, but I'm seeing a lot of "I think" and "it seems" in your arguments. Could you quote book and chapter for us?

I'm not ribbing you; I'd just like the chance to read them.

[Al Norris]

Moved 5 posts from the Palmer thread to this one. Corrected Hugh's quote to reflect who he was quoting and from where.

[Bartholomew Roberts]

We say that the RKBA is not a privilege but a right, and then we turn around and say that the RKBA comes under the 14th's "privileges or immunities". It seems inconsistent to me.

Hugh, you are either getting old and short in the memory or that was a damn disingenuous thing to say as Jim March noted. I know we have discussed exactly where the "privileges and immunities" language comes from before and why that was an important indicator that the 14th was meant to incorporate the 2nd Amendment as well (http://www.thehighroad.org/showthread.php?t=373671&highlight=14th+Amendment).

As a refresher, the reason the "privileges and immunities" language was used was because one of the explicit stated purposes was to overturn the decision in Dred Scott. The drafters of the 14th Amendment used the same exact language the Supreme Court used in describing rights protected by the Constitution in that case to make the point abundantly clear.

For example (from Dred Scott (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=60&invol=393)):

"Consequently, no State, since the adoption of the Constitution, can by naturalizing an alien invest him with the rights and privileges secured to a citizen of a State under the Federal Government, although, so far as the State alone was concerned, he would undoubtedly be entitled to the rights of a citizen, and clothed with all the [60 U.S. 393, 406] rights and immunities which the Constitution and laws of the State attached to that character. "

To give an even better example from the same decision, showing why this is relevant to the Second Amendment AND strongly pointing to how this language was meant to refer to the Bill of Rights:

"More especially, it cannot be believed that the large slaveholding States regarded them[ Negroes ] as included in the word " citizens", or would have consented to a constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public, and in private upon all subjects upon which its own citizens might speak; to hole public meetings upon political affairs, and TO KEEP AND CARRY ARMS WHERE THEY WENT."

I won't belabor the point since I know you have had this discussion more than a few times with people who were very well-educated on the subject.

[Tom Servo]

Apologies if this is too much of a a drive-by, but the LA Times had an interesting op-ed today. They're hardly known for their support of the 2nd Amendment, but they reluctantly support this case:

If you support measures to reduce gun violence, as this page does, it's tempting to hope that the court will rule that states aren't bound by the 2nd Amendment. The problem is that allowing states (and cities) to ignore this part of the Bill of Rights could undermine the requirement that they abide by others. (...) This is no time for the court to start picking and choosing when it comes to the Bill of Rights.

[maestro pistolero]

I hope, after finding the 2nd to be incorporated, that the majority will be as eager to offer much-needed guidance as to what constitutes a sensitive place, as it was in tossing out that nebulous, vague term in the first place. Perhaps more useful to our point of view, would be clarification of what does NOT constitute a sensitive place.

Another point, if possession, or more accurately bearing were to be limited to the home as Helmke and others disingenuously insist, why would the court even suggest that certain sensitive places may be out of bounds for bearing? Wouldn't they all be out of bounds?

[Hugh Damright]

the 39th Congressional Globe is available online in full
Thanks, but I have a book which contains the congressional debates over the reconstruction amendments. I'm only on page 525, but it's a big book with tiny print ... I figure it's about a million words that I've read so far. My view is based upon my study of the congressional record. And also it helped me to read a couple of books about the reconstruction era so I could better understand what the 39th Congress was up to.

the reason the "privileges and immunities" language was used was because one of the explicit stated purposes was to overturn the decision in Dred Scott. The drafters of the 14th Amendment used the same exact language the Supreme Court used
The legislative history that I remember reading shows that the term began as "civil rights and immunties" and was changed to "privileges and immunities" to ensure that it was not construed so as to include political rights.

If the 14th Amendment wasn't designed to apply the Bill to the States, then what was it for?


Bingham thought that a civil rights act would be unconstitutional and that an amendment was required, that was the origin of the 14th.

I think it's probably fair to say that Bingham, at least at some point, designed the 14th to apply the USBOR to the States. I also think it's fair to say that in the end the final version of the 14th was passed with the intent of making the 1866 Civil Rights Act part of the US Constitution. The South was about to regain its representation, it was believed that the act would be repealed, and the 14th was intended to make the act part of the US Constitution where it would take 3/4 of the States to repeal it, thus circumventing the South's representation.

The intent was clearly to end racial discrimination in certain areas. We might argue about what more it did, but certainly it was intended to do that.

If there was a need to make the USBOR binding upon the States, then why didn't the 1866 Civil Rights Act do that?

[Hugh Damright]

Previously, on another forum, when someone asserted that the 14th's "immunities" was a reference to fundamental rights, I took time to look for any comments in the congressional debates over the reconstruction amendments about the definition of "immunities", and found:

On Feb 28th 1866, Bingham explained that the word "immunities" meant "exemption from unequal burdens".

On Mar 1st 1866, Wilson of Iowa explained that the word "immunities" simply means "freedom or exemption from obligation; an immunity is a right of exemption only, as an exemption from serving in an office, or performing duties which the law generally requires other citizens to perfom. This is all that is intended by the word "immunities" as used in this civil rights bill. It merely secures to citizens of the US equality in the exemptions of the law."

Feb 8th, 1869 Senator Frelinghuysen: "An immunity is an exemption from a duty; not the guarantee of a right."

Apr 5, 1869 Mr. Golladay: "immunities are rights of exemption only, freedom from what otherwise would be a duty or burden."

Apr 6, 1871 Burchard: immunities means "exemption from a burden".


If anyone has additional information, then let's add that to my list. But that is what I found when I looked, and there seems to be no assertion that the word "immunities" is a reference to fundamental rights, natural rights, the bill of rights, or anything of that nature.

[Bartholomew Roberts]

The legislative history that I remember reading shows that the term began as "civil rights and immunties" and was changed to "privileges and immunities" to ensure that it was not construed so as to include political rights.

The Civil Rights Bill was introduced on January 5, 1866 and was drafted by a different committee than the one proposing the 14th Amendment. This original version contained the phrase "civil rights and immunities" and went on to list the right to make contracts, serve on juries, etc.

The first draft of the 14th Amendment was actually January 12th. It read:

"The Congress shall have power to make all laws necessary and proper to secure to all persons in every state within this Union equal protection in their rights of life, liberty and property."

On January 27, Bingham, Boutwell, and Rogers adopted this language:
"Congress shall have power to make laws which shall be necessary and proper to secure all persons in every state full protection in the enjoyment of life, liberty and property; and to all citizens of the United States in every State the same immunities and also equal political rights and privileges."

Senator Johnson (who was also counsel for the slaveholder in Dred Scott) made a motion to strike the privileges and immunities clause and lost. Now it seems strange to me that if the language in the 14th Amendment is meant only to mirror the limited interpretation given the "civil rights and immunities" in the Civil Rights Act - why did Senator Johnson attempt to strike that language when there was no objection from him to the Civil Rights Act?

If there was a need to make the USBOR binding upon the States, then why didn't the 1866 Civil Rights Act do that?

Because a bill cannot change the Constitution of the United States. Only an amendment to the Constitution can do that. Given the Constitutional interpretations in Barron v. Baltimore and Dred Scott, what exactly could be done with the 1866 Civil Rights Act standing alone?

For that matter, let's look at the remarks of Sen. Howard as he introduced the 14th Amendment in the Senate on behalf of the Joint Committee:

"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 great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees" Source (http://www.constitution.org/col/intent_14th.htm).

So your interpretation is that the Senator introducing the bill on behalf of the Joint House-Senate Committee was a radical minority and his statement that the object of the bill was to guarantee the personal rights secured by the first eight amendments against the states was not the prevailing view of the people who voted for it and ratified it (or of the Joint Committee that he represented?)

[Tom Servo]

Hugh, your arguments I've seen elsewhere seem to hinge on the idea that the 14th Amendment sounded the death knell for States' Rights. This isn't really true.

The Bill of Rights can be considered a written confirmation of the compact that exists between man and government. Those rights cannot be denied by any just government, whether Federal, State or local. The 14th was a confirmation of this.

States still have the autonomy to pursue their own diverse policies and practices; they simply are not entitled the power to infringe upon the rights of their citizens.

I simply cannot fathom your implication that the 14th was never properly ratified when ratification was unanimous (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1076805)by the time of Georgia's readmission to the Union.

You've done a good job of playing devil's advocate, and you've pointed me to some interesting reading, but the bulk of analysis does not agree with your conclusions.

[jimpeel]

I wish that people would not use the term "State's rights" as States only have powers. Only persons have rights.

The word "right" only appears once in the body of the Constitution and that reference is to persons -- authors and inventors -- not entities.

The sixteen times that the words "power" or "powers" is used is in exclusive reference to entities -- The States, Judiciary, Executive, or Congress.

Call me picky.

[Hugh Damright]

civil rights and immunities ... privileges and immunities
I tend to think that the primary reason for Bingham choosing the term "privileges or immunities" was because he borrowed it from Article IV. Bingham had a notion that the declaration that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens of the several States" made the USBOR binding upon the States, but failed to delegate a federal power to enforce the provision. And he was out to "fix" that.

"The employment here, in the first clause of this amendment, of the identical language contain in article four, section two, of the Constitution, seems like an atttempt to force upon it a construction that has always been denied by judicial authorities and commentators upon the Constitution; and its use here, in connection with the remaining clause, can only be intended to enlare its signification without being sufficiently explicit to make its meaning undisputed." - Nicholson April 7, 1866 (39th Congress)

I somehow have it in my mind that the term "civil rights and immunities" was changed to "privileges and immunities" with an intent of narrowing the scope, specifically to exclude political rights. To be blunt about it, the yankee congress didn't want to force black suffrage upon their own States. That is how I'm remembering it. Regardless, my comment about the P&I was in response to an assertion that it was well understood that "privileges" means "political rights" while "immunities" means "natural rights". Who in the 39th Congress understood it that way, and on what date did they declare so? I seem to be at a loss.

What I'm thinking is that Bingham chose the term "privileges or immunites" because of Article IV, and because congress as a whole had gone with the term rather than the term "civil rights and immunities" which covered too much ground.

This other idea, where the term "privileges or immunities" was chosen with the purpose of incorporating Taney's dicta in Dred Scott about the P&I including the RKBA, seems so results oriented that it leaves me feeling uncomfortable. Did anyone in the 39th Congress say that they understood the term "privileges or immunities" to be used so that it would embrace Taney's dicta about the RKBA being part of the P&I?

Here's a question ... why was it that when the Freedmen's Bureau Bill was amended to specifically include the RKBA, it was not added to the enumeration of civil rights and immunities, but rather it was added to the equal protection clause?


if the language in the 14th Amendment is meant only to mirror the limited interpretation given the "civil rights and immunities" in the Civil Rights Act - why did Senator Johnson attempt to strike that language when there was no objection from him to the Civil Rights Act?
I'm not sure ... but it appears to me that Senator Johnson was opposed to the Civil Rights Act as being unconstitutional, and he did not engage in debate with the intent of rewording the amendment, but rather he simply objected to the whole thing. And then when an amendment came up, that was different, and he engaged in debate over its wording. I don't think we can say that Johnson approved of the way that the Civil Rights Act was worded just because he didn't try to get it worded differently ... I suspect that he didn't bother with how it was worded because he felt there was no way to word it properly because he thought it was unconstitutional.


[The 1866 Civil Rights Act didn't make the USBOR binding against the States] Because a bill cannot change the Constitution of the United States. Only an amendment to the Constitution can do that.I don't seem to recall any discussion about how there was a need to make the USBOR binding upon the States but a bill cannot do such a thing. The way I understand it, the Civil Rights Act and the 14th Amendment were two approaches to the same problem ... Bingham thought that the act was unconstitutional and that was the origin of the 14th. It seems to me that the 1866 Civil Rights Act did not make the USBOR binding against the States because there was no such need or desire (except by a few radicals).


Given the Constitutional interpretations in Barron v. Baltimore and Dred Scott, what exactly could be done with the 1866 Civil Rights Act standing alone?I'm not sure that I understand the question. The act said "That all persons born in the United States ... are hereby declared to be citizens of the United States; and such citizens ... shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, [etc.]". It seems clear enough what the act did. If you're asking how the Act could have stood up to constitutional challenges, I think it could not have, and I think that was one of the reasons why the 14th was intended to make the civil rights act part of the US Constitution, to settle the question of its constitutionality.


So your interpretation is that the Senator introducing the bill on behalf of the Joint House-Senate Committee was a radical minority and his statement that the object of the bill was to guarantee the personal rights secured by the first eight amendments against the states was not the prevailing view of the people who voted for it and ratified it (or of the Joint Committee that he represented?)
Yes, that is my impression. Howard was not the Chairman who was supposed to represent the committe, but rather the Chairman was ill and Howard stepped in for him. I have read that most of the committee were conservatives (relatively speaking) and that Howard was a radical. I have read that the committee did not discuss making the USBOR binding upon the States. And after Howard gave his introduction, in which he said that the P&I should include the USBOR, person after person stood and said that the scope of the 14th was the same as that of the civil rights act.


I simply cannot fathom your implication that the 14th was never properly ratified when ratification was unanimous
I've read that the 14th was presented to Virginia for our consideration, and it got zero votes in our house, and zero votes in our senate ... the US then put Virginia under military rule and said we could have our rights back when we voted for the 14th. Virginia became "US Military District Number One". The whole South was put under military rule and divided into military districts. Let's be clear about this now ... the war was over, the States were back in the Union, the 14th was presented to us for our vote, and when the South began voting against it the whole region was put under military rule until we voted for it. There were other problems too, such as the Southern States being denied representation in the Congress.

It was given that the 14th would fail. Because it was given that the South would repeal the civil rights act, and the intent was for the 14th to make the Civil Rights Act part of the Constitution so the South couldn't repeal it. It was only a question of whether they would ratify the 14th without the Southern States or whether they would force the Southern States to ratify it against our will. They seemed to like to pretend to appear legitimate, so they went with the later method. We should not be fooled.

[Bartholomew Roberts]

And after Howard gave his introduction, in which he said that the P&I should include the USBOR, person after person stood and said that the scope of the 14th was the same as that of the civil rights act.

The purpose of the Civil Rights Act, as you just stated, was to make blacks citizens of the United States. Now having read the Dred Scott opinion that turned on that very issue, what would that mean for blacks? It would mean they would have the same rights... or as Justice Taney remarked in Dred Scott - "It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public, and in private upon all subjects upon which its own citizens might speak; to hole public meetings upon political affairs, and to keep and carry arms where they went."

Now what types of rights does Justice Taney appear to be enumerating there?

If the scope of the Civil Rights Act was to grant these rights to blacks and the scope of the 14th is to make sure that Congress can prevent the states from infringing those rights, where is the substantial difference between incorporating the BoR against the States and whatever it is you think happened?

[maestro pistolero]

Bingham had a notion that the declaration that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens of the several States" made the USBOR binding upon the States, but failed to delegate a federal power to enforce the provision.
Why wouldn't the courts via the justice department enforce the provision, as they would any other provision of the BOR?

[Tom Servo]

I have read that the committee did not discuss making the USBOR binding upon the States. And after Howard gave his introduction, in which he said that the P&I should include the USBOR, person after person stood and said that the scope of the 14th was the same as that of the civil rights act.
Again, can you tell me who wrote this and where?

There wasn't much discussion because there wasn't much to discuss:

In fact, as Michael Kent Curtis found, no contemporary source explicitly denied the contention of Bingham and his allies that the Fourteenth Amendment would enforce the Bill of Rights against the states. Immediately after Senator Howard's speech in the Senate stating that the Bill of Rights constituted a major portion of Fourteenth Amendment privileges and immunities, the Chicago Tribune reported that the caucus of Union Republican Senators agreed to limit debate on the Fourteenth Amendment. This action was taken because the Amendment had "already [been] thoroughly discussed and understood." Likewise, Governor Reuben E. Fenton of New York urged speedy ratification of the Amendment insisting that its provisions "are understood, appreciated and approved." --Richard Aynes, On Misreading John Bingham and the Fourteenth Amendment (http://www.constitution.org/lrev/aynes_14th.htm)

Regarding the perceived overlap between the 14th and the Civil Rights Act, Bingham worried that the Civil Rights Act was repealable and lacked enforcement authority. That was the point of the 14th (Timothy Farrar, Manual of the Constitution of the United States of America)

What I'm thinking is that Bingham chose the term "privileges or immunites" because of Article IV, and because congress as a whole had gone with the term rather than the term "civil rights and immunities" which covered too much ground.
They mean the same thing. Attorney General Bates, in an 1862 opinion, found:

For the Constitution speaks of citizens only, without any reference to their rank, grade, class, or to the number or magnitude of their rights, privileges and immunities--citizens simply, without and adjective to qualify, enlarge, or diminish their rights and capacities.

[Hugh Damright]

The Civil Rights Bill was introduced on January 5, 1866 and was drafted by a different committee than the one proposing the 14th Amendment. This original version contained the phrase "civil rights and immunities" and went on to list the right to make contracts, serve on juries, etc.

The first draft of the 14th Amendment was actually January 12th. It read:

"The Congress shall have power to make all laws necessary and proper to secure to all persons in every state within this Union equal protection in their rights of life, liberty and property."

On January 27, Bingham, Boutwell, and Rogers adopted this language:
"Congress shall have power to make laws which shall be necessary and proper to secure all persons in every state full protection in the enjoyment of life, liberty and property; and to all citizens of the United States in every State the same immunities and also equal political rights and privileges."

This seems misleading to me.

On March 13th, S. No. 61 "An Act to Protect all Persons in the United States in their Civil Rights and Furnish the Means of their Vindication" was amended to remove the term "civil rights and immunities" over concern that it was too broad.

And it was later, on April 30th, that the final draft of the 14th, the one that used the term "privileges or immunities" and passed, was introduced.

Congress rejected the term "civil rights and immunities" over concern that it might be construed to include the political right of suffrage, and then they accepted the 14th's term "privileges and immunities".

[Hugh Damright]

what types of rights does Justice Taney appear to be enumerating?
Honestly? It appears to me that Taney was enumerating rights that were perceived as dangerous for negroes to have. It appears to have been a rant. Does it hold up to scrutiny ... is there a federally protected right for citizens of one State to form armed companies and enter another State, or was it just a rant about negroes doing something like that? And when Taney said that citizens had a right to carry arms where they went, how do we square that with the fact that the Second Amendment did not bind the States?


If the scope of the Civil Rights Act was to grant these rights to blacks and the scope of the 14th is to make sure that Congress can prevent the states from infringing those rights, where is the substantial difference between incorporating the BoR against the States and whatever you think happened?
I don't think that a Chicago handgun ban would violate the 1866 Civil Rights Act. As long as the law was not discriminatory, nor enforced in a discriminatory manner, there would be no federal jurisdiction. In contrast, incorporation is intended to increase the federal jurisdiction to an incredible degree. I think incorporation increases federal jurisdiction to such a degree that it alters the fundamental state/federal relationship and subverts our frame of government.


Why wouldn't the courts via the justice department enforce the provision, as they would any other provision of the BOR?
I think Bingham was mistaken about what the provision meant. He thought the intent was for the States to respect certain rights of their citizens, but instead the intent was for States to respect certain rights of citizens from other States ... in other words, the intent was not to define the "privileges and immunities" of Virginians, but rather the intent was to say that whatever the "privileges and immunities" are in Virginia, we must respect that citizens from other States who come to Virginia are entitled to them as well.

I will point out that Article III, Section Two of the US Constitution defines the US judicial power such that it does not extend to matters between a citizen and his State. So there was no intent to create a US judicial power where we could take our State to US court for violating our rights.


Again, can you tell me who wrote this and where?
I said that I've read that the Joint Committee that drafted the 14th didn't discuss making the USBOR binding upon the States ... I see that on page 179 of Berger's Government by Judiciary. So when Howard said that the 14th's P&I should include the USBOR, I think he was expressing a personal opinion and not speaking for the committee.

And I said that after Howard said that the 14th's P&I should include the USBOR then others said that the 14th's scope was the same as the civil rights act. Actually, now that I look, most of what I remember came before Howard's speech ... let's see ... first there was Stevens introducing debate on the 14th on May 8th:

House, May 8th - Stevens introducing debate on the 14th: "Some [say] that your Civil Rights Bill does the same thing. That is partly true, but ... it will be repealed ... this amendment once adopted cannot be annulled without two thirds of congress."

House, May 8th - Rep Garfield on the 14th: "Every gentleman knows [the civil rights bill] will cease to be a part of the law whenever the sad moment arrives when [the South regains its representation in Congress]. It is precisely for that reason that we propose [the 14th]."

House, May 8th - Rep Boyer on the 14th: "The first section embodies the principles of the civil rights bill ... it is objectionable also in its phraseology, being open to ambiguity and admitting of conflicting constructions."

House, May 8th - Rep Broomhall on the 14th: "The fact that all who will vote for [the 14th] ... voted for this proposition in another shape, in the civil rights bill ... shows that it will [pass] ... "It may be asked, why should we put a provision in the Constitution which is already contained [in the civil rights act]? [Mr. Bingham] says the act is unconstitutional ... I wish to make assurrance doubly sure ... and to prevent a mere majority from repealing the law"

Then Howard introduced the 14th on May 29th, saying that the 14th's P&I should include the USBOR, and:

House, May 29th - Rep Latham on the 14th: "the civil rights bill covers exactly the same ground as this amendment"


There wasn't much discussion because there wasn't much to discuss:
It seems to me that making the USBOR binding against the States would have been an extremely radical action, and to say that the reason it was never discussed is because there was nothing to discuss seems untenable to me. How about the impact on Northern States, might that have been something to discuss? I think it was not discussed because it was not intended. A couple of radicals said that they thought the P&I should include the USBOR. That's about all there was to it. I don't seem to be aware of any debate in the joint committe, the house, or the senate about the impact of making the USBOR binding against the States.


"Civil rights and Immunities" and "Privileges and Immunities" mean the same thing.
Maybe ... but then why did the Congress reject the phrase "civil rights and immunities" and accept the phrase "privileges and immunities".

[gc70]

I simply cannot fathom your implication that the 14th was never properly ratified

I have to agree with Hugh on this issue. Examination of the record of the 14th Amendment's ratification makes it difficult to conclude that ratification was in any way normal.

Tennessee was the only former Confederate state to freely ratify the 14th Amendment (http://www.usconstitution.net/constamrat.html#Am14) (July 19, 1866). Six former Confederate states (GA, LA, NC, SC, TX, VA) and two Union states (DE, KY) specifically rejected the 14th Amendment prior to March 2, 1867. With 28 of 37 states required to ratify the amendment, eight states had already rejected it, and four former Confederate states had yet to vote; the 14th Amendment was essentially dead in the normal course of the constitutional amendment process.

The Reconstruction Act (http://www.tsl.state.tx.us/ref/abouttx/secession/reconstruction.html), passed on March 2, 1867, placed ten "rebel states" (AL, AR, FL, GA, LA, MS, NC, SC, TX, VA) under martial law and denied them representation in Congress until the 14th Amendment was ratified.

and when said State, by a vote of its legislature elected under said constitution, shall have adopted the amendment to the Constitution of the United States, proposed by the Thirty-ninth Congress, and known as article fourteen, and when such article shall have become a part of the Constitution of the United States, said State shall be declared entitled to representation in Congress

Simply put, the Reconstruction Act forced the "rebel states" to ratify the 14th Amendment. In other circumstances under U.S. law, actions taken under duress are null and void, but not in this case.

To further pollute the ratification process, two Union states (NJ, OH) rescinded their ratification of the 14th Amendment, which Congress simply ignored.

when ratification was unanimous by the time of Georgia's readmission to the Union

Ratification of the 14th Amendment by the 37 states existing in 1866 is still not unanimous. New Jersey never re-ratified its rescinded vote and Ohio only did so in 2003. Kentucky did not originally ratify the 14th Amendment until 1976.

[Bartholomew Roberts]

Congress rejected the term "civil rights and immunities" over concern that it might be construed to include the political right of suffrage

Have you read the debates on Page 2767 of the 39th Congress? Howard states that suffrage should be extended to every single person who is bound by the laws, regardless of color, in the debate on the 14th Amendment. He doesn't backtrack from that point at all until Senator Johnson asks him if that means women too.. and then he starts to waffle. So if suffrage was the reason behind the language change, it seems to me that these comments would be pretty inflammatory... but in contrast, even Johnson does not challenge this and several Senators proceed to speak out in support of extending suffrage to blacks.


It seems to me that making the USBOR binding against the States would have been an extremely radical action, and to say that the reason it was never discussed is because there was nothing to discuss seems untenable to me. How about the impact on Northern States, might that have been something to discuss? I think it was not discussed because it was not intended. A couple of radicals said that they thought the P&I should include the USBOR. That's about all there was to it.

So Hugh, you are saying that making the USBOR is such a radical concept that nobody but a few radicals intended it, yet when the bill is introduced to the Senate with exactly that intent, everybody ignores that part?

Johnson, who was definitely opposed to the 14th and the Civil Rights Act, is one of the first Senators to speak after Howard. And what is the first thing he does? He brings up the suffrage issue. No discussion at all about the "eight amendments" comment. Then come comments by Senators Wade, Wilson, Clark, Fessenden, etc. You claim this is a radical view and yet when the 14th Amendment is presented with this introduction (which you also claim is a deviation from the intent of the Joint Committee), nobody comments on it?

Let me try putting this another way...

What were the state laws that infringed on a white man's rights under the first eight amendments of the Constitution at the time these debates were held? Were there any?

Stevens introduction on May 8:

"They are all asserted in some form or other, in our Declaration or organic law; but the Constitution limits only the actions of Congress and is not a limitation on the states. This amendment supplies that defect and allows Congress to correct the unjust legislation of the States, so far that the law that operates upon one man, shall operate equally upon all."

Your assertion is that the Amendment was only designed to the specific issue that Stevens addressed, that whatever law would apply to a white man would apply to a colored man as well. However, my point is that at the time, there were basically no state laws infringing on rights protected by the first eight amendments except as they related to slavery and color issues. Also, Stevens is addressing the House and attempting to secure passage of the amendment. He has slightly different political concerns than Stevens who can afford to be more candid in the Senate (and was). As such, it is understandable that many in Congress would see no significant difference between incorporating the Bill of Rights against the States and applying the Civil Rights Act against the States.

We have the explicit statement of several members of Congress that the bill is meant to incorporate the first eight amendments against the States. Yet we do not have a single comment from any member of Congress explicitly refuting or asking for clarification on this point you consider radical? That doesn't strike you as odd? They spend half a page discussing what the word "Abridged" means; but glossed right over the whole business about this will apply the first eight amendments?

[Tom Servo]

We have the explicit statement of several members of Congress that the bill is meant to incorporate the first eight amendments against the States. Yet we do not have a single comment from any member of Congress explicitly refuting or asking for clarification on this point you consider radical? That doesn't strike you as odd? They spend half a page discussing what the word "Abridged" means; but glossed right over the whole business about this will apply the first eight amendments?
Exactly. When I said, "there wasn't much discussion because there wasn't much to discuss," I meant that there wasn't much discussion because everyone knew the purpose and intent of the Amendment and didn't see a need to belabor the point.

Fairman's claim that Bingham was somehow pulling a fast one in regards to incorporation is a bit disengenuous considering that the drafting and ratification were regular front-page news (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1322323)in the New York Herald, New York Times and Philadelphia Inquirer at the time.

The legislature and general public were well aware of what was being drafted.

Congress rejected the term "civil rights and immunities" over concern that it might be construed to include the political right of suffrage

The qualifier "civil" was removed because Bingham wanted to imply the protection of pre-existing, natural political rights rather than "civil" rights, which are "granted."

Really, Berger had an axe to grind with the Warren Court, and he had an agenda before he even laid pen to paper. Broaden your source reading a bit.

[publius42]

I was just reading the law professors' brief, they call for overturning Slaughterhouse and its descendants and giving meaning to the privileges and immunities clause in incorporation law.

Will the court do that?

[Hugh Damright]

Howard states that suffrage should be extended to every single person

Some few wanted female suffrage, and a larger number wanted black suffrage. The majority wanted neither. They wanted black suffrage but only in the South. In fact, the 40th congress was elected on the "Chicago Platform" which meant this very thing. Here, I will quote the Chairman Wilson explaining that the term "civil rights and immunities" was removed to avoid any chance of it including suffrage:

March 13, 1866 (pages 1366/1377 in the Globe)

re: Amendment to S. No. 61 "An Act to Protect all Persons in the United States in their Civil RIghts and Furnish the Means of their Vindication"

Mr. Wilson reported back from the Committee with amendments, the first of which struck out the text about "civil rights or immunities" ... Wilson said that some gentlemen were apprehensive that the words might give warrant for a latitudinarian construction not intended ... Mr. Hill asked what became of the promised amendment saying that nothing in the bill should be construed to interfere with the right of suffrage in the States ... Mr. Wilson said that it was unnecessary, and explained:

"Some members of the House thought, in the general words of the first section relation to civil rights, it might be held by the courts that the right of suffrage was included in those rights. To obviate that difficulty and the difficulty growing out of any other construction beyond the specific rights named in the section, our amendment strikes out all of those general terms and leaves the bill with the rights specified in the section. Therefore the amendment referred to by the gentleman is unnecessary."

What is the point of quoting this or that radical saying they wanted to address suffrage with the 14th when clearly the 14th did not address suffrage?


We have the explicit statement of several members of Congress that the bill is meant to incorporate the first eight amendments against the States. Yet we do not have a single comment from any member of Congress explicitly refutingBy "several members" do you mean Bingham and Howard? And Wilson? If you want the exercise, you can make a list of which members of the 39th Congress said that the P&I should include the USBOR, and I can make a list of which members said that the intent was to cover the same ground as the Civil Rights Act, and we can which list is bigger. But I think we know the answer.

So Hugh, you are saying that making the USBOR is such a radical concept that nobody but a few radicals intended it, yet when the bill is introduced to the Senate with exactly that intent, everybody ignores that part?Yes, I think Howard's comment was ignored. I think it was understood that the intent of the bill was not to make the USBOR binding against the states.

Frankly, I am not following this reasoning ... to question if there were any laws which violated the first eight amendments except as they relate to discrimination, and to conclude that there was a need to make the USBOR binding against the States ... and to question if there was discussion over making the USBOR binding against the States, and construe that to be evidence that such was the intent. The idea seems to be that if it wasn't needed and wasn't discussed, then that proves it was intended. From what little I know about Michael Kent Curtis, this sounds like his results oriented activist "reasoning".

[Tom Servo]

Yes, I think Howard's comment was ignored. I think it was understood that the intent of the bill was not to make the USBOR binding against the states.
"I think, I think, I think..." Did you read, or even skim, Hardy's paper? It's in post #72. Howard's comment wasn't "casually tucked away" as Berger claimed; it was front-page news across the country.

You really need to read something other than Fairman and Berger. It's like approaching the gun-control debate citing only VPC press releases for data.

[Hugh Damright]

Howard's comment wasn't "casually tucked away" as Berger claimed; it was front-page news across the country.

I think the idea here is that since we can't show that Congress intended to make the USBOR binding against the States, let's try to show that it was the popular idea outside of Congress, as if newspaper headlines prove the popular sentiment, and as if the popular sentiment has any bearing on the matter.


You really need to read something other than Fairman and Berger
How many times must I say that I base my views upon the congressional debates over the reconstruction amendments? I have not even read Fairman, I have only read a little bit of Berger, I tend to use his book as an index to help me figure out what days different things were discussed in Congress, so that I might then turn to the congressional record.

I have this notion on my mind, please correct me where I'm wrong, that it was Michael Kent Curtis who saw that Johnson made some objection to the phrase "privileges and immunities" in the 14th, he then went looking for some way to construe this to his purpose, and when he found that Johnson did not object to the phrase "civil rights or immunities" in the Civil Rights Act, he concluded that Johnson must have thought that the phrase "civil rights and immunities" was acceptable and the phrase "privileges and immunities" was unacceptable ... the conclusion being that the term "privileges and immunities" was broader than "civil rights and immunities". And he said that Berger was biased for leaving out this great truth. Is that where y'all get this stuff from? The "latest activist icon" Michael Kent Curtis? I can't believe anything so obviously false and shoddy would be treated as respectable, and I kind of hope I am completely confused on this.

It seemed easy enough for me me to find how Curtis may be the biased one. It seems reasonable that Johnson didn't object to the wording of the Civil Rights Act because he was in objection to the entire act as being unconstitutional. Now really, isn't it a biased shortcut through the facts to say that if Johnson didn't object to the phrase "civil rights and immunities" in the civil rights bill, then he accepted the term? It seems like a mirage, like seeing water in the desert ... something somebody sees because they wish so hard that it was there. In other words, it's nothing but desire/bias.

Let's not be sidetracked by untenable radical activist misconstructions. The 39th Congress objected to the term "civil rights and immunities". I have shown the chairman of the committee introducing the amendment striking the term, and explaining that one purpose was to exclude suffrage. Someone asked about a promised amendment to exclude suffrage, and the response was that eliminating the term "civil rights and immunities" accomplished that same goal. Congress passed this amendment striking the term "civil rights and immunities" in the Civil Rights Act, and then they accepted the term "privileges and immunities" in the 14th. Honestly, if there is any implication to be made, I think it is that they understood the term "privileges and immunities" to have been more narrow in scope than the term "civil rights and immunities", or that they thought the term "civil rights and immunities" was vague and open to misconstructions whereas the term "privileges and immunities" had a known meaning.

What I remember is that the intent was not just to leave suffrage out of it but to leave political rights out of it. I suppose I need to support that better, but it takes time to locate all of these debates. But let me say again, this began because someone asserted that "privileges" means "political rights", and I said that the term "civil rights" was changed to "privileges" to exclude political rights. I think I have supported my assertion much better than the other person supported his. Where is the evidence that the intent was for "privileges" to mean "political rights"?

[Tom Servo]

I think I have supported my assertion much better than the other person supported his. Where is the evidence that the intent was for "privileges" to mean "political rights"?
The dictionary (http://legal-dictionary.thefreedictionary.com/Political+rights) would be a good start:

Right: "In an abstract sense, justice, ethical correctness, or harmony with the rules of law or the principles of morals. In a concrete legal sense, a power, privilege, demand, or claim possessed by a particular person by virtue of law."

Right (Entitlement), noun: authority, authorization, due, fair claim, heritage, inalienable interest, ius, iusta, just claim, justification, legal claim, legal power, legal title, power, prerogative, privilege.

adj. or civ·il-rights (sĭv'əl-rīts')
Of or relating to such rights or privileges: civil rights legislation.

[Hugh Damright]

Something isn't adding up here ... do y'all mean to say that the 14th regards some political rights but not suffrage, or do you mean to say that it regards political rights including suffrage? I think it is clear beyond doubt that suffrage was excluded i.e. that laws saying blacks could not vote did not violate the 14th.

[Hugh Damright]

The dictionary would be a good start:
This seems odd ... why is it that, when questioning the meaning of the word "privileges", we would refer to the definition of the word "rights", rather than to the definition of the word in question? I notice that, if we use the dictionary link provided and refer to the definition of "privilege", it says "it is not a right".

[Tom Servo]

Merriam Webster in the house y'all:

priv·i·lege
Pronunciation: \ˈpriv-lij, ˈpri-və-\
Function: noun
Etymology: Middle English, from Anglo-French, from Latin privilegium law for or against a private person, from privus private + leg-, lex law

Date: 12th century: a right or immunity granted as a peculiar benefit, advantage, or favor ; especially : such a right or immunity attached specifically to a position or an office [in this case, the position of American citizenship]

I mean, it's not rocket science. I know--I've got friends who are rocket scientists. That stuff's hard. This stuff? Pretty self-explanatory.

Heck, I was a Humanities guy, and I get it.

[Gary L. Griffiths]

Jeez, Hugh and Tom, both of you take a chill pill!

Maybe someone should answer Publius' question about whether the court may overturn Slaughterhouse.

I 4 1 am far more interested in what effect the Court's decision will have on the 14th Amendment and state/local gun control laws than what the drafters of the amendment were thinking, whether they were sober, or misused the word "immunity.":rolleyes:

[Al Norris]

Gary, the kind of stuff you are getting from Hugh, Tom, Bartholomew and myself are exactly what you are going to be reading in all the amici briefs that will be coming in over this case.

I have a feeling that on the one side, will be the strange bedfellows of gun-rights, coupled with all manner of classical liberal thinking, while on Chicago's side, will be the statists.

To answer your question, and that of publius42, I think there is a real chance of the Court reinvigorating the Privileges or Immunities clause of the 14th amendment. Breyer is the only Justice that I really worry about.

[maestro pistolero]

I love that the gun rights movement will be the catalyst for the largest expansion of the application of the BOR since the civil war. It will be rich irony to those who think gun owners are stereotypical, bigoted red-necks.

[Tom Servo]

Jeez, Hugh and Tom, both of you take a chill pill!
Sorry if my dry sense of humor wasn't coming through there. My debate with Hugh has certainly put me to work and got me thinking, but we're just not seeing eye-to-eye on this. Pillow fight at dawn to settle things, perhaps?

Maybe someone should answer Publius' question about whether the court may overturn Slaughterhouse.
They will likely feel obliged to--that's the only sane outcome. If they don't, it'll take some very creative wrangling to read around it.

I 4 1 am far more interested in what effect the Court's decision will have on the 14th Amendment and state/local gun control laws than what the drafters of the amendment were thinking, whether they were sober, or misused the word "immunity."
They were sober men and true, and attentive to their duty. As for the effects, we'll have to wait and see. Individual restrictions will have to be weighed in the courts, and the process will take years, if not decades. As with Heller, don't expect anything to change overnight.

If you have time, download the oral arguments from the 7th Circuit hearings. Judge Easterbrook is charming and witty as always. Chicago counsel Solomon mentioned that there will likely have to be a new standard of review and scrutiny if P&I incorporation becomes the standard. Easterbrook admonished Solomon for falling back on "tired slogans" about social policy, but he warned that unfettered incorporation would mean that even Chicago's system for issuing parking tickets would come under 7th Amendment scrutiny.

Obviously, there will have to be some middle ground, but the net result will be a standard of very strict scrutiny, meaning it'll be very hard to justify present or future infringements.

Gang, we're getting there, and fast.

I have a feeling that on the one side, will be the strange bedfellows of gun-rights, coupled with all manner of classical liberal thinking while on Chicago's side, will be the statists.
There won't be many of the latter. Notice the relative dearth of hysteria we're hearing on this compared to the caterwauling we heard regarding Heller. The Left can fight a gun case, but they'll have a harder time fighting a civil rights case, especially one that stands to help some of their agendas as well.

Remember, for the cost of one gun rights lawsuit, you get guarantees of the rights to jury trial, grand jury, and protection from excessive fines and bails at no extra charge! :)

Some will claim to hold their noses at "the gun part," but will come aboard, while others will jump in feet first. We'll have a few "academics" quoting Fairman and Berger (and do please research those!), but they'll be on the fringes of what is one heck of a consensus-building debate.

This is what we call a serious, historical reaching-across-the-divide moment. We could gain a whole new swath of shooters and allies from some truly unexpected quarters.

And when our new friends come around, by all means, be accepting, be kind, and be patient!

[Bartholomew Roberts]

What is the point of quoting this or that radical saying they wanted to address suffrage with the 14th when clearly the 14th did not address suffrage?

Hugh, I am a bit confused here. You quote me speeches from 14th Amendment being introduced in the House on May 8th and reading the actual debates from the 39th Congress (not someone else's summary of them), the discussion on May 8th is overwhelmingly about how much they are going to broaden suffrage (along with complaints about the ratification process).

When the bill is introduced into the Senate by Howard, the very same debate reoccurs. The underlying theme in all of this is that everyone openly accepts that the 14th Amendment is going to broaden suffrage. The only question is how much.

Are we reading different debates here?

If you want the exercise, you can make a list of which members of the 39th Congress said that the P&I should include the USBOR, and I can make a list of which members said that the intent was to cover the same ground as the Civil Rights Act, and we can which list is bigger.

Once again Hugh, was there any example of that time of ANY state passing ANY law that limited the rights of white men to less than what they would have received under the Bill of Rights?

If not, then the stated purpose of the Civil Rights Act is to "This amendment supplies that defect and allows Congress to correct the unjust legislation of the States, so far that the law that operates upon one man, shall operate equally upon all."

Using basic logic, it seems you could say the Civil Rights Act and the 14th Amendment cover the same ground. The two statements are not necessarily exclusive. After all, if it wasn't common (or even fathomable) that states would restrict the rights of voting citizens under the Bill of Rights because there was no 14th Amendment, then what exactly are the distinctions between the two bills?

So from my perspective, your exercise is a pointless one since it offers no proof in support of your theory. Especially since the clause being debated, the first clause, is so rarely remarked upon in such comments. And when it is remarked upon, it is usually along the lines of "No man in any State could object to the fairness of this clause" or some similar idea.

Yes, I think Howard's comment was ignored.

So the guy introducing the bill in the Senate makes a statement that the bill will cause what you argue is a radical concept supported by few Senators. And the result is NOTHING? Nobody asks him to clarify that comment or asks him to explain what he means by the eight amendment thing? Instead the first comment from Johnson asking him how broadly he intends the amendment to extend suffrage and whether women will be included?

That strikes me as a strange result in the Senate.

From what little I know about Michael Kent Curtis, this sounds like his results oriented activist "reasoning".

On the contrary, I have several Representatives and Speakers stating that this is the EXPLICIT purpose of the bill. Your only counter is that other people said the amendment covers the same ground as the Civil Rights Act. I have already explained (several times now) why I do not consider that as a contrary statement. Perhaps if you explained why you think it is was obviously a contrary statement I would understand your position better; because frankly, I don't understand it at all right now. To me you look like a guy standing neck-deep in the ocean arguing that water is quite dry. So obviously we aren't communicating our ideas well.

[publius42]

Question about Nordyke: will the 9th in that case be the first to apply (and put a spin on) McDonald once it is decided by the Supreme Court?

[Hugh Damright]

If we're going to argue about the intended scope of the 14th Amendment, and assert that it embraces political rights, I think we should at least know that black suffrage was excluded i.e. laws which said that negroes could not vote did not violate the 14th. It may seem that the 14th should have included black suffrage, we may notice that some members of Congress expressed a desire for black suffrage and conclude that was the intent, and we may find various textual constructions which lead to the 14th including black suffrage ... but anyone who has seriously studied the question must realize that black suffrage was outside of the intended scope of the 14th Amendment. I consider it to be such an obvious fact that I don't feel much need to support it, but to help end any confusion, I will point out that when Howard made his speech about how the 14th should incorporate the USBOR, he also said that suffrage was excluded:

"It is very true, and I am sorry to be obliged to acknowledge it, that this section of the amendment does not recognize the authority of the United States over the question of suffrage in the several States at all; nor does it recognize, much less secure, the right of suffrage to the colored race ... The second section leaves the right to regulate the elective franchise still with the States, and does not meddle with that right."

Also, I have shown that the term "civil rights and immunities" was rejected over concern that it might bear a construction where the North was forcing black suffrage upon their own States. And I have mentioned that the 40th Congress was elected on the "Chicago Platform" which meant that negro suffrage was to be forced on the South but not the North. I will add that the 14th Amendment recognized suffrage to be an intrastate affair by saying that if a State chose to exercise its right to deny negro suffrage then its representation would be reduced accordingly. And, of course, even the radical reconstruction Congress accepted that the 14th could not be stretched to cover negro suffrage but rather another amendment was needed. Negro suffrage was created with the 15th Amendment, not the 14th, and I think if we're going to argue about the scope of the 14th then we should know these things.

[raimius]

Hugh,
What connection are you drawing? I don't see how voting rights connects to anything having to do with firearms, in your post.

[Bartholomew Roberts]

Also, I have shown that the term "civil rights and immunities" was rejected over concern that it might bear a construction where the North was forcing black suffrage upon their own States.

I guess I missed where you "showed" that. So Hugh, you are saying that Congress rejected the "civil rights and immunities clause" in the 14th Amendment which was ratified on July 9, 1868 because they didn't want blacks to vote and then turned around and ratified the 15th Amendment that granted such suffrage on February 3, 1870? Tell me what happened in those 18 months that so dramatically changed that? More Southern states rejoining the Union? You don't happen to have strong opinions on the Uniform Commercial Code and UCC 1-207 also do you?

On a more related point to our discussion: if it wasn't common (or even fathomable) that states would restrict the rights of voting citizens under the Bill of Rights because there was no 14th Amendment, then what exactly are the distinctions between the two bills?

[Hugh Damright]

What connection are you drawing? I don't see how voting rights connects to anything having to do with firearms, in your post.
In discussing incorporation of the RKBA and the scope of the 14th, it was asserted that the term "privileges" was well understood to mean "political rights". I disagreed, but someone seemed to insist that political rights were within the scope of the 14th. In hopes of making some sense out of the assertion, I asked if they meant to say that political rights other than suffrage were within the scope of the 14th. Then it was asserted that the 14th was intended to incorporate suffrage! I think if we are going to make assertions about the intended scope of the 14th Amendment then we should know a little something about it, at least enough to know that suffrage was excluded.

I was also seeing an analogy between the assumption that the 14th incorporated political rights such as suffrage and the assumption that the 14th incorporated the USBOR ... we might feel that black suffrage should have been within the scope of the 14th, we might be able to quote a couple of radicals saying they desired negro suffrage, we may find ways to analyze the text of the 14th such that negro suffrage was included ... but the evidence to the contrary is completely overwhelming.

BTW, regarding this assertion that it was well understood that "privileges and immunities" included political rights, it occurred to me that Senator Trumbull from Illinois, who was a member of the 39th Congress and engaged in the debates over the 14th Amendment, later (on April 11, 1871) said:

"The "privileges and immunities" referred to in the Constitution are of a civil character, applying to civil rights, and not political rights, and were never so understood."

[raimius]

Which begs the question, how did they define each set of rights?
Where would self-defense fall?
Where would the right to arms fall?

What was their basis for their definition?

[Tom Servo]

Which begs the question, how did they define each set of rights?
Where would self-defense fall?
Where would the right to arms fall?
Civil rights generally encompass "human" rights, such as freedom of speech, assembly, worship, protection from involuntary servitude, and due process.

Political rights generally protect the right to participate in the political process and hold office. Civil rights were generally considered to apply to people of both genders and all races, while political rights generally belonged to "elites," like landowning white males.

The distinction was largely blurred out during the 20th century. You could say that the 14th Amendment protected civil rights, while the 15th was tailored to protect suffrage, which was a political right.

Of course, voting could easily be considered a civil right as well. Thus the overlap.

RKBA would be considered a civil right. It was a pre-existing, basic human liberty when the BoR was drafted, and even before Reconstruction, women were considered eligible to exercise it. In fact, some of the impetus for the drafting of the 14th Amendment was the confiscation of blacks' firearms in Alabama and Mississippi.

Sidney Clarke, speaking at the 1st Session:

In this respect Alabama is superior to Mississippi, whose rebel militia, upon the seizure of the arms of black Union soldiers, approriated the same to their own use.

Sir, I find in the Constitution of the United States an article which declares that "the right of the people to keep and bear arms shall not be infringed." For myself, I shall insist that the reconstructed rebels of Mississippi respect the Constitution in their local laws, before I will even consider their claims to representation in Congress.

But Alabama is not alone. The "reconstructed" adjutant general of Mississippi, a State which passed laws to prevent persons of color--American citizens--from owning, leasing, or renting real estate, issued an order under date of December 13, 1865, for the disarming the freedment, in which occurs the following sentence:

"In the execution of this order, you will abstain from all unnecessary violence; but should you meet with any resistance, you will employ sufficient force to accomplish your object."

One last thing. Though suffrage was not within the scope of the 14th Amendment, claims for women's suffrage (http://en.wikipedia.org/wiki/Minor_v._Happersett) would rest upon the guarantees of the 14th Amendment.

[Bartholomew Roberts]

Quote:
In discussing incorporation of the RKBA and the scope of the 14th, it was asserted that the term "privileges" was well understood to mean "political rights". I disagreed, but someone seemed to insist that political rights were within the scope of the 14th. In hopes of making some sense out of the assertion, I asked if they meant to say that political rights other than suffrage were within the scope of the 14th. Then it was asserted that the 14th was intended to incorporate suffrage! I think if we are going to make assertions about the intended scope of the 14th Amendment then we should know a little something about it, at least enough to know that suffrage was excluded.

Hugh, you claimed that "civil rights and immunities" was struck because of concerns that it might be construed to grant political rights such as suffrage. I questioned this claim since the debates surrounding the introduction of the House and Senate make it clear that Congress intends to broaden suffrage anyway - and does in fact do so a mere 18 months after the 14th was ratified. So it makes no sense for the phrase to be struck for the reasons you claim when they clearly intended to broaden suffrage in that Congress.

I did not assert the the 14th was intended to incorporate suffrage and I feel you have misrepresented/misunderstood my point.

BTW, regarding this assertion that it was well understood that "privileges and immunities" included political rights, it occurred to me that Senator Trumbull from Illinois, who was a member of the 39th Congress and
engaged in the debates over the 14th Amendment, later (on April 11, 1871) said:

Please give the post re: Dred Scott a read. The Supreme Court used EXACTLY the term "privileges and immunities" to describe "the right to keep and carry arms." Given the widespread understanding that one of the purposes of the 14th is to overturn Dred Scott, how do you reconcile that language with your interpretation?

"The "privileges and immunities" referred to in the Constitution are of a civil character, applying to civil rights, and not political rights, and were never so understood."

[Hugh Damright]

Where would the right to arms fall?

In fact, some of the impetus for the drafting of the 14th Amendment was the confiscation of blacks' firearms in Alabama and Mississippi.

It seems clear to me that the 14th Amendment was intended to address racially discriminatory gun laws in Alabama and Mississippi. But when I question which part of the amendment was intended to address these black codes, and how we get from there to a federal power to strike down nondiscriminatory gun laws, the answers are not as clear.

Before the 14th Amendment there was a Freedmens Bureau Bill which was amended to include the RKBA:

"... civil rights ... including the right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to have full and equal benefit of all laws and proceedings for the security of person and estate, including the constitutional right of bearing arms"

That seems clear enough ... and then came the 1866 Civil Rights Act which said:

" .. right ... to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and covery real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property"

That still seems pretty clear to me, that the intent was to address discriminatory gun laws with the "full and equal benefit" clause, and that the object is a right to full and equal benefit of gun laws ... and then there's the 14th Amendment:

"... privileges and immunities ... due process ... equal protection of the laws"

Now the clarity is lost ... was the intent still to address discriminatory gun laws with the equal protection clause? Some would construe the "due process" clause to create a federal judicial power to review State gun laws. Others would construe the "privileges and immunities" clause to the same end. My impression, based upon my reading of the congressional debates, is that the 14th was intended to cover the same ground as the Civil Rights Act, such that those discriminatory gun laws in Alabama and Mississippi were still addressed by the equal protection clause.

The 14th's equal protection clause says "equal protection of the laws", which seems to mean equal protection of all laws ... but, as we have seen, laws which said that whites could vote and blacks could not vote did not violate this clause. It seems clear to me, despite the wording of the clause, that the intent was to provide equal protection of some laws and not others. So how are we to know what the intended scope was? What makes sense to me is to refer to the Civil Rights Act, where we can see it spelled out that the intent was to provide equal benefit of laws regarding the security of person and property.

Likewise, it seems clear to me that the intended scope of the "privileges and immunities" clause is limited, and for example it does not include political rights. Although I am aware of definitions of "privileges and immunities" which include political rights, my reading of the congressional debates leads me to think that the 39th Congress intended to exclude political rights. My impression is that Congress understood the privileges and immunities to be those enumerated in the Civil Rights Act.

Also, I think it is important that Congress understood the privileges and immunities to be those in Article IV, Section 2:

"The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

Some radicals in the 39th Congress (e.g. Bingham) construed this clause to mean that the States are prohibited from violating certain rights of their citizens, including those enumerated in the first eight amendments. But it seems clear to me that this is an untenable radical construction. As Representative Nicholson from Delaware said (on Apil 7, 1866):

"The employment here, in the first clause of this amendment, of the identical language contain in article four, section two, of the Constitution, seems like an atttempt to force upon it a construction that has always been denied by judicial authorities and commentators upon the Constitution"

[edit] BTW, if I don't seem to be responding to certain posts, it is likely because my ignore list prevents me from seeing them.

[LuckyStrike]

I hate to look like a stupid 3rd grader that fell asleep during class right now but can someone explain to me what this Chicago case is all about? In a nutshell

I have no idea what you guys have been arguing about for the last three pages, but I am very curious as to what this current lawsuit/case is all about and what changes will be taking place if this passes?

[Tom Servo]

can someone explain to me what this Chicago case is all about? In a nutshell
It's an awfully big chestnut.

Jim March has a good summation here (http://thehighroad.us/showpost.php?p=5177874&postcount=17).

I posted a list of reading materials here (http://thehighroad.us/showpost.php?p=5180909&postcount=18). In particular, check out Akhil Amar's The Bill of Rights (http://search.barnesandnoble.com/The-Bill-of-Rights/Akhil-Reed-Amar/e/9780300082777/?itm=2&USRI=akhil+amar+bill+of+rights).

The Heller decision acknowledged that the 2nd Amendment did guarantee an individual right to firearms ownership. However, Washington DC is an enclave of the federal government, and the Court was not asked to rule whether or not the protections of the 2nd Amendment applied against the states.

We're seeking to have that question answered: is it constitutional for states to infringe on certain rights while the Federal government cannot? The 14th Amendment says no.

Unfortunately, the 14th Amendment was largely whittled away by the same Court that made the decision that led to the Civil War, which led to the drafting of the 14th Amendment (hey, it's late. That sentence is just fine in Latin :))

Hit Wikipedia and look up the Slaughterhouse Cases and United States v Cruikshank.

We expect the Supreme Court to apply the protections of the 2A against the states. In doing so, they will have to revisit (and likely, overturn) those cases under which they originally undermined the 14th Amendment. This seems extremely likely.

Anyhow, get to reading! The drafting of the 14th Amendment makes for a fascinating story.

[Bartholomew Roberts]

Some radicals in the 39th Congress (e.g. Bingham) construed this clause to mean that the States are prohibited from violating certain rights of their citizens, including those enumerated in the first eight amendments. But it seems clear to me that this is an untenable radical construction. As Representative Nicholson from Delaware said (on Apil 7, 1866):

"The employment here, in the first clause of this amendment, of the identical language contain in article four, section two, of the Constitution, seems like an atttempt to force upon it a construction that has always been denied by judicial authorities and commentators upon the Constitution"

I just looked at the Congressional Globe for the 39th Congress for the entire day of April 7, 1866 (pages 1820-1838 or so of The Congressional Globe) and was unable to find the quote from Representative Nicholson. It is possible I missed it in the record, given the amount of information covered by the House of Representatives in that particular Saturday session; perhaps if you had a more specific page reference?

In any case, it appears that Rep. Nicholson agreed with the construction Bingham suggested based on his comments.

I did find this discussion regarding "privileges and immunities" from Rep. Lawrence in a six page dissertation on civil rights given as a House speech.

The Constitution does not define what these privileges and immunities are; but all the privileges and immunities are of two kinds, to wit, those which I have shown to be inherent in every citizen of the United States and such others as may be conferred by local law and pertain only to the citizen of the State.

But conceding, as the courts have held, that the privileges and immunities referred to in the Constitution are such as are fundamental civil rights, not political rights nor those dependent on local law Page 1836 of the Congressional Globe - 39th Congress (http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=071/llcg071.db&recNum=877)

[publius42]

I have no idea what you guys have been arguing about for the last three pages

Really? These discussions between Hugh and Bartholomew seem so clear and simple to most people!;)

[Bartholomew Roberts]

Really? These discussions between Hugh and Bartholomew seem so clear and simple to most people!

OK, quick background:

For a long time, the Courts (Barron vs. Baltimore) had held that the Constitution was only a restraint on the FEDERAL government. The States were free to do whatever they liked within the constraints of their own Constitutions. However, as a practical matter, I can’t find any example of the States attempting to restrain the rights of citizens under the first eight amendments to the Bill of Rights.

However, blacks were regularly denied the protections of the Constitution by state laws. The 14th Amendment was introduced to overturn Dred Scott and make sure that all citizens were treated equally by the law regardless of race. However, the question is “How did it intend to do this?”

The bill was introduced in the Senate by Howard as “incorporating the first eight amendments” and the stated purpose of one of the bill’s primary drafters (Bingham) was to allow the federal government to step in and enforce the Bill of Rights against the States. However in a decision called “the Slaughterhouse Cases” the Supreme Court ruled that the “privileges and immunities” protected by the 14th were not the fundamental rights outlined in the Bill of Rights.

The majority position among legal scholars these days is that the Court ignored the plain intent of the 14th Amendment to derail the amendment and re-assert some measure of Barron vs. Baltimore. However some academics* have argued that the 14th Amendment did NOT intend to incorporate the Bill of Rights and that the Slaughterhouse Court was essentially correct. The controversy was never really resolved since later Supreme Courts invented the doctrine of selective incorporation through the due process clause of the 14th Amendment to apply the Bill of Rights to the States without explicitly overruling Slaughterhouse (the Supreme Court is very reluctant to reverse itself; but does occasionally undermine previous precedent or narrow it to the degree that it is practically overruled).

Why is this important to RKBA? Currently almost all of the Bill of Rights has been incorporated against the States through the doctrine of selective incorporation. One exception to this is the Second Amendment – and that is what McDonald is about. Gun rights proponents have asked the Court to not only apply a due process selective incorporation analysis – they have also asked them to explicitly overrule Slaughterhouse. This gives us two separate ways to win at the Supreme Court level.

Tom and I are taking the position that the clear intent of the 14th Amendment was to incorporate the Bill of Rights against the States. Hugh is taking the more controversial** minority position that the 14th Amendment was only intended to apply the law equally regardless of color. At the time the 14th Amendment was passed, the distinction would have been such a minor one that you could say they were saying the exact same thing since practically no state infringed on the rights listed in the Bill of Rights (except against blacks and non-white races specifically). However, now it is a big distinction. If the 14th was intended to allow the Feds to apply the Bill of Rights to the states, then the Second is automatically applied against the States. If the Feds only intended that any law the States passed was enforced equally regardless of color; but still wished to allow States to restrict the Bill of Rights, then we have to win on the selective incorporation through due process argument in order to score a victory in McDonald.

Realistically, overturning Slaughterhouse would not only apply the Bill of Rights to the states but other implied rights found in the Constitution as well. From a legal perspective, it would change the foundation of a lot of current Constitutional law and would certainly have broader implications than just the Second Amendment. For that reason, it might be an attractive option for liberal Justices on the Court who would otherwise be disinclined to apply the Second to the States. However, it also makes it a long shot option.

* Academics , particularly legal scholars, have to “publish or perish.” One popular way to make a name for yourself is to tackle rarely examined or obscure topics. Another way is to challenge the dominant majority opinion among legal scholars. For example, Sanford Levinson, author of The Embarrassing Second Amendment, is not actually a big supporter of RKBA and is fairly liberal; but the Second Amendment was mostly overlooked by academia at the time. By taking a contrary position in an obscure area of law, he generated a lot of interest in his article.

** Hugh’s position is controversial because other than a minority of legal scholars/academics, the idea that the 14th was never intended to incorporate the Bill of Rights in any fashion is very popular among various white supremacist/sovereign citizen groups. So it tends to be controversial by association.

[jontz]

Hey Tom,

I posted a list of reading materials here.

Your link is the same link as you gave for Jim's summary, in case you want to correct it.

[Tennessee Gentleman]

One exception to this is the Second Amendment – and that is what McDonald is about.

Is that the only exception? I thought some other parts of the BoR were not as well. Grand Juries and Quartering of Soldiers maybe?

[Tom Servo]

Hey Tom,
Your link is the same link as you gave for Jim's summary, in case you want to correct it.
Sorry! Correctified.

Is that the only exception? I thought some other parts of the BoR were not as well. Grand Juries and Quartering of Soldiers maybe?
IIRC, the 3rd Amendment has been incorporated. The right to a Grand Jury remains unincorporated. So do protections against excessive fines and bail.

[Hugh Damright]

you are saying that Congress rejected the "civil rights and immunities clause" in the 14th Amendment ... because they didn't want blacks to vote and then turned around and ratified the 15th Amendment that granted such suffrage ... what happened in those 18 months that so dramatically changed that? More Southern states rejoining the Union?
Yes, I think that was the biggest factor, that the South was regaining its representation. The yankees said that they would either have to keep the South under permanent military rule or else create a loyal black vote. They also calculated that a black vote might give the Northern Party a few Northern States. Some said that the Northern Party had grown too radical for the white race. Their plan worked, with Grant winning the Presidency only because of the black vote. So what happened was that the North swallowed the "bitter pill" of negro suffrage to keep their party in power. It got to where it wasn't a question of whether or not they wanted negro suffrage, they needed it to stay in power. Because the South was regaining its representation, and because the Northern Party had grown too radical for the white race.

Please give the post re: Dred Scott a read. The Supreme Court used EXACTLY the term "privileges and immunities" to describe "the right to keep and carry arms." Given the widespread understanding that one of the purposes of the 14th is to overturn Dred Scott, how do you reconcile that language with your interpretation?
The intent was to "overturn Dred Scott" or rather to amend the US Constitution to make negroes into citizens. It does not follow that the intent was to incorporate Taney's dicta regarding privileges and immunities. I am not aware that even one person in the 39th Congress said that he understood the term "privileges and immunities" to have been chosen with the intent of incorporating Taney's dicta regarding the RKBA. I have already said that I consider this to be such an obviously "results oriented" approach that it leaves me feeling uncomfortable. The term "privileges and immunities" was borrowed from Article IV, Section 2, not from Taney's dicta.

I just looked at the Congressional Globe for the 39th Congress for the entire day of April 7, 1866 (pages 1820-1838 or so of The Congressional Globe) and was unable to find the quote from Representative Nicholson.
Sorry, my reference is confusing ... it was not April 7th, it was April 21st (page 2080, middle of third column).

[Bartholomew Roberts]

Is that the only exception? I thought some other parts of the BoR were not as well. Grand Juries and Quartering of Soldiers maybe?

No, it is not the only exception. It is one of the few exceptions remaining.

Because the South was regaining its representation, and because the Northern Party had grown too radical for the white race.

That is the thing though - this debate had started LONG before the 14th Amendment was ratified. As I noted earlier, there is a general consensus during the opening debates on the 14th that suffrage is going to be granted to blacks. So I do not see how there can be that concern.

I am not aware that even one person in the 39th Congress said that he understood the term "privileges and immunities" to have been chosen with the intent of incorporating Taney's dicta regarding the RKBA

I am also not aware of any explicit statement that the term "privileges and immunities" was selected as a specific result of Taney's dicta; however as the debates show, the 14th was clearly a response to Dred Scott and concern about blacks being disarmed was also a part of the debate over the 14th.

We do have Rep. Lawrence's proclamation that the term "privileges and immunities" is meant to encompass fundamental civil rights. Reading all the various commentary together, there seems to be a general understanding that the 14th addresses fundamental civil rights (such as RKBA).

[Tom Servo]

Some said that the Northern Party had grown too radical for the white race. Their plan worked, with Grant winning the Presidency only because of the black vote.
I think I'd like to see a source for that, since it's not only untrue but impossible.

So what happened was that the North swallowed the "bitter pill" of negro suffrage to keep their party in power. It got to where it wasn't a question of whether or not they wanted negro suffrage, they needed it to stay in power. Because the South was regaining its representation, and because the Northern Party had grown too radical for the white race.
The phrase, "the Northern Party had grown too radical for the white race" intrigues me, especially since you use it twice, verbatim. Are you quoting from someone directly, and if so, whom?

President Grant was elected before the 15th Amendment passed. Even after its passage, things like poll taxes and literacy tests (http://www.crmvet.org/info/litques.htm) put voting out of the hands of many Freedmen. It would be 1965 before black suffrage was truly protected.

"Negro suffrage" didn't exist during Grant's campaign, and during his Presidency, it was just not pervasive enough to influence national policy one way or another.

[Hugh Damright]

I'd like to see a source for [the assertion that Grant won the Presidency because of the black vote], since it's not only untrue but impossible.
Well, there is a lot to take in when trying to comprehend the reconstruction era, and it's easy to get confused ...but I clearly remember reading that Grant won because of the black vote ... OK, I Googled "grant presidency and black/negro vote" and I see a book called The Reconstruction era: primary documents on events from 1865 to 1877 by Donna Lee, page 291:

"In the election of 1868, Ulysses S. Grant won ... but his 300,000 vote margin (out of 5.7 million votes cast) was solely because of the black vote in the South. In the next presidential election, the Republicans would need the votes of the blacks in the North and border states if the party was to stay in the White House."

But I've never read this book, I was just trying to find some easy reference.


The phrase, "the Northern Party had grown too radical for the white race" intrigues me, especially since you use it twice, verbatim. Are you quoting from someone directly, and if so, whom?
I am paraphrasing opposition statements in the congressional record.

[Hugh Damright]

I believe I entered this discussion to suggest certain uses of the words privileges/immunities/rights by using an example, that the SCOTUS might find the right to keep a gun in the home to be a "privilege or immunity" associated with US citizenship (i.e. "incorporate" it), and they might find the right to carry a concealed weapon to be a "privilege or immunity" associated with State citizenship (i.e. an intrastate affair beyond the reach of federal government). Someone raised another view, where there is only one kind of P&I, those associated with US citizenship, and that the very term "P&I" is a reference to fundamental rights which must be federally protected. And we explored what the term "privileges or immunities" means, and where it came from. But it seems like there is a rub here, two constitutional theories which can't both be right ... in one view there are P&I associated with US citizenship and P&I associated with State citizenship ... and in another view all P&I are associated with US citizenship.

[Bartholomew Roberts]

Just got a list of some good discussions of the same subject (the "privileges and immunities" clause and the 14th) from Dave Kopel's Newsletter.

'This Right is Not Allowed by Governments that are Afraid of the People': The Public Meaning of the Second Amendment When the Fourteenth Amendment was Ratified
Clayton E. Cramer, Nicholas James Johnson, and George A. Mocsary
Working Paper Series
October 19, 2009
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1491365


"If the Fourteenth Amendment is found to incorporate the Second Amendment against the states, what meaning of the Second Amendment does it include? This paper examines judicial and popular understandings of the Second Amendment in the period between ratification of the Bill of Rights and the Fourteenth Amendment." The text of the article may be downloaded from one of the sites linked to the Social Science Research Network's site.


Background Reading for Supreme Court's New 14th/2d Amendment Case
David Kopel
The Volokh Conspiracy
September 30, 2009
http://volokh.com/2009/09/30/background-reading-for-supreme-courts-new-14th2d-amendment-case/


Dave here offers a collection of material for those wishing to acquire background for the NRA v. Chicago case.

7th Circuit decision in NRA v. Chicago
Dave Kopel with Jon Caldara
Dave Kopel's Second Amendment Podcast
June 4, 2009
http://audio.ivoices.org/mp3/iipodcast307.mp3


Jon Caldara and Dave discuss the 7th Circuit decision in NRA v. Chicago.

The Privileges and Immunities Clause
Dave Kopel with Rob Natelson
Dave Kopel's Second Amendment Podcast
July 23, 2009
http://audio.ivoices.org/mp3/iipodcast319.mp3


Dave interviews University of Montana law professor Rob Natelson about Natelson's research on the original meaning of the Article IV provision: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." 46 minute podcast.

[RDak]

Hugh, if many States during Reconstruction, prohibited free speech, freedom of religion and/or the right to keep and bear arms, do you think the 14th Amendment would have been considered to apply to the States?

ETA: Or do you think there would never have been a 14th Amendment introduced if the only violations to the BOR's involved the 1st and 2nd Amendments?

[Yellowfin]

It was much simpler than that. The 14th Amendment nullification by the Slaughterhouse ruling was to protect the big city political corruption and power of places like NYC and New Orleans. There were too many big powerful political figures who simply couldn't be allowed to lose their clout. The P&I clause and equal protections was the core issue of the case as the big players in city government could pull strings and exert big power, no more no less. It's exactly why the sheriffs in SF, LA, and Santa Clara counties in California do as they do and NYPD, NJ, and Maryland's police system withhold CCW's for all but the rich and powerful. It's about power, control, and the ability to grant favors.

[Hugh Damright]

Hugh, if many States during Reconstruction, prohibited free speech, freedom of religion and/or the right to keep and bear arms, do you think the 14th Amendment would have been considered to apply to the States?

ETA: Or do you think there would never have been a 14th Amendment introduced if the only violations to the BOR's involved the 1st and 2nd Amendments?

The scenario is so far removed from my view of reality that I find it hard to respond. The 14th was needed for a number of reasons unrelated to the USBOR. For one thing, freeing the slaves made the Southern negroes count as a whole person rather than 3/5 of a person, which increased the South's representation, and yankees felt a need to deal with that. But as for the first section of the 14th, I think it has nothing to do with the USBOR, and everything to do with Article IV, Section 2.

What makes sense to me is to see the 14th as being intended to address black codes, and then to focus on the worst black codes - the States that had constitutions which said that no negroes were allowed. We can take the Southern black codes and the USBOR out of the picture, and we are still left with a most serious problem ... the 13th turned the slaves into freedmen, and the States had a right to exclude negroes. What if every State excluded negroes? Where were the negroes to go?

As an analogy, what if a State had a Constitution which said that no Virginians could enter? I think it is clear that such a law would violate Article IV, Section 2. The 14th was needed to make the freedmen/negroes into citizens, so that the federal jurisdiction delegated by Article IV, Section 2 would apply to them as well. But the 14th went further, because Article IV regarded a federal power to prevent a State from discriminating against citizens from other States, while the 14th regarded a federal power to prevent a State from discriminating amongst its own citizens.

I think that Article IV, Section 2 was needed to make the US partly national, such that a citizen of one State could go to another State and have, to some degree, the same rights that citizens of that State had. And the 14th Amendment was needed to make the freedmen into citizens, such that they could go to (or remain in) any State and have, to some degree, the same rights as other citizens there. I don't believe that either provision, Article IV or the 14th Amendment, was intended to make the USBOR binding against the States, it appears to me to be just the same old radical misconstruction, intended to make it appear constitutional for the federal government to stick its nose where it doesn't belong.

[Tom Servo]

it appears to me to be just the same old radical misconstruction, intended to make it appear constitutional for the federal government to stick its nose where it doesn't belong.
This is really the crux of the counterargument, but I think it's misplaced. When the Thune amendment was being heard, we heard liberals (of all people) screaming about how such a measure would trample the 10th Amendment.

There are those who believe that aspects of Reconstruction, including the 14th Amendment, also ran counter to the 10th. The phrase "States' Rights" often comes up. They're missing one essential point.

The 14th Amendment doesn't infringe on rights. States don't have rights--individuals do. The 14th was written to protect rights upon which no legitimate government, state or federal, can infringe.

This isn't to say that states should not be allowed to try their own approaches and address regional concerns; they simply may not compromise the fundamental rights of their citizens. That's what the 14th Amendment was meant to address.

[RDak]

I see Hugh. Thanks for the response.

I disagree in the sense that the 14th Amendment was written to prohibit the denial of fundamental rights even though that amendment may have been "triggered" by the ex-slave situation at the time.

[Al Norris]

I have not argued with Hugh, here, mostly because Bart and Tom are doing an excellent job, without my 2 cents being added. Hugh however, continues to blindly cling to a history and meaning that never was, and may confuse some who aren't as well read as others here.

Therefore, I offer the following commentary.

Art. IV Sec. 2 of the U.S. Constitution:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

The first clause merely guarantees that a citizen of one State, traveling to another State, will enjoy the same rights (Privileges and Immunities - see my post, #50 (http://thefiringline.com/forums/showpost.php?p=3722393&postcount=50) for a brief, but accurate synopsis) as the citizens of that other State.

The second clause, above, provided for extradition of criminals to the State where the crime was committed.

With the passage of the 13th amendment (slavery abolished), clause 3, above, was superseded and rendered null.

Because of a Supreme Court case in 1833, Barron v. Baltimore, it was held that the BOR had no affect upon the States. The BOR was only a prohibition upon the Federal Government. That's the way things stood for the next 35 years.

The 14th amendment (1868) changed all of that. And that is precisely the core of the current argument. The Court in Slaughter-House, 1873, either refused to abide by the new powers of the federal government to force the States to abide by the BOR, and/or it refused to acknowledge that Barron was overturned in a completely constitutional manner.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

Clause 1, Section 1 of the 14th amendment officially creates dual citizenship, much like the dual sovereignty of the States and the Central governments in the original constitution. Citizens are now both citizens of the State in which they reside, (but more importantly, for the purposes of the 14th) and citizens of the U.S., that is, the Federal Government.

Hughes arguments that U.S. citizenship existed before this is merely a de facto1 argument. the 14th makes it (U.S. Citizenship) de jure.2

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;

Clause 2 gives primacy to U.S. citizenship over State citizenship. It is this clause that overturns the decision of Barron and its progeny. The BOR (amendments 1 thru 8) is now in full force against the States.

However, it is this very clause, the the Majority in Slaughter-House rendered null.

All this and more must follow if the proposition of the plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever, in its discretion, any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects. And still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. The argument, we admit, is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when, in fact, it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people, the argument has a force that is irresistible in the absence of language which expresses such a purpose too clearly to admit of doubt.

We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.

With that statement in 1873, the Majority reads out of the amendment its chief purpose: To ensure that the Privileges or Immunities of all U.S. Citizens be fully recognized and protected by the States themselves.

Hugh Damright, like Justice Miller and the Majority, refuses to recognize the implicit fact that Federalism had changed.




1. de facto: existing in fact, whether by actual law or not.
2. de jure: existing in law.

[htjyang]

I guess I fall somewhere between Hugh Damright and his opposition. In my view, the Privileges or Immunities Clause incorporates federal privileges and immunities into the states, but not state privileges and immunities with each other.

[gc70]

While I agree with the sentiment expressed above in post #114, I am extremely troubled by the dissenting opinions in Slaughterhouse. The dissenting justices wrote eloquently about "privileges" and "immunities" but never stated that they embraced the rights enumerated in the US Constitution's Bill of Rights. IMHO, citing the Bill of Rights would have been a logical starting point for the dissenting justices, but that starting point is conspicuously absent from their writings.

My reading of the dissenting opinons points to an interpretation that the 14th amendment addressed equal protection under the laws of specific states.

What the clause in question [Article 4, Section 2, Clause 1] did for the protection of the citizens of one State against hostile and discriminating legislation of other States, the fourteenth amendment does for the protection of every citizen of the United States against hostile and discriminating legislation against him in favor of others, whether they reside in the same or in different States. If, under the fourth article of the Constitution, equality of privileges and immunities is secured between citizens of different States, under the fourteenth amendment, the same equality is secured between citizens of the United States.

Thus, Article 4 protected a citizen of Maryland from being treated differently from a citizen of Virginia under Virginia law, while the 14th Amendment protected citizens of Virginia from being treated differently from other citizens of Virgina under Virginia law. In short, the 14th extended Article 4 equal treatment on an intra-state basis.

[Hugh Damright]

In my view, the Privileges or Immunities Clause incorporates federal privileges and immunities into the states
I think that a significant number of people saw it that way, and that it is an accepted construction. It makes some sense to me, but I can't seem to ignore the many statements that (the first section of) the 14th equated with the Civil Rights Act. It just looks to me like, in the end, they rallied around the 14th as a way to make the Civil Rights Act part of the US Constitution so that the Southern States could not repeal it when they regained their representation.

Regardless, as Senator Trumbull said on that April 11th in 1872:

"you have not advanced one step in the argument unless you can define what the privileges and immunities of citizens of the United States are"

Trumbull went on to say that he understood the privileges and immunities to be those which the federal government was bound to protect, whether a citizen was in one of the united States or in a foreign State, and that this power existed before the 14th. A number of people seemed to say something similar, that the provision was there all along, as if the 14th left the Constitution where it found it. Bingham construed Article IV, Section 2 so as to make the USBOR binding upon the States and saw the the 14th as creating a power to enforce that existing provision. And Senator Poland from Vermont also said that the 14th's "privileges and immunities" clause secured nothing beyond what was originally intended by Article IV, Section 2 ... but I don't know what he meant when he said it.

The dissenting justices wrote eloquently about "privileges" and "immunities" but never stated that they embraced the rights enumerated in the US Constitution's Bill of Rights.
It seems to me that whenever the P&I were described, they had little if any resemblance to the USBOR. And it occurs to me that while activists like to quote Howard ad nauseum, he didn't actually say that the P&I included the USBOR, but quite the contrary, he said that to these P&I should be added the rights enumerated in the first eight amendments.

[Tom Servo]

It seems to me that whenever the P&I were described, they had little if any resemblance to the USBOR.
Hugh, if "Privileges or Immunities" are not the fundamental rights of citizens, then what are they?

Taney used "privileges" and "rights" interchangeably in Scott v. Sanford (and Waite would do the same in Cruikshank) when describing rights. The choice of the terms "privileges" and "immunities" by the drafters of the 14th Amendment was a deliberate response to this.

Even Charlie Easterbrook, who refused incorporation of the 2nd Amendment in the 9th circuit, believes this interpretation of the clause.

(He also hates Space 1999, but he and I will just have to agree to disagree on that one.)

[RDak]

Hugh, if "Privileges or Immunities" are not the fundamental rights of citizens, then what are they?

That's what I was attempting to ask Hugh in my previous post Tom. Maybe I should have just asked that direct question?

Al: Thanks for the info. in your post above! :)

[Al Norris]

One of the best places to begin to understand what was meant by the Art. IV Sec. 2 clause 1, would be to read the opinion of Corfield v. Coryell (6 Fed. Cas. 546, no. 3230 C.C.E.D.Pa. 1823). The opinion was authored by Justice Bushrod Washington.

Why would this be a good place to start?

Justice Washington had studied law under Justice James Wilson. He replaced Wilson on the Supreme Court in 1798. Washington had been a member of the Virginia ratifying convention. Washington voted in favor of the Constitution. Washington therefore, was one of the surviving members of the time the Constitution was written and his opinion in Corfield, which built upon several other State and lessor federal decision, is of great importance in understanding original meaning.

Justice Washington lived at the time of the writing of the Articles of Confederation. He knew that the Constitution was made "in order to form a more perfect union" than was possible under the Articles.

He was most aware of the Lockean principles of rights, or privileges and immunities, that all citizens held under a free government.

It remains one of the few judicial commentaries on the P&I clause that embraced those rights, both natural and political:
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. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.

The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised. 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."
You won't find any "right to travel" in the BOR. Why? Because it was such a fundamental right that no one thought it needed to be mentioned, except by inference, in the P&I clause.

You won't find a right to protect your property, for the same reasons. Under Lockean principles, the basic rights were Life, Liberty and Property. Self-defense was considered an act of property rights. You owned your person and therefore had a right to defend that person. Just as you had a right to defend any of your property from any unjust taking.

You don't have to agree with these "natural law" rights. What you do have to do is to agree that the men of the founding era did believe in these principles and acted upon them.

It was therefore understood, at the time of the founding, that certain fundamental rights were enjoyed by all citizens, regardless of what State they were citizens of. It was unthinkable, at that time, that a State would consider trampling the rights of its citizens.

But come the Civil War and the States did exactly that.

The 14th amendment was much more than a simple vehicle to ensure the constitutionality of the Freedman's Bureau Act. It was meant to allow the federal government the necessary means to enforce the rights of all citizens upon the States. The amendment does this by creating and elevating US Citizenship above that of State Citizenship.

All the States must now protect the Privileges or Immunities of US Citizens.

Justice Washington, "riding circuit" in Corfield, stated that the list he gave was not inclusive, but only listed some of the fundamental and basic privileges and immunities of citizenship. If he had bothered to render that "tedious" task of defining all the rights, we can be sure that freedom of speech, the press, assembly, religion, defense of self and ones property, would have been listed. These and many more.

These are all fundamental rights, basic to the ordered liberty of citizens under a just and free government. And that is how we get to the inclusion of the BOR within the 14th amendments first clause.

The fact that the dissenters in the Slaughter-House Cases did not mention this may be nothing more than it was an accepted fact among the dissenters. Self evident, is a term that comes to mind. Unlike legal wrangling today, the omission of such did not necessarily mean it was excluded.

The one thing we can take away from the Slaughter-House Cases is that the majority of the Court refused to render the amendment its meaning. They literally refused to believe that the American people wanted such a profound change in Federalism.

Next week, Monday the 16th to be exact, Alan Gura will have submitted his brief in McDonald. I suspect this brief will become one of the major legal writings on 14th amendment meaning, if not the seminal monograph.

[RDak]

Thanks for the great info. Al.

Another question: What type of contract/agreement do the States enter into when entering the Union?

Is there a formal agreement in the sense of contract, etc.?

So far, this is as far as I have gotten, (I'll do more searching): (The Enabling Act)

http://en.wikipedia.org/wiki/Enabling_Act_of_1802

I would think this "contract" or "agreement" would require the recognition of fundamental rights throughout the respective State (i.e., fundamental rights recognized in the U.S constitution and common law).

[gc70]

The documents containing details of conditions for statehood have varied state by state.

The annexation of Texas, at the time a sovereign country, was unique in that it started with a treaty (http://avalon.law.yale.edu/19th_century/texan05.asp) that led to statehood (http://avalon.law.yale.edu/19th_century/texan01.asp).

Here are examples of other congressional acts enabling statehood: Hawaii (http://www.hawaiiankingdom.org/us-statehood-act-1959.shtml) and Utah (http://en.wikisource.org/wiki/Utah_Enabling_Act,1894).

Here is a list (http://www.thegreenpapers.com/slg/statehood.phtml?format=enabling) of the statehood process for all states.

Here is a Congressional Record report (http://digital.library.unt.edu/govdocs/crs/permalink/meta-crs-8169:1) on statehood histories.

[RDak]

Thanks for the info. gc70.

[Al Norris]

RDak, I hope this answers your question:

Article IV, Section 3
New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.
The above section of the Constitution does 2 things.

The first clause allows for the admittance of new States into the union, with restrictions on making new States out of existing States. Exactly how this should be done is not specified.

The second clause grants power to the Congress to administer all Federal lands that are not States; Such as making a territory into a State or States.

The enabling Act of 1802 became the precedence of how a new State is to be admitted. It set forth the rules by which a people (of a territory or other possession of the US) could elect representatives and vote on Statehood; Write their own Constitution and petition the Congress for admittance.

It is not a contract, agreement or compact (in the sense of the original 13 colonies under the Articles of Confederation), but a series of official legislative acts by the Congress relative to the people of the proposed State.

Under the Articles of Confederation, the union of the Colonies/States were declared to "be perpetual." The Constitution was ordained "to form a more perfect union." The logic then holds that since it took the States of the Union (via the Congress) to admit another State into Union, therefore said State was placed in perpetual union with all other States. That is, the new State was incorporated into the body politic. Such a thing is more than a mere compact, agreement or contract.

To dissolve the incorporation (union) requires that the corporation (union) agree to such dissolution. In other words, How a State became a State (by consent and Acts of the Congress) is exactly how a State would shed its union (by consent and further Acts of Congress). That conforms to Article IV Section 1 of the Constitution.

Any State that had signing documents that seemed to say something different, have no force of law, once admitted into union with the other States.

[RDak]

Yes, it helped alot.

A State becomes part of the Union in a more meaningful way than that of a contract or agreement.

It is merged, incorporated, made part of, etc.

Thanks for the info.

[Tom Servo]

Still digesting the Clayton/Johnson paper, but the summation on p. 27 is what I've been driving at in terms of intent:

By the end of April 1866, the Joint Committee of Fifteen reported its proposal for the Fourteenth Amendment out to the congress and the debate became public. Introducing the proposed amendment to the Senate, Senator Howard explained the view of the Joint Committee that the “Great object of the first section of this amendment is therefore to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.” These guarantees he urged were the “personal rights guaranteed and secured by the first eight amendments of the Constitution” including “the right to keep and bear arms.” Howard’s explanation was widely reported in the press.

In the summer of 1866, Congress voted to override Andrew Johnson’s veto of the second Freedman’s Bureau Bill and to approve for ratification the Fourteenth Amendment.
Sources quoted include the minutes of the 39th Congress, 1st Session and Benjamin Kendrick's Journal of the Joint Committee of the Fifteen on Reconstruction.

Of course, we'll be told that this was the obscure, misinterpreted minority opinion of "radicals." :)

It closes with a really interesting passage from an 1872 schoolbook (complete text here (http://tinyurl.com/yar5l8c)), which reads,

15. What are the rights which are secured to every individual by the Constitutions and laws of the United States?

The right to keep and bear arms.

Every individual throughout the nation has the Constitutional right to keep and bear arms. This accustoms the people to their use. (This right is not allowed by governments that are afraid of the people.)

Hats off, for the umpteenth time, to Mr. Cramer and his historical erudition.

[Hugh Damright]

if "Privileges or Immunities" are not the fundamental rights of citizens, then what are they?
My impression is that the 39th Congress intended the 14th Amendment's term "privileges or immunities" to be limited in scope, to mean some privileges or immunities and not others. For instance, while the Congress referred to Corfield v Coryell, that case defined the P&I so as to include suffrage, and yet laws which said that negroes could not vote did not violate the 14th.

It seems indisputable that the scope was at least to include the rights enumerated in the Civil Rights Act:

"the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property"


A State becomes part of the Union in a more meaningful way than that of a contract or agreement. It is merged, incorporated, made part of, etc.
The Framers made a distinction between a federal system and a consolidated government ... the US is at its foundation a federal system i.e. a compact between sovereign States.

Of course, we'll be told that [Howard's assertion] was the obscure, misinterpreted minority opinion of "radicals."

Quoting Howard ad nauseum does not transform his view into the majority view. We have covered this already. It is my understanding that the committee of fifteen did not discuss making the first eight amendments binding against the States, so I don't see how Howard was speaking for them.

[Bartholomew Roberts]

My impression is that the 39th Congress intended the 14th Amendment's term "privileges or immunities" to be limited in scope, to mean some privileges or immunities and not others. For instance, while the Congress referred to Corfield v Coryell, that case defined the P&I so as to include suffrage, and yet laws which said that negroes could not vote did not violate the 14th.

Is that your interpretation or a point of law? Considering that the 15th Amendment followed the 14th in ratification by 18 months. I would be surprised if there was any Supreme Court precedent on that issue.

Rather it strikes me reading the debates, particularly the first day introductory debates in both the House and Senate, that Congress has already acknowledged they are going to expand suffrage and that the 14th is going to play a role in protecting that right. For political reasons, it may be a separate amendment; but if there is an indication that Congress wants to exclude suffrage, you sure wouldn't guess it from those debates.

[Hugh Damright]

I would be surprised if there was any Supreme Court precedent [re: the 14th and suffrage]
There is Minor v Appersett ( http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=88&invol=162 ) where a woman claimed that the 14th gave her a right to vote, and the judge said that no, the 14th's P&I do not include suffrage. He also makes a rather profound point, I think, in saying that if the P&I included suffrage, then Article IV, Section 2 would mean that citizens of other States could come to Virginia and we would have to let them vote in our elections. Of course, he was not talking about a right to move to Virginia and become a citizen and thus acquiring a right to vote in our elections, he was talking about someone just coming here and voting, as a Virginian would, because we could not discriminate.

[Tom Servo]

Actually, the Waite court ruled that the 14th Amendment did not protect a right that was not in the BoA.

The 19th Amendment was a response to this. Should the right of a woman to vote be infringed in modern times, then it would likely be a 14th Amendment case.

[Hugh Damright]

Should the right of a woman to vote be infringed in modern times, then it would likely be a 14th Amendment case.
I'm not sure how to take this ... if it is an assertion that in our modern times we wouldn't need to bother with things like the 15th and 19th Amendments because the SCOTUS could give us such things in "legislation from the bench" while misconstruing the 14th Amendment to cover their activist rulings, then I tend to agree ... but if it is an assertion that the 14th is a "living amendment" which meant one thing when it was (supposedly) ratified and means something different in our modern times, then I disagree ... if the amendment did not originally regard suffrage, then it is not a delegation of jurisdiction over suffrage.

[RDak]

I see what you are saying Hugh a little more clearly now.

It will be very interesting to read the decision in McDonald.

[Bartholomew Roberts]

There is Minor v Appersett ( http://caselaw.lp.findlaw.com/cgi-bi...l=88&invol=162 ) where a woman claimed that the 14th gave her a right to vote, and the judge said that no, the 14th's P&I do not include suffrage.

I am aware of Minor. Rather I was thinking of a case contemporary with the adoption of the 15th Amendment that would suggest that the drafters of the 14th Amendment were not contemplating an extension of suffrage in the immediate future.

I don't think you'll find that case because it is clear from the debates that they were contemplating such an extension. Although as the dialog between Howard and Johnson concerning the 14th shows, it is clear that some of them foresaw the issue of women's suffrage, which may be why the issue was addressed in a separate amendment.

[Mello2u]

Has everyone at least contacted their respective senators to urge them to sign the pro-second amendment amicus brief in this case? An e-mail would be easy and effective.

http://www.senate.gov/general/contact_information/senators_cfm.cfm
This link can help you find your senators and their contact information.


This week comes the news that U.S. Senators Kay Bailey Hutchison (R-Texas) and Jon Tester (D-Mont.), are joining forces with U.S. Representatives Mark Souder (R-Ind.) and Mike Ross (D-Ark.), in filing a joint, pro-Second Amendment amicus curiae (Friend of the Court) brief before the Supreme Court in the McDonald v. Chicago case.
NRA-ILA

[Tom Servo]

Has everyone at least contacted their respective senators to urge them to sign the pro-second amendment amicus brief in this case? An e-mail would be easy and effective.
It's in the works.

Still, it could use more signatures, so if you've got a Democratic congressman, write 'em. Push the fact that this case encompasses numerous civil liberties, not just the 2nd Amendment.

[BillCA]

Given that my California Senators are Boxer and DiFi, I'm not even wasting my time.

[Bartholomew Roberts]

Bill, overturning Slaughterhouse based on the P&I clause would be something that even someone like Feinstein and Boxer might get onboard for since it offers the potential to expand federal enforcement of Constitutional guarantees in areas besides firearms rights.

If you couch it in those terms, I am sure you can find a lot of causes that those two Senators favor that would benefit from overturning Slaughterhouse.

[BillCA]

Bart,

Boxer might waver a little but I think DiFi would make her hold the line. From what I've been told by two people who worked in her SF office at different times, she would vote against any bill that supports 2A rights. My understanding is that if you told her overriding Slaughterhouse would guarantee a woman's right to choose AND equal pay she would vote against it rather than face watching draconian laws in CA, MA, Chicago, NYC and NJ get thrown out in the courts.

[Tom Servo]

From what I've been told by two people who worked in her SF office at different times, she would vote against any bill that supports 2A rights
Sadly, I've heard the same. She got into politics for one reason, and she remains there to pursue one agenda. I doubt she'll budge.

But one legislator's opinion isn't going to change the outcome here. The issue of revisiting the P&I clause has been in the wings for decades, and the 2nd Amendment continues to gain clout in the legal and academic communities. The snowball is rolling.

(Oh, and Bart, I think you meant "overturning Slaughterhouse" :))

[Al Norris]

The "fun" begins today.

The McDonald Merits brief is due to be filed today. Then within the next 10 days, all the amicus briefs will be due.

Anyone think there will be as many amici as there were for Heller?

[RDak]

The "fun" begins today.

The McDonald Merits brief is due to be filed today. Then within the next 10 days, all the amicus briefs will be due.

Anyone think there will be as many amici as there were for Heller?

Yes.

[Bartholomew Roberts]

Anyone think there will be as many amici as there were for Heller?

Actually, I think there will be less. There is less funding available for amici this time around. Heller also benefitted from its groundbreaking status and received a lot of pro-bono work; but the same people who donated the pro-bono work in Heller are probably not going to be able to donate several months of free legal work two years in a row. That tends to get expensive - and the law business took a big economic hit since Heller.

On the other hand, this has the potential to affect a lot more than the Second Amendment, so it may draw in activists from all kinds of different organizations that Heller didn't get...

[Tom Servo]

The McDonald Merits brief is due to be filed today. Then within the next 10 days, all the amicus briefs will be due.
Actually, it looks like there's been a delay. According to Gura's site (http://www.chicagoguncase.com/2009/11/12/briefing-developments/), the deadline for the respondent brief has been pushed back to 12/30.

Also interesting:

(...) today we received word that the Brady Center will be filing a brief… in support of neither party. That would have to be filed by the deadline for our amici, which is November 23.

I'm very curious to see how Henigan tries to spin things. I expect that he'll continue to bemoan the idea that the Court somehow "found" or "created" the right to keep and bear arms from whole cloth in the Heller decision. He'll likely refer to "activist" jurisprudence a few times as well. Then he'll chase his tail a bit, and when he runs out of ideas, he'll beg the Court to consider the "consequences" of their ruling. Think of the children and all.

[Al Norris]

Actually, it looks like there's been a delay. According to Gura's site (http://www.chicagoguncase.com/2009/11/12/briefing-developments/), the deadline for the respondent brief has been pushed back to 12/30.
Yes that pushes back the Respondents Brief and the Petitioners Reply Brief, but it does nothing to the Merits Brief, which is still due by the end of the day, today.

[freonr22]

here is todays brief

The Petitioner's brief for Incorporation of the Second Amendment was filed today in the Supreme Court.


http://www.chicagoguncase.com/wp-content/uploads/2009/11/08-1521ts.pdf


from calguns http://www.calguns.net/calgunforum/showthread.php?t=241385

[BillCA]

I'm very curious to see how Henigan tries to spin things. I expect that he'll continue to bemoan the idea that the Court somehow "found" or "created" the right to keep and bear arms from whole cloth in the Heller decision. He'll likely refer to "activist" jurisprudence a few times as well. Then he'll chase his tail a bit, and when he runs out of ideas, he'll beg the Court to consider the "consequences" of their ruling. Think of the children and all.
You may be right. Though I expect them to claim that the Heller decision incorrectly "up-ended" over one hundred years of court decisions that go back to before the civil war. Then drag out the old state's "rights" argument of militia in about 4 paragraphs of historical rationale, just before declaring that the [federalized] National Guard is today's militia. Then I expect him to engage in some cost-benefit doubletalk, toss out some numbers of people harmed by guns and claim Congress has a right to pass laws or delegate regulatory powers to some bureaucratic branch like the Consumer Protection folks. It will not argue the merits of the right or it's history unless it's a passing mention that "everyone back then knew..." therefore our opinion is assumed to be correct.

[Tom Servo]

You may be right. Though I expect them to claim that the Heller decision incorrectly "up-ended" over one hundred years of court decisions that go back to before the civil war.
Heller disrupted a bit of precedent, sure, but it was bad precedent and needed to be up-ended.

That's largely what this case is about. Falling back on stare decisis isn't always acceptable. As Gura states,
A doctrine originally celebrated for defying the Constitution, and which cannot seriously be defended against the overwhelming weight of text and history, must not be allowed to continue depriving Americans
of their civil rights. p. 58
Just because Slaughterhouse attracted five votes doesn't make it good law.

Gura understands the gravity of what he's asking the Court to do, and he takes a multi-pronged strategy in his arguments that's very persuasive.

[htjyang]

I just finished the merits brief and took some notes. I hope I can be forgiven for posting what turns out to be very lengthy thoughts on the brief and the issue of the Privileges or Immunities Clause:

1. Those who have been following the Privileges or Immunities Clause discussion in this thread might be pleased to learn that some of the authorities cited in this discussion (Bingham, Corfield,...etc.) were cited in Alan Gura's merits brief.

2. Curiously, the brief also invokes the abolitionist paper Liberator. No one today doubts that the paper was right then, but the fact remains that back then, it was not exactly a neutral source. I'm not sure how much weight the Court will place on it in search of the original understanding of the phrase. That said, this is a minor quibble.

3. On page 25 (file page 43), I think Gura made a very effective point by noting that even an opponent of the 14th Amendment read "privileges and immunities" the same way its proponents did: It was interchangeable with "rights."

4. I like the fact that Gura applies the principle of original public understanding by examining the popular press back then.

5. On page 60 (file page 78), Gura (rightly, in my opinion) conceded the weakness of the doctrine of substantive due process and recommended the Privileges or Immunities Clause to do the heavy-lifting instead. This will mark a very major change in constitutional law. That said, it will help bring some doctrinal order to the chaos of the 14th Amendment jurisprudence.

6. Gura's brief can be characterized as an onslaught of evidence showing that the phrase "privileges and immunities" was used the same way as "rights." I doubt the city of Chicago can say anything to defend itself against the mountain of evidence summoned by McDonald.

If the city knows its business (though it's far from clear that they do), I would advise them against trying to defend Cruikshank. Instead, they should apply the approaches suggested by the Heller dissenters and the 7th Circuit. That is to say, they should first argue that though the 2nd Amendment is incorporated, localities are still free to pass serious restrictions on the right to keep and bear arms.

Obviously, this argument, standing alone, will meet the same fate that it did in Heller. Which is why it must be supplemented by the 7th Circuit's argument about federalism. Specifically, the city should rely heavily on the 10th Amendment to defend itself against the 14th. The merit of this approach is that it can distinguish itself from Cruikshank by pretending to accept the incorporation of the 2nd Amendment while still rendering the amendment essentially toothless.

I doubt this approach will succeed either. The elephant in the room is this: Most of the Bill of Rights have been incorporated. It will be odd indeed if the 2nd Amendment right which is exercised by about 80 million people in this country is not. That said, at least this approach will avoid defending Cruikshank, which is something that I doubt even the liberal justices will touch with a 10-ft. pole.

I understand, and to a certain extent even sympathize with Hugh Damright's concern about incorporation's impact on federalism. But it is not the place of the courts to decide that the constitutional principle of federalism should override the 14th Amendment. Ultimately, the federal constitution is the product of the voice of the people as expressed through Article V. To have the courts decide the issue would be making the same error the Slaughterhouse Court made and is nothing more than judicial activism of another type. There may be a legitimate argument in repealing or amending the 14th Amendment to restrict the damage it does to federalism. But as it has passed, it is not the place of the courts to stand athwart the will of the people:

For, whenever a question arises between the society at large, and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of the society itself; there is not upon earth any other tribunal to resort to.

- Blackstone's Commentaries on the Laws of England, Book I, Chapter 3

Therefore, to me, the issue is very simple: What was the meaning of the phrase itself? Gura makes a compelling argument that it is interchangeable with rights. A plain reading of the amendment should conclude that it was meant to incorporate federal rights into the states. Gura rightly chose not to delve into the question of whether the rights of state citizenship is incorporate with one another. Aside from the fact that it is not necessary to reach that issue for this case, it also preserves some room for the principle of federalism to operate while ignoring a very thorny issue.

Hugh Damright also previously expressed the concern that the text of the 14th Amendment seems to constitutionalize the 1866 Civil Rights Act. Gura's brief supports that view as well. But to quibble about this point comes dangerously close to re-fighting the Civil War. The fact of the matter remains that does appear to be the intent of the authors of the 14th Amendment. I wouldn't say that the full text of the act itself was incorporated as it obviously was not.

The damage done to federalism can be mitigated by reading the clause narrowly as to apply to only those rights that were commonly acknowledged in the late 19th century.

In conclusion, let me just say that Barron v. Baltimore effectively shielded the states from applying federal rights for 3 decades. It's possible to make an argument that the Framers of the Philadelphia Convention intended things that way. But the passage of the 14th Amendment changed that situation. Complaints about the 14th Amendment being a victors' amendment is really nothing more than an attempt to try to re-fight the Civil War. Ultimately, it is beside the point. The amendment was passed. Unless it is repealed, the courts should enforce it.

[ReelinRod]

New here and first post; thank you all for a very informative thread.

Just a couple points that I would like to throw out . . .

1) Does anyone give weight to the explanation Bingham gave to Congress in 1871 (debates on the Enforcement Act) about his intent and understanding in/of the 1st section?

He was apparently asked to define the meaning of the 1st section so Congress could understand what they were enforcing. Bingham says his model was the wording of Art I §10 clauses binding the states guided by the direction of Barron.

The following are Bingham's statements taken from Section VII of Black's dissent (appendix) in ADAMSON V. PEOPLE OF STATE OF CALIFORNIA, 332 U.S. 46 (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=332&invol=46) (1947), that begins on page 110 of the opinion:

"I answer the gentleman, how I came to change the form of February to the words now in the first section of the fourteenth article of amendments, as they stand, and I trust will forever stand, in the Constitution of my country. I had read-and that is what induced me to attempt to impose by constitutional amendments new limitations upon the power of the States-the great decision of Marshall in Barron v. The Mayor and City Council of Baltimore, wherein the Chief Justice said, in obedience to his official oath and the Constitution as it then was: 'The amendments (to the Constitution) contained no expression indicating an intention to apply them to the State governments. This court cannot so apply them.'-7 Pet. page 250.. . . .

'In ree xamining that case of Barron, Mr. Speaker, after my struggle in the House in February 1866 to which the gentleman has alluded, I noted and apprehended as I never did before, certain words in that opinion of Marshall. Referring to the first eight articles of amendments to the Constitution of the United States, the Chief Justice said: 'Had the framers of these amendments intended them to be limitations on the power of the State governments they would have imitated the framers of the original Constitution, and have expressed that intention.' Barron v. The Mayor, &c., 7 Pet. 250.

'Acting upon this suggestion I did imitate the framers of the original Constitution. As they had said 'No state shall emit bills of credit, pass any bill of attainder, ex post facto law, or law impairing the obligations of contracts;' imitating their example and imitating it to the letter, I prepared the provision of the first section of the Fourteenth Amendment as it stands in the Constitution, as follows: 'No State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States, nor shall any State deprive any person, of life, liberty, or property without due process of law, [332 U.S. 46 , 115] nor deny to any person within its jurisdiction the equal protection of the laws.'

'I hope the gentleman now knows why I changed the form of the amendment of February, 1866.

'Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States. Those eight amendments are as follows: ( Here Mr. Bingham recited verbatim the first eight articles.)

'These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment. The words of that amendment, 'no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States,' are an express prohibition upon every State of the Union, which may be enforced under existing laws of Congress, and such other laws for their better enforcement as Congress may make. "

---

2) Is there any incorporation implication in the southern states with discriminatory language (i.e., "free white men") in their constitution's RKBA provisions being forced to rewrite them to conform with the federal 2nd?

---

3) Doesn't Presser affirm that the right to arms stands outside the Amendment and that the states are forbidden to disarm their citizens, enforced by a federal power emanating from both the Constitution and the fundamental principles?

I think that the right to arms could be argued to be federally protected from state infringement simply by the Constitution's promise to forever provide a republican form of government. Certainly the republic the framers embraced / established had as a essential (if not inseparable) component, an armed citizenry from which a militia could be drawn.

Essentially, the federal government can not allow one state to act in an un-republican fashion, such as disarming its citizens.

Could that case be made?

(I'm just a construction worker that reads a lot) :D

Thanks.

[Al Norris]

Since I've just finished skimming the Merits Brief, I have to say that htjyangs' analysis appears to be spot on!

ReelinRod, simply a very good first post. I thank you for your considered questions. Before I attempt to answer them, I would like to thoroughly read Mr. Gura's brief in the full. I'm sure in the meantime, some others will be along shortly, to give you their considered answers. Welcome to the FiringLine.

My own spot analysis of the brief is that Mr. Gura has laid out a rather forceful argument that the Court will have a hard time ignoring.

Oh! Don't worry about the length of your posts. Speaking and analyzing such weighty subjects requires lengthy posts. Um, you've noticed a few of mine, yes?

[Bartholomew Roberts]

Wow, I am surprised that they spent only 6 pages on the selective incorporation via due process argument. The majority of the brief argues for overturning Slaughterhouse.... they really went all out for it. They did an excellent job as well.

[Tom Servo]

Wow, I am surprised that they spent only 6 pages on the selective incorporation via due process argument. The majority of the brief argues for overturning Slaughterhouse.... they really went all out for it
Hey, no guts, no glory :)

Gura's always said that he believes Due Process incorporation to be the weakest (and most narrow) way of doing it. His part on Due Process, rather than adding it as a possible "way out," claims that Due Process incorporation must be assumed by a verdict consistent with P&I incorporation.

Furthermore, this case does present a really good opportunity to close the books on Slaughterhouse.

Doing that is something that's not only long overdue, but it's something that makes this much more than a "gun rights" case.

Of particular interest is the 7-point dissection Gura does on Slaughterhouse:

Slaughterhouse Contradicts History,
Slaughterhouse Rests on a Mis-quotation, Reflecting a Premise Rejected by the Amendment’s Framers,
SlaughterHouse Is Illogical,
Stare Decisis Does Not Secure the SlaughterHouse Line,
SlaughterHouse Is Not Truly Practical (and, Correcting This Court’s Privileges or Immunities Doctrine Would Not Upset Legitimate Reliance Interests),
SlaughterHouse Is Largely Anachronistic,
Modern Factual Understandings Render SlaughterHouse Untenable

The man is organized, thorough and well-argued.

He quotes Andrew Jackson Rogers, a representative who opposed incorporation because he thought it would dilute states' rights:
What are privileges and immunities? Why, sir, all the rights we have under the laws of the country are embraced under the definition of privileges and immunities. The right to vote is a privilege. The right to marry is a privilege. The right to contract is a privilege. The right to be a juror is a privilege. The right to be a judge or President of the United States is a privilege.
Reelin Rod, thanks for one of the best "first posts" I've ever seen! Please stick around. In answer to your questions:

1) I disagree with Bingham's idea that, "these eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment." In the late 18th and early 19th centuries, the protections of the Bill of Rights was largely assumed to apply to state governments. In Campbell v. The State of Georgia, Chief Justice Lumpkin wrote,

While the amendments to the Constitution of the United States were primarily intended to be restrictive upon the powers of the General Government, and not the Legislatures of the several States–yet they are "declaratory" of great principles of civil liberty, which neither the national nor the State governments can infringe.

Barron dragged the question onto the main stage, and then gleefully strangled it. The 14th Amendment was a way of clarifying and codifying the idea that our rights were to be acknowledged by state governments.

2) That's a good question. Do you know which states still have "free white men" in their Constitutions?

I'd think that, in this day and age, the continued existence of such wording is probably an oversight, and one easily fixed by local action. Still, as long as the phrase was not used as grounds to discriminate, I wouldn't see it being a 14th Amendment issue.

3) Presser was as much about dispersing an armed parade as it was anything else, and it's quite problematic. Its eventual conclusion was to reassert the "states' rights" ideas of Cruikshank.

[Hugh Damright]

I understand, and to a certain extent even sympathize with Hugh Damright's concern about incorporation's impact on federalism. But it is not the place of the courts to decide that the constitutional principle of federalism should override the 14th Amendment. Ultimately, the federal constitution is the product of the voice of the people as expressed through Article V.In my view, the 14th says nothing about incorporating the USBOR, and it wasn't properly ratified, so it seems like an incredible stretch to say that it is the will of the people that we have incorporation of the USBOR.

And I think it is exactly the place of the courts to construe the 14th Amendment (and the rest of the US Constitution) so as to preserve the basic frame of government.

Does anyone give weight to the explanation Bingham gave to Congress?Some do ... but wasn't that the same speech where Bingham said that the essence of our frame of government is "centralized power / decentralized administration", and that the States were bound to abide by the USBOR because of a speech by Daniel Webster? Personally, I think Bingham was full of nonsense.

Is there any incorporation implication in the southern states with discriminatory language (i.e., "free white men") in their constitution's RKBA provisions being forced to rewrite them to conform with the federal 2nd?I don't think so ... prior to the 14th there was a Freedmens Bureau Bill which was modified to regard the RKBA, and it was not added to the list of civil rights (which might imply incorporation) but rather it was added to the "equal protection" clause ... I am not aware that any States had to rewrite their Constitutions to conform to the Second Amendment, but rather they had to end discriminatory gun laws.

Essentially, the federal government can not allow one state to act in an un-republican fashion, such as disarming its citizens. Could that case be made?
Possibly, if we were talking about a State disarming all of its citizens ... but on the other hand, I think a republican form of government has police powers and gun laws.

[freonr22]

By the way, I heard Gura is only 38 years old. (i am 39) what a sharp guy he is. (ie what did I do with my youth???)

[Hugh Damright]

What are privileges and immunities? Why, sir, all the rights we have under the laws of the country are embraced under the definition of privileges and immunities. The right to vote is a privilege. The right to marry is a privilege. The right to contract is a privilege. The right to be a juror is a privilege. The right to be a judge or President of the United States is a privilege.
But the object, the P&I associated with US citizenship, do not include all of these rights. If they did, then Article IV, Section 2 of the US Constitution would mean that Virginians would have to let citizens from other States vote in our elections, serve on our juries, run for office, and so on. And if the right to be President is a privilege of US Citizenship, that would seem to mean that all US Citizens have a right to run for President, which isn't true. It appears to me that Andrew Jackson Rogers was confused, and that Gura must know better.

[Tom Servo]

I am not aware that any States had to rewrite their Constitutions to conform to the Second Amendment, but rather they had to end discriminatory gun laws.
Really? When? Last time I was in New York, I could not carry a gun, lest I run afoul of the Sullivan Act, a law that has the phrase "swarthy immigrants" in its text.

Try getting a CCW in Alabama if you're not white. There are still discriminatory gun laws, and selectively enforced ones, on the state level in several places.

It appears to me that Andrew Jackson Rogers was confused, and that Gura ought to know better.
Sure, because Gura just went to Cornell and Georgetown. Those are practically community colleges. He got all his notoriety for arguing some gun case or other when he was in his 30's. It's easy to wonder if he has any clue what he's doing. :p

[Al Norris]

After a thorough reading and some little thought, I fail to see how any honest argument can be advanced that would be contrary to the assumption that the Court utterly failed in its duty to abide by the Constitution as amended.

The key of course, is honesty in your opponents argument.

The one weak point in the argument? In my opinion, he fails to tie the decision of Justice Washington in Corfield to the Bill of Rights itself. Not surprising however, as while there is much scholarship in the socio-economics of the decision, there is little scholarship in its legal sense. Due in part to Slaughter-House itself, I suspect.

I did note that Gura was familiar enough to note that in Corfield, Washington was using the, then, natural rights theory. You can really see this, especially as Gura talks about rights and towards the end, and addresses "alienage" laws. That's all language from the generally dismissed Lockean concepts.

Under the views of rights, at the time of the founding, citizens had rights that didn't always include aliens (and immigrants not yet citizens). It was a common thing back in those days and this view was inherited from the English Common Law.

The single best quote of the entire brief was the last paragraph of part II:
This Court is not merely presented with a situation in which the facts have “come to be seen so differently.” Casey, 505 U.S. at 855. The facts had never been examined by this Court at all. Slaughter-House announced a set of assumptions, which later courts would not re-examine. Notwithstanding the precedent, with respect to the Privileges or Immunities Clause, this is arguably a case of first impression.
... then Article IV, Section 2 of the US Constitution would mean that Virginians would have to let citizens from other States vote in our elections, serve on our juries, run for office, and so on.
Hugh, you really haven't read Corfield v. Coryell. I can tell, because of the way you phrased the above.

Washington went on to talk about just those little scenarios. States could say, which type of citizen could serve on a jury. Which type of citizen could vote in its elections or even be elected. Add to this, that the Constitution itself is explicit on what type of citizen can be President... Or did you forget that?

Washington defined a 2 part test on the privileges and immunities: (1) They belong, of right (and not merely indulgence) to the citizens of all free governments AND (2) have been enjoyed by the citizens of the several states since independence.

When you apply that to the Bill of Rights, almost all of them satisfy both qualifications.

[Hugh Damright]

Gura just went to Cornell and Georgetown
I said that Gura ought to know better, but really what I mean to say is that he must know better. I wasn't questioning his education or intelligence but rather I was questioning the integrity of his argument as I understand it (I haven't even read the thing I was just responding to a post). I think Gura must know that Roger's definition of "privileges or immunities" was inappropriate and, as I think I just demonstrated, untenable.

Further, I don't think this type of argument carries much weight ... I think Bradford's Original Intentions refers to this as "diaboli"(?) ... the idea being to take an extreme opposition statement, such as Rogers saying that the P&I was so broad that it "saps the foundation of the Government; it destroys the elementary principles of the States; it consolidates everything into one imperial despotism; it annihilates all the rights which lie at the foundation of the Union of the States" ... and conclude that the majority intended the P&I to be as broad as Rogers was saying.

[Hugh Damright]

States could say, which type of citizen could serve on a jury. Which type of citizen could vote in its elections or even be elected.
IIRC, Washington said that States could regulate the rights in question, for the common good ... but the point is that Article IV, Section 2 says that the States cannot regulate the P&I so as to discriminate against citizens from other States ... so while Washington may have said that a State can regulate the right to vote, if they can regulate it so as to exclude citizens from other States, then how is it a P&I under Article IV, Section 2?

Add to this, that the Constitution itself is explicit on what type of citizen can be President
Again, if the right to run for President is a P&I of US Citizenship, then that would seem to mean that all US Citizens have a right to run for President, and that is not true (because the Constitution says what type of citizen can be President) ... for example, someone from another country may move here and become a citizen of the US, but they still do not have a right to be President, so how is the right to run for President a P&I of US Citizenship?

[RDak]

Thanks for the links guys. I'll read them in a couple of days.

Reelin Rod, great first post. You ask very good questions IMHO.

[Bartholomew Roberts]

But the object, the P&I associated with US citizenship, do not include all of these rights. If they did, then Article IV, Section 2 of the US Constitution would mean that Virginians would have to let citizens from other States vote in our elections, serve on our juries, run for office, and so on.

You seem a little inconsistent in your interpretations, Hugh. On the one hand, Johnson, Howard, Wilson and the others are all radical malcontents who everyone ignored without even challenging the crazy things coming out of their mouth; on the other the interpretation you advance is but one of many possible interpretations (and one suggested by an opponent of the 14th) and not necessarily a correct one.... for example:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Looking at that, I fail to see how a state saying that jurors, voters, etc. must be residents would fall afoul of the 14th Amendment. I don't think the interpretation put forth is tenable.

However, I do think it interesting that one of the opponents of the 14th decried it because it "attempts to put the Freedmen's Bill into our Constitution" - not only does he use language similar to the argument you have been making - that the 14th Amendment duplicated many of the provisions of the Civil Rights Bill; but he carries it to its logical conclusion - that the 14th Amendment changes the Constitution to give the federal government power to enforce the privileges and immunities of citizens against the States.

Frankly, I think Gura's brief pretty well addresses your points more soundly than I could have.

[ReelinRod]

Thanks for the welcome and the compliments. I'm new here but I'm no newbie. ;)

Hugh Damright wrote:

I am not aware that any States had to rewrite their Constitutions to conform to the Second Amendment, but rather they had to end discriminatory gun laws.

Tom Servo wrote:

2) That's a good question. Do you know which states still have "free white men" in their Constitutions?

I'd think that, in this day and age, the continued existence of such wording is probably an oversight, and one easily fixed by local action. Still, as long as the phrase was not used as grounds to discriminate, I wouldn't see it being a 14th Amendment issue.

Section 5 of the First Reconstruction Act (March 2, 1867) made the removal of such language a condition for re-admittance to the Union (together with ratification of the 14th Amendment):

"That when the people of any one of said rebel States shall have formed a constitution of government in conformity with the Constitution of the United States in all respects, . . . and when such constitution shall provide that the elective franchise shall be enjoyed by all persons as have the qualifications herein stated for electors of delegates, . . . and when said State, . . . shall have adopted the amendment to the Constitution of the United States, proposed by the Thirty-ninth Congress, and known as article fourteen and when said article shall have become a part of the Constitution of the United States said State shall be declared entitled to representation in Congress, . . . "

Ten rebel states held constitutional conventions between 1867-68 that produced constitutions in alignment with the US Constitution. Tennessee did not do so until 1870. Arkansas, Florida and Tennessee had the "free white men" qualifier prior to 1867; all were rewritten, removing the discriminatory language:

Arkansas:
"That the free white men of this State shall have a right to keep and to bear arms for their common defence." Art. II, § 21. (1836)

"The citizens of this State shall have the right to keep and bear arms for their common defense. Art. II, § 5 (1868, art. I, § 5).

Florida:
"That the free white men of this State shall have a right to keep and to bear arms for their common defence." Art. I, § 21. (1838)

"The people shall have the right to bear arms in defence of themselves and of the lawful authority of the State." Art. I, § 22. (1868)

Tennessee:
"That the free white men of this State have a right to keep and to bear arms for their common defence." Art. I, § 26. (1834)

"That the citizens of this State have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime." Art. I, § 26 (1870)

I do not see how it is possible to argue that the states did not understand that the 14th made the entire federal Constitution (including the BoR and 2ndA specifically) binding upon them.

Tom Servo wrote:

3) Presser was as much about dispersing an armed parade as it was anything else, and it's quite problematic. Its eventual conclusion was to reassert the "states' rights" ideas of Cruikshank.

I find Presser intriguing for a couple of reasons.

I find very interesting Justice Wood's altering of the Cruikshank holding from quoting the indictment, "bearing arms for lawful purpose" to "the right of the people to keep and bear arms."

"It was so held by this court in the case of U. S. v. Cruikshank, 92 U.S. 542 , 553, in which the chief justice, in delivering the judgment of the court, said that the right of the people to keep and bear arms 'is not a right granted by the constitution. Neither is it in any manner dependent upon that instrument for its existence. . . . "

That precise quote from the 2nd Amendment absolutely solidifies that the specific right protected by the 2nd does not flow from the 2nd, a premise that could only be surmised from Cruikshank's use of the indictment's characterization.

After re-affirming that the 2nd Amendment protected right to arms is not granted by the Amendment or dependent upon it in in any manner, the Court arrives at the unavoidable dilemma that the 2nd Amendment does not apply to the states (cites to Barron, Fox, Twitchell, Cruikshank, etc).

Here's where it gets interesting for me. Presser then seeks to discover if there is any federally protection for the right to arms held by the citizens of the states existing without reference to the 2nd Amendment. That is a very interesting tack to take IMO.

The Court first finds that the general militia concept is a fundamental component of this nation as well as the states:

"It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, . . . "

What does that fundamental tenet demand?

". . . and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, . . . "

There is then a federal protection interest in the state citizen's right to arms and that protection exists on two planes.

It exists in the "general powers" (those laid out specifically in the Constitution) and in the "prerogative of the general government." I believe that word, prerogative, is describing an inferred power that exists as fundamental principle of our Constitutional Republic.

Again, because the Constitution promises to the states to forever provide a republican form of government (Article IV, § 4, "general power") a power is thus granted by inference to keep that promise (prerogative); to secure the continuance of our all of the founding principles.

The Court then addresses specifically the mechanism behind this federal power that binds state action. The states can not prohibit the people from keeping and bearing arms because that action would:

". . . deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government."

This is most definitely not an affirmation of "state's rights." This explains a mingled dependence; the states are barred from disarming their citizens because those armed citizens are also the resource upon which the security of the federal government depends.

The principle works both ways; the federal government can not act to disarm state citizens because the states rely on those people for their security.

Which is a reason the 2nd Amendment exists of course. :D

Thanks again for the welcome!

.

[freonr22]

By the Way NRA Brief

http://www.nraila.org/pdfs/NRA08-1521.pdf

[Bartholomew Roberts]

Hmmm, I really expected the NRA to concentrate on the due process argument, and they did; but they still gave 11 pages of a 47 page brief to P&I arguments.

I'm a little surprised in that I thought the P&I arguments would be more the sideshow than the main thrust. I guess that is a good thing so far as it signals how strong the due process argument is that they can dedicate that much ink to P&I.

[Hugh Damright]

I do not see how it is possible to argue that the states did not understand that the 14th made the entire federal Constitution (including the BoR and 2ndA specifically) binding upon them.I don't follow this ... the States had to end discriminatory gun laws ... how did we jump from there to the conclusion that the Second Amendment was binding upon the States?



I fail to see how a state saying that jurors, voters, etc. must be residents would fall afoul of the 14th Amendment.
I agree. But I think it would "fall afoul" of Article IV, Section 2 to construe the P&I to be so broad as to include such things. Doesn't Article IV, Section 2 mean that Virginia cannot discriminate against citizens from other States within the area of "privileges and immunities"? And since clearly Virginia can discriminate against citizens from other States when it comes to the right to vote, be on a jury, etc. doesn't that demonstrate that these rights cannot be part of the P&I?

[ReelinRod]

Hugh Damright wrote:

I don't follow this ... the States had to end discriminatory gun laws ... how did we jump from there to the conclusion that the Second Amendment was binding upon the States?

Are you saying that those state constitution RKBA provisions were just simple gun control laws, mere acts of the legislature?

[Bartholomew Roberts]

And since clearly Virginia can discriminate against citizens from other States when it comes to the right to vote, be on a jury, etc. doesn't that demonstrate that these rights cannot be part of the P&I?

No, it doesn't; but even if it did, it doesn't help your case that the 14th Amendment is not meant to incorporate the fundamental civil rights like those enumerated in the Bill of Rights (since none of the points you are discussing are covered by the first 8 amendments).

[Al Norris]

The first amicus brief is up, over at the ABA Merits Briefs section is the Rutherford Institute (http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/08-1521_PetitionerAmCuRutherfordInst.pdf) in support of the Petitioners.

[RDak]

Thanks Al for the link.

Read it and the petitioner's brief.

Both are a great read and I'll just have to wait for the decision from the SCOTUS.

The question has been discussed in this thread very well and I can't add anything to it. I absolutely think we will win this case hands down FWIW.

I also believe the Slaughterhouse decision will be dismantled for the "lunacy" it represents.

Man, I can't wait to read the SCOTUS decision. It will be another Heller IMHO. :)

[Al Norris]

In my searches for legal arguments on the original Privileges and Immunities clause (Art IV sec 2), I stumbled upon a very good article that had been published as a "Note" at 83 Tex L Rev. 1483, Corfield v. Coryell and the Privileges and Immunities of American Citizenship, by David Upham.

The gentleman is an attorney and Assistant Professor of Politics, University of Dallas. In a brief email exchange, David sent me the complete paper. I thank him for that.

His "note" is 52 pages and in his own words: "largely an adaptation of chapters 2–7 from my unpublished dissertation: Exploring “That Unexplored Clause of the Constitution”: The Meaning of the “Privileges and Immunities of Citizens” Before the Fourteenth Amendment (2002) (Unpublished Ph.D. dissertation, University of Dallas)."

I believe it explains a lot on original understanding and how the P&I clause was first viewed, before the [i]Slaughter-House Cases" was decided. It certainly adds to the debate over what the Congress meant when passing the 14th amendment. I also believe this to be a "sleeper." That is, it deserves a much wider distribution and appreciation in the legal community.

For those interested, you can read it here (http://home.pmt.org/~alnor/Upham_Proof.pdf). For those of you that take the time to download and read this paper, I think you will agree that it highlights how the original meaning was lost.

[htjyang]

The people at Volokh Conspiracy had been hotly debating Alan Gura's brief. (The relevant threads are here (http://volokh.com/2009/11/16/petitioners-brief-in-mcdonald-v-city-of-chicago-the-second-amendment-incorporation-case/) and here (http://volokh.com/2009/11/17/how-many-votes-to-overrule-the-slaughterhouse-cases/).) Prof. Orin Kerr rightly said of Gura's brief: "It’s not just arguing for a win: It’s arguing for a revolution." The fact that Gura went all out in favor of the PoI Clause makes it very clear that this is a libertarian campaign.

That said, I'm not sure that it is as hopeless as Prof. Kerr thinks it is:

a) The PoI argument is only radical from a purely doctrinal perspective. The reality is that most of the Bill of Rights have already been incorporated and the Court has already recognized many other rights as fundamental, some of them were clearly not thought of as such during the late 18th-late 19th centuries. Therefore, practically, I'm not sure that swapping substantive due process for PoI will have significant real world impact. From a purely doctrinal perspective, swapping the weakly supported substantive due process argument for the much more strongly supported PoI argument is a plus. I can't help but notice that for all of Prof. Kerr's alarm about the radicalism of this doctrinal shift, he did not write a single sentence contradicting all the evidence Gura summoned in his brief.

b) I think the professor also overstates the extent to which conservatives respect stare decisis. Just last term, the center-right justices struck down the precedent Michigan v. Jackson in Montejo v. Louisiana. The Court also eviscerated New York v. Belton in Arizona v. Gant and Conley v. Gibson in Ashcroft v. Iqbal. That's just from last term. If I go back term by term, I can find many more such examples. Let me also note that only 2 members of the Court were in the majority in all 3 cases: Scalia and Thomas.

(Memo to Alan Gura: You might want to remind the Court of its recent handiwork.)

This is not to say that conservatives don't respect stare decisis. It is to say, as Gura's brief (quoting the late Justice Thurgood Marshall) pointed out, stare decisis is not an inexorable demand. While it is true that these precedents are not as old as the Slaughterhouse cases, they don't exactly fit in with the professor's thesis. Let me also note that in 2007, the Court struck down Dr. Miles Medical Co. v. John D. Park & Sons in Leegin v. PSKS. That case was nearly as old as the Slaughterhouse cases. In terms of real world impact, overturning these precedents probably has more real world impact than the doctrinal shift Gura is advocating. The professor understates the extent to which Justice Scalia is willing to throw the legal system into chaos because of his fidelity to the Constitution. Anyone familiar with Justice Scalia's jurisprudence on the 6th Amendment will know the degree to which he turned the entire criminal justice field upside down over the past 10 years.

c) In my last post, I already suggested a way for the Court to limit any potential abuse of the PoI Clause. The Court can declare that the PoI only incorporates those rights that were widely recognized as fundamental in the late 19th century.

I'm not suggesting that it is likely for the PoI argument to be affirmed by the Court. I am only suggesting that it may not be as hopeless as the professor thinks it is.

[Bartholomew Roberts]

I think the "revolutionary" aspect of overturning Slaughterhouse will be less in how that overturns existing precedent (which has all been done through due process mostly) but more in terms of how it may be applied in the future against the states. Looking at the discussion of what the P&I clause covers, you've got endless opportunities for new litigation on 14th grounds.

You are talking a whole new ballgame on a wide range of subjects; but yes, I don't think there is much question that Gura is deliberately aiming to take out Slaughterhouse rather than simply making the argument because it might help his case.

[freonr22]

This is an interesting read

from the highroad.us


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The comments at the link are also interesting reading.

Kopel on the Petitioner's and NRA Briefs (link) http://volokh.com/2009/11/17/nra-brief-in-mcdonald-v-chicago/comment-page-1/

November 17, 2009 7:59 pm

Last night, Orin noted the filing of the Petitioner’s brief in McDonald v. Chicago, the case that will decide whether the 14th Amendment makes the 2d Amendment applicable to state and local governments. As Orin noted, that brief is almost entirely devoted to incorporation under the Privileges or Immunities clause. It directly asks the Court to over-rule Slaughterhouse, Cruikhank, and Presser.

In my view, it’s a superb brief. It’s worthy of study by law students and anyone else who wants a great example of legal writing that is passionate and forceful, yet also sober and serious.

In the brief’s short discussion of Due Process, attorney Alan Gura aptly writes: “A ‘law’ depriving one of life, liberty or property ‘must not have exceeded the limits of legislative power marked by natural and customary rights.’” (quoting Frederick Gedicks, An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment, 58 Emory L.J. 585, 644–45 (2009).) This is an important point; “substantive due process” may be ill-named, but it is founded on legitimate, originalist doctrine.

Many folks have been wondering why the Gura brief concentrates so heavily on the bolder theory (Privileges or Immunities) rather than the one that courts have used over the last century (Due Process). Here’s the answer: After Heller, the Second Amendment Foundation (SAF) and the National Rifle Association each filed separate lawsuits against the Chicago handgun ban. The cases were consolidated in the Seventh Circuit; after the panel ruled, SAF and NRA each filed separate petitions for certiorari. The Supreme Court granted cert. in the SAF case, McDonald v. Chicago. A few weeks later, the Court added NRA to the case as a party. So NRA is now a “Respondent in Support of Petitioners.” The suburb of Oak Park, which had been sued by NRA but not by SAF, was also added as a party.

So as a party, NRA filed its brief yesterday. The lead attorneys on the brief are Stephen Poss (attorney of record), Stephen Halbrook, and others. The NRA brief takes the more conservative approach. It mainly argues for incorporation via Due Process, with only a brief discussion of Privileges or Immunities. NRA does not ask for any cases to be over-ruled, since Slaughterhouse, Cruikshank, and Presser are all P or I cases, and predate the Court’s recognition of selective Due Process incorporation.

Because the Question Presented by the Court asked about both P or I and Due Process incorporation, it was appropriate that one party brief focused on the former, and the other party brief on the latter.

Amicus briefs (including one I am writing) in support of Petitioners are due Monday, Nov. 23. The Chicago and Oak Park briefs are due Dec. 30, since the Court granted them a two-week extension. Amicus briefs in support of the Chicago and Oak Park handgun bans are due one week after that.

When the amicus briefs start appearing a few days, I will blog about the most important or interesting ones.
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End Quote

[Hugh Damright]

Are you saying that those state constitution RKBA provisions were just simple gun control laws, mere acts of the legislature?
In my mind, what fired up the 39th Congress was gun laws, IIRC in Alabama and Mississippi, which said that negroes could not have guns. The Freedmens Bureau Bill and the 1866 Civil Rights Act addressed discriminatory gun laws by requiring equal benefit and protection of laws regarding the protection of person and property, and this equal protection clause carried over to the 14th. I can see how the States had to abide by the 14th's equal protection clause by ending discrimination in regards to the RKBA, but the fantastic leap to the conclusion that the Second Amendment binds the States is too much for me.

I don't know why we want to focus on reconstruction acts and States having to take the word "white" out of their Constitutions, but regardless, how do we jump from there to the conclusion that the Second Amendment binds the States? I seem to be missing the connection there, was the assertion that the States had to take the word "white" out of their Constitutions and that therefore the USBOR and especially the Second Amendment binds the States?


since clearly Virginia can discriminate against citizens from other States when it comes to the right to vote, be on a jury, etc doesn't that demonstrate that these rights cannot be part of the P&I?
No, it doesn't
I'm not sure that I understand ... I think you are saying that Virginia can discriminate against citizens of other States when it comes to the P&I, despite Article IV, Section 2 ... but that doesn't seem rational to me.

[Bartholomew Roberts]

I'm not sure that I understand

I am saying Hugh, that because Virginia can discriminate against citizens from other States when it comes to the right to vote, be on a jury, etc , it does not mean that these rights are not a part of the P&I.

If I were less busy, it would be intellectually fun to discuss the point further; but as it is I have to make money at my day job as well as satisfy my intellectual curiousity on the P&I clause. I can either spend that time discussing it with you here or I can spend that time reading the McDonald briefs. I hope you won't take offense that I have decided the McDonald briefs are probably going to better teach me about the P&I clause. I know those briefs certainly will teach someone more than my posts here have :D

[Al Norris]

freonr22, what Bubbles posted was nothing more than the post by David Kopel over at the Volokh Conspiracy.

If Bubbles had done this here, it would have been deleted as a drive-by post. That said, it makes your post also a drive-by post. I'm gonna leave it up, on this one occasion, only because it reinforces exactly what a drive-by is: That is, a post that contains a link or copy & pasted material with no real comments by the person placing the post.

Please everyone, remember this in the future: If you post a link or any cut-n-pasted material, you must give some opinion or discussion about the link or material.

[Tom Servo]

That said, it makes your post also a drive-by post.
So, it's a drive-by of a drive-by. :)

The debate on the Volokh site is worth delving into, though. Orin Kerr (http://volokh.com/2009/11/17/how-many-votes-to-overrule-the-slaughterhouse-cases/) doesn't believe we'll get a majority on PorI, but I find his betting criteria to be a bit glib. Regarding Roberts and Alito, he remarks that he "[doesn’t] think they’re revolutionaries, and the brief calls for a revolution."

The main problem with his arguments is that the Court had an easy out. If they wanted to stick with a narrow path to incorporation, they could have taken the NRA case, which argues for selective incorporation.

The fact that they took McDonald means they're interesting in revisiting the PorI clause, which means taking a hard look at Slaughterhouse. Gura's brief does an wonderful job of proving the deficiencies of the case.

One concern I'm seeing across the board is, "just how broad would such a ruling be, and where will the Court place boundaries?"

David Bernstein (http://volokh.com/2009/11/18/how-id-approach-the-privileges-or-immunities-issue-in-mcdonald/) points out:

So, by deciding McDonald on P or I grounds, the conservatives can (1) help ensure the survival of the individual right to bear arms, and ground it in a much less controversial historical context, while leaving more room for federal than for state regulation of firearms; (2) start the process of transferring liberty jurisprudence from the D.P. Clause to the P or I Clause, which should help undermine Roe v. Wade and other rights with no historical basis as of 1868; and (3) allow some room for the Court to engage in serious review of a very narrow category of abusive economic regulations, along the lines of the cases brought by the Institute for Justice (requiring hairbraiders to take a two-year cosmetology course, creating a government-imposed cartel in funeral caskets, etc.)

[freonr22]

Antipitas, I see your point and apologize, I am/was trying to check out the developments of this case on Calguns, thr.org/and us and here and share the info across the sites for the users. I will structure it better in the future, the only point was to share the info, and I see your point.

[Al Norris]

No prob, freon. We are intentionally more strict than many (most?) other sites. The phrase, "take the high road" which became the name of our sister-site, was coined here, first. We continuously raise the bar here. One of the general goals is: More Signal, Less Noise.

Oh, I have been reading the various threads over at the Conspiracy. Kind of instructive to note the various takes. Also instructive that they have a dopple-ganger in J. Aldridge.

[htjyang]

The dirty little secret about the constitution is that with rare exceptions such as constitutional amendments, it is whatever a majority on the Supreme Court say it is. That's why even if PoI is revived, the ballgame is the same: Win 5 votes. It's just that the arguments are different. Even without PoI, liberal justices have been using substantive due process to invent new rights. I really don't see how things can be any worse. On the other hand, reviving PoI helps discredit substantive due process. Furthermore, if conservatives get to define it, that will restrict any potential abuse by lower courts.

In the mean time, the exciting debate continues. Prof. David Bernstein recommends a way to control PoI which is remarkably similar to my own suggestion (http://volokh.com/2009/11/18/how-id-approach-the-privileges-or-immunities-issue-in-mcdonald/). At the other end of the libertarian scale, Prof. Randy Barnett (the man who argued Gonzalez v. Raich) went all out in defense of PoI (http://volokh.com/2009/11/18/predicting-the-mcdonald/).

I also finished the Rutherford Institute brief and I took away 3 points:

i. One of the points is the same as something I mentioned earlier: It will be very odd if the Court allows the incorporation of other rights but not the right to keep and bear arms.

ii. The brief cited Chicago crime statistics to repudiate the idea that the city's gun control has anything to do with lowering crime.

iii. In order to prevent the Court from assuming that the institute is full of gun nuts who are against any and all regulations, they offered up storage regulations and background checks as what they regard as reasonable. This concession is wise. If the Court concludes that a party before it is a bunch of lunatics, then the case is over.

[RDak]

It does appear that Gura is attempting to put the BOR's into the P&I clause and incorporate them against the States.

IIRC, he mentions that the first eight amendments to the BOR's especially fall under the P&I clause (i.e., when I read his brief).

Very interesting stuff IMHO.

Is it revolutionary. Yes, considering Slaughterhouse has been on the books for so long. But not revolutionary as to fundamental rights IMHO. It was Slaughterhouse that was revolutionary IMHO. But all this boils down to what the framers and writers of the subsequent amendments felt they were doing. Coupled with a review of what has transpired since then as to incorporation.

In the end the SCOTUS will "tell" us the answer.

Once again Al, thanks for the recent link you found by Upham. More reading!! :)

[RDak]

One of the points is the same as something I mentioned earlier: It will be very odd if the Court allows the incorporation of other rights but not the right to keep and bear arms.

ii. The brief cited Chicago crime statistics to repudiate the idea that the city's gun control has anything to do with lowering crime.

Very good points htjyang IMHO.

Chicago imposed their anti-gun statute to reduce crime. That was its purpose. It has failed, as it did in DC, and this very substantial fact was mentioned in the Heller case. I believe this is an important aspect in the McDonald case also.

Why refuse incorporation of a settled fundamental right when the purpose for eliminating that fundamental right has been an abysmal failure?

You can't. And that is why I feel we will win this case hands down. It may only be by a 5-4 margin but so be it.

ETA: I do believe Hugh's overall opinion on this is valid and, therefore, believe the SCOTUS might make a strong point that this ONLY applies to the 2nd Amendment.

[maestro pistolero]

It has failed, as it did in DC, and this very substantial fact was mentioned in the Heller case. Convenient for our side, true, but if rational basis is off the table, it shouldn't matter. It may, however, soothe the occupants of the rational basis closet.

[Hugh Damright]

In my searches for legal arguments on the original Privileges and Immunities clause (Art IV sec 2), I stumbled upon a very good article ... by David Upham.
An interesting read ... his take on the scope of the P&I is informative ... his take on the scope of the related federal powers seems radical to me.

The way he seems to construe it, the original intent (Article IV, Section 2) is to have national privileges and immunities which a State cannot deny to citizens of other States, but can deny to its own citizens. I'm finding it difficult to believe that the States made such a compact.

Again it seems to be the case that a view of Article IV, Section 2 provides the foundation for a view of the 14th Amendment ... if we see the original intent as federal protection of P&I but only if a person traveled interstate ... then we might be inclined to see the 14th as extending this federal protection of P&I to citizens in their own State.

[Al Norris]

Hugh, are you saying the David Upham's take on the P&I clause is radical? Or, are you saying that Justice Washington's definition/explanation of the P&I clause was radical?

Since the "note" was on the totality of the Corfield decision and what it (the P&I clause) meant to the founders (of which Washington was one); since it built upon the jurisprudence of prior cases; since it was the foundation for citizenship in Dred Scott, how was it radical?

[Al Norris]

The second amicus brief, by the New Mexico Paragon Foundation, is in. Find it here (http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/08-1521_PetitionerAmCuParagonFound.pdf).

This brief is simple and to the point. It argues that the 2A is incorporated within the 14th amendments Due Process Clause as a fundamental right.

Of the 9 pages of their argument, they do take a shot at the 7th Circuit for assuming that Federalism protects the right of the States to interfere with a fundamental right:
III. RELIANCE ON FEDERALISM TO VALIDATE LOCAL HANDGUN BANS IS MISPLACED.

Federalism is central to this Republic and dearly important to amicus curiae. However, federalism is a shield for States against the federal government, not a sword for States against fundamental, individual rights. States cannot sacrifice those rights on the altar of federalism.

The argument that federalism validates local ordinances banning handguns is spurious in light of Heller. Heller made clear that the right to keep and bear arms is an individual right, not a collective, State right. As such, federalism does not come into play.

[Tennessee Gentleman]

Al,
Good post. Educated me on the legal usage of federalism in this case. I was nonplused about it before as I couldn't understand what Alexander Hamilton had to do with incorporation.

I do find it laughable when antis use "states rights" to make their arguments but won't support state gun laws like those TN passed saying guns made and sold in TN are free from government regulation.

[maestro pistolero]

Nice, tight little brief. Unfortunate misspelling in the summary of the argument, though. Jeez, have a few people read it before hitting PRINT. :eek:

The court of appeals’ judgment should be re-
versed because the Second Amendment embodies a
pre-existing, fundamental right to keep and bears
arms.

[Bartholomew Roberts]

Haven't been able to read the Paragon brief yet; but I wasn't blown away by the Rutherford brief. I thought they spent too much time on the persuasion aspect and too little on the law.

Having said that, I really like the quoted part of the Paragon brief. That is about as succinct and concise an explanation of both the opposing argument and the reason why it is false as I have seen.

[Al Norris]

I agree about the Rutherford brief, Bart. Then there is this little "gem."

Brief from the Heartland Institute is up, here (http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/08-1521_PetitionerAmCuHeartlandInst.pdf).

Best summarized by:
Petitioners have no right to possess handguns to defend themselves, and police have no legal or constitutional duty to rescue citizens from violence.

The Chicago handgun ban has been completely ineffective in reducing handgun murders. Therefore, it does not advance the public interest, and it ought to be found unconstitutional by this Court.
The Heartland Institute does not specify under which means the Court reverses the 7th Circuit, only that crime control via handgun bans are not just ineffective, but a dismal failure.

[publius42]

Nov 12 on chicagoguncase.com:

Also today we received word that the Brady Center will be filing a brief… in support of neither party. That would have to be filed by the deadline for our amici, which is November 23.

Should be interesting.

[Hugh Damright]

Hugh, are you saying the David Upham's take on the P&I clause is radical? Or, are you saying that Justice Washington's definition/explanation of the P&I clause was radical?

Since the "note" was on the totality of the Corfield decision and what it (the P&I clause) meant to the founders (of which Washington was one); since it built upon the jurisprudence of prior cases; since it was the foundation for citizenship in Dred Scott, how was it radical?

Upham's take on the scope of federal powers created by the P&I clause seems radical to me. It is not clear to me that he is "at one" with the Founders, the jurisprudence of prior cases, the foundation for citizenship in Dred Scott, or even Justice Washington's definition/explanation of the P&I clause.

As summarized on page 28, there were several conflicting precedents to Corfield, but I think we need only concern ourselves with two ... "Courts in four states had affirmed, or at least suggested, that the clause protected certain absolute rights of citizenship" ... while "In three other states and one federal circuit, the strictly antidiscrimination reading was affirmed". This antidiscriminatory reading was asserted by Joseph Story in his Commentaries on the Constitution:

"It is plain and simple in its language; and its object is not easily to be mistaken ...It is obvious, that, if the citizens of each State were to be deemed aliens to each other, they could not take, or hold real estate, or other privileges, except as other aliens. The intention of this clause [Article IV, Section 2] was to confer on them, if one may so say, a general citizenship; and to communicate all the privileges and immunities, which the citizens of the same state would be entitled to under the like circumstances."

In contrast, I think of Bingham's view, that Article IV, Section 2 means that a State cannot violate anyone's P&I ... I consider Bingham's view to be radical, but at least he recognized that there was no federal power to do what he imagined.

Upham goes further and construes Article IV, Section 2 to be a delegation of a federal power to define "privileges and immunities" and a power to protect them, but only when a citizen is in a State other than his own.

Let's put it this way ... in my view, if Virginia banned handguns it would not violate Article IV, Section 2 ... in Bingham's view if Virginia banned handguns it might violate Article IV, Section 2 but it would provide no federal power to intervene ... and in Upham's view, if Virginia banned handguns then Article IV, Section 2 might mean that citizens from other States would be above that law and could carry handguns in Virginia while Virginians could not. I don't think that is what Virginia, nor the Founders, had in mind. And it occurs to me that when the US tried to exercise a judicial power over matters between a citizen of one State and another State, the States gave us the 11th Amendment saying the US judicial power shall not be construed so broadly. I don't see how they intended a system where citizens from other States can come into their State and take them to federal court and come out above their State laws which their own citizens are bound by.

In Dred Scott, Taney seems to have an antidiscrimatory reading in mind ... he talks about the right to enter any state and go where they please, but then he adds "unless they committed some violation for which a white man would be punished" .. he talks about the liberty of speech, and then adds "upon all subjects upon which its own citizens might speak". It kind of seems to me like he is saying what I'm saying, that the intent is to prevent discrimination with regard to the P&I. But then he talks about the right to carry arms everywhere we go, without a qualifier that he means to the same extent as other citizens in that State.

In Coryell, Washington seems to have more of an "inalienable rights" view, but it is not clear to me what federal powers he actually envisioned ... the case regarded discrimination against someone from another State. If Virginia banned handguns, would Justice Washington have ruled that to be a violation of Article IV, Section 2? Would he have ruled that Virginia can ban handguns but citizens of other States can still carry handguns in Virginia? Does that seem radical to anyone but me?


federalism is a shield for States against the federal government, not a sword for States against fundamental, individual rights.

The way I understand it, a federal system is a compact between sovereign States. If the States' compact does not delegate federal jurisdiction over our very rights, our fundamental individual rights, then there is no such federal jurisdiction. It's not as if federalism means that the federal government has undelegated jurisdiction over fundamental, individual rights. The US Government was created for no such purpose. As Federalist 45 explained:

"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.

The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."

[publius42]

Hugh, you were right before the rest of the amendments were incorporated.

That won't be undone. Nor will homegrown wheat for personal use ever be a local or state matter. Reality.

Given that reality, let's use incorporation and the 2nd to mess with the gungrabbers, OK?:p

[Hugh Damright]

Hugh, you were right before the rest of the amendments were incorporated.
I think that's what we're talking about now, Article IV, Section 2 ... the original intent. I said that I found Upham's take on it to be radical. He said that the article in question:

"served as a kind of bill of rights, at least for out-of-state citizens. These citizens were positively entitled to certain absolute rights, notwithstanding state laws to the contrary; they had a right to exemptions from laws imposed by a state on its own citizens."

And also we are questioning what federalism is, saying that it doesn't mean that States can infringe our rights ... so I'm pointing out that federalism does not mean that the central government must have undelegated "liberty jurisprudence" ... Federalist #45 seems to say that in our intended federal system "liberty jurisprudence" remains with each State ... so are we to say that such a system isn't federalism?

If we have a false view of the original intent and federalism, then I don't see how we can arrive at a true view of the 14th Amendment. Or maybe truth isn't important, and it's all a question of how we can construe things to our desired end. But I'm not an activist, so I don't lean that way.

[Al Norris]

While constructing a reasonable reply to Hugh, I noticed that the Brief of the Appellants from the Ninth Circuit Incorporation Case of Nordyke v. King, Madison Society, and Golden State Second Amendment Council in Support of Reversal (http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/08-1521_ReversalAmCuMadisonSocandGoldenState2ndAmendCouncil.pdf) is now up.

Hugh, I'll submit my reply later this evening or tomorrow morning.

[Tom Servo]

Two interesting things pop up in my first reading of the Nordyke appellant brief.

The first is the argument that examinations of the 2A should trigger the same strict scrutiny afforded to other fundamental rights. The Justices in the Nordyke case admitted as much. This coincides nicely with this week's 7th Circuit decision, which is bound to come under consideration.

The second is this:

An opinion in the McDonald case that incorporates the Second Amendment against the states, but which also includes a holding that all laws regulating the “right to keep and bear arms” must be uniform within
each state serves the following functions: (1) Since firearms are ubiquitous, exercising the right to possess firearms should not conflict with the right of intrastate travel11; (2) law-abiding firearm owners need only acquaint themselves with federal and state laws, instead of being held criminally accountable in every town, city, county, and parish they travel through within their state while exercising a fundamental right; and (3) instead of the municipal codes of tens of thousands of cities and counties being subjected to challenges under the Second Amendment, a constitutionally recognized, baseline preemption of “the right to keep and bear arms” that funnels down those challenges to the bodies of law of 50 states plus one federal body of law, strangles the majority of potential lawsuits in their crib

The argument is that we should have a unified, consistent standard of review that would not be subject to local or regional interpretations.

[RDak]

Convenient for our side, true, but if rational basis is off the table, it shouldn't matter. It may, however, soothe the occupants of the rational basis closet.

Maestro, I'm not clear on what you are saying because the 7th Circuit remanded the case back to the lower court to apply intermediate scrutiny for people wanting to own a firearm for hunting purposes. (It would have been strict scrutiny for someone owning a firearm for self defense purposes as you know.)

That places the burden of proof on the government and it must be shown that there is some substantial societal benefit for the prohibition(s).

If the crime reduction statute of the government has not succeeded than intermediate scrutiny, as per the 7th Circuit, would result in the government's failure to show substantial societal benefit wouldn't it?

Wouldn't the SCOTUS also conclude intermediate and strict scrutiny place the burden of proof upon the government?

And, most importantly, we have to hope the SCOTUS goes for strict or intermediate scrutiny, otherwise the government doesn't have to prove their scheme to prohibit firearms ownership had any benefit. (I don't see where rational basis scrutiny is off the table with the SCOTUS.)

Look at it in reverse, if the gun prohibitions of Chicago and DC were very successful in reducing crime, I'd bet we would have a MUCH more difficult road to travel in showing those statutes were unconstitutional.

[Al Norris]

In Coryell, Washington seems to have more of an "inalienable rights" view, but it is not clear to me what federal powers he actually envisioned ...
Hugh, that "inalienable rights" view was in fact the Lockean natural rights view that the founders held.

The antidiscriminatorian view is what supplanted the natural rights view. Since we are talking about original public meaning here, we must necessarily look to the natural rights view and discard the (developing) antidiscriminatory jurisprudence.

Again, we are discussing the rights of citizenship as opposed to the rights of aliens. Another Lockean concept that has been held as valid in English Common Law, both before and after the revolution.

Under Art. IV § 2, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." This was a contracted version of what was said under Article IV of the Articles of Confederation, "The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State, of which the owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any State, on the property of the United States, or either of them."

All this to say that there was an assumed natural citizenship, to which all free men of the colonies held certain inalienable rights in common, that the States could not deny.

The prevailing fear, was that as independent States, that they would begin to treat each other as aliens, and not as the "friends and neighbors" that they had been under English rule. Yes, the Independent States were sovereign under the Confederation, but they were all still one people.

From David Uphams "Notes," pg. 28:
As has been shown, when the case of Corfield v. Coryell came before Justice Washington’s circuit court, several conflicting precedents as to the meaning of the Privileges and Immunities Clause were available. Courts in four states had affirmed, or at least suggested, that the clause protected certain absolute rights of citizenship—including the right to acquire, hold, and convey real property, and the freedom from discriminatory economic regulation and taxation—but not the political rights of citizenship.126 In addition, two of these state courts had noted that the clause also secured the right to security in person and property, both by the government and from the government.127 Courts in two states affirmed that the clause was designed to restrict the federal government.128 In three other states and one federal circuit, the strictly antidiscrimination reading was affirmed.129


126. These states include Delaware, Maryland, Massachusetts, and Virginia. See Douglass’ Adm’r v. Stevens, 2 Del. Cas. 489, 502 (Del. 1819); Campbell v. Morris, 3 H. & McH. 535, 553–54 (Md. 1797); Ainslie v. Martin, 9 Mass. (8 Tyng) 454, 460 (1813); Murray v. M’Carty, 16 Va. (2 Munf.) 393, 398 (1811). For more discussion of these decisions, see supra subparts IV(A), IV(D).
127. Maryland and Delaware. See supra notes 77–89, 114–23 and accompanying text.
128. Delaware and Tennessee. See supra notes 94–95, 114–19 and accompanying text.
129. New York, Kentucky, North Carolina, and the D.C. Circuit. See supra subpart IV(C).

So while the preceeding courts held to slightly different views, the majority however held to the inalienable rights theory. This then, sets the atmosphere for Justice Washington in Corfield.

A careful read of Corfield v. Coryell, one sees that Justice Washington defined a 2 part test on just what composes the privileges and immunities of this national citizenship:

[/quote]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.[/quote]

(1) They belong, of right (and not merely indulgence) to the citizens of all free governments.

(2) They have been enjoyed by the citizens of the several states since independence.

Any of the rights listed within the Federal Bill of Rights that pass those two criteria are of their nature, a privilege and/or immunity as recognized by Art. IV § 2.

As to whatever powers the Federal Government may have had in respect to Art. IV § 2, it was precluded a mere ten years later by Barron. In that case, the Court looked at the Constitution and correctly surmised that nowhere was the central government given a power to enforce the federal rights upon the States, therefore, such rights were entirely federal in nature, and did not apply to the States.

Even so, Dred Scott still recognized those rights of citizenship to include everything that Corfield laid out, and also many of the rights enumerated in the Bill of rights. Dred Scott called these rights, privileges and immunities, several times.

What the Congress was left with, at that time, was that while the privileges and immunities of Art. IV § 2 and the Bill of Rights stated the rights of an assumed federal citizenship that the States were to acknowledge, the central government had no mandate of power to enforce those rights upon the States (Barron).

The purpose (should I say goal?) of the 14th amendment was twofold: First, to overturn Barron v. Baltimore. It achieves this by declaring a national citizenship; That US Citizens have certain privileges or Immunities that the States could not interfere with; Second, to give to the Congress a power they did not until then, have: The power to enforce these rights upon the States.

[Hugh Damright]

the preceeding courts held to slightly different views, the majority however held to the inalienable rights theory.
The assertion that four States affirmed (or at least suggested) that the clause protected certain absolute rights of citizenship, while three States and one federal circuit gave it a strictly antidiscriminatory reading, seems to indicate that the antidiscriminatory reading was the greatest precedent and the only federal precedent.

the central government had no mandate of power to enforce those rights upon the States
Upham said there was such a power, but it only extended to out-of-state citizens. I don't know if you agree or disagree with his assertion that Article IV, Section 2:

"served as a kind of bill of rights, at least for out-of-state citizens. These citizens were positively entitled to certain absolute rights, notwithstanding state laws to the contrary; they had a right to exemptions from laws imposed by a state on its own citizens."

[maestro pistolero]

Maestro, I'm not clear on what you are saying because the 7th Circuit remanded the case back to the lower court to apply intermediate scrutiny for people wanting to own a firearm for hunting purposes. (It would have been strict scrutiny for someone owning a firearm for self defense purposes as you know.)

I think we are mostly agreeing here. Whatever the 7th did regarding intermediate scrutiny is not as significant as the Heller case's dismissal of the use of an interest-balancing approach to weighing a fundamental right.

I'm just saying the fact that their gun ban didn't work for the purpose for which it was ostensibly created, may have a softening effect on those justices who haven't fully cleansed themselves of the notion of using less-than strict scrutiny.

By the way, the Cato (http://www.cato.org/pubs/legalbriefs/chicago_second_am_brief.pdf) brief is in

[RDak]

I see maestro. Nevermind.

Thanks for the Cato link.

[Al Norris]

I see the CATO brief cites David Uphams "Note," pg 23. :D

[Tom Servo]

Pistolero, that link is for their brief from the petition stage. Today's brief is here (http://www.chicagoguncase.com/wp-content/uploads/2009/11/08-1521-tsac-pacificlegalfoundation.pdf).

Academics for the Second Amendment have theirs up here (http://armsandthelaw.com/archives/08-1521%20tsac%20Academics%20for%202nd%20Amerndment.pdf), authored by Olson, Hardy and Cramer. They trace the evolution of the 2A from its 18th century roots to its Reconstruction-era interpretations.

The Congressional brief is here (http://www.nraila.org/media/PDFs/litigation/mcdonald_ac_congress..pdf). 57 Senators (19 Democrats) and 257 Representatives signed on in total. There are no great legal insights we haven't heard in any other briefs, but it does mention an interesting historical point:

At the outset of World War II, Congress authorized the President to seize certain property for the national defense under the Property Requisition Act. The Act explicitly excluded “the requisitioning or. . . registration of any firearms possessed by any individual for his personal protection or sport” and further denied that the Act could be used “to impair or infringe in any manner the right of any individual to keep and bear arms.” p. 29
They also argue that state-level firearms restrictions impede the ability of Congress to call forth militias.

Most of the Senate signatures come from gun-friendly states, but several Representatives from New Jersey and New York have signed on as well.

[Tom Servo]

The Institute for Justice has their brief up (http://www.ij.org/images/pdf_folder/amicus_briefs/mcdonald-ij-amicus.pdf).

Their theme of their brief is that the 14th Amendment was meant to give teeth to the antislavery protections of the 13th, and that the marginalization of the 14th allowed conditions of "constructive servitude" to exist. They ask that the Court look at the whole intent of the Privileges or Immunities clause, and not simply use it only as a mechanism for incorporation:

There is ample historical evidence that the purpose of the Fourteenth Amendment, and particularly the Privileges or Immunities Clause, was not merely to provide for the mechanistic “incorporation” of the first eight amendments (it would have been easy enough to say so), but instead to redress a whole host of laws, practices, customs, and mores whose common purpose was to destroy the ability of newly freed slaves to become self-sufficient members of society. p. 12

They argue that, "the Fourteenth Amendment does not “incorporate” the Second Amendment--It protects the pre-existing right to arms from state and local governments."

[Tom Servo]

Dave Kopel has posted a brief (http://ssrn.com/abstract=1511425) in conjunction with the International Law Enforcement Educators and Trainers Association (ILEETA). The argument is summed up in the first sentence: Guns save lives.

This one isn't about the 14th Amendment at all. Rather, it's an ancillary brief written to underscore the point that firearms in the hands of citizens fulfill a useful purpose, and to rebut claims from the respondents that more lenient gun laws will result in civil disorder.

The brief goes into great detail explaining why blood will not run in the streets if the Court incorporates the 2nd Amendment. Lots of charts, graphs and statistics prove the point, and it's worth noting that the information in this one will be useful long after resolution of the case at hand.

[maestro pistolero]

Pistolero, that link is for their brief from the petition stage. Today's brief is here.

Ah, thanks. the first link stopped working, and I found that one very quickly, thanks for the correction.

[Tom Servo]

As the day winds down, we've got a brief from the American Center for Law and Justice (http://www.aclj.org/News/Read.aspx?ID=3528).

[Al Norris]

Amicus Brief of 32 California Prosecuters (http://www.chicagoguncase.com/wp-content/uploads/2009/11/08-1521tsac_prosecutors.pdf) is in.

Looking now for the Brady Center's brief (Alan Gura has said they intend to file).

ETA: The Brady Campaign does have an announcement that they are filing today, but no links as of yet.

[Tom Servo]

ETA: The Brady Campaign does have an announcement that they are filing today, but no links as of yet.
Since the respondents got an extension, does that mean people filing briefs on their behalf got one as well?

Curiously, there's been almost no mention from the gun-control lobby on this case. I checked Helmke's column on the Huffington Post, and there's nothing.

While I was there, I did a search that had some interesting results. There are at least four dozen articles about Heller, but only one about McDonald. I'm wondering if that means what I think it does.

[Al Norris]

As reported on Gura's website, the Brady Campaign is filing a brief that is neither for the Petitioners nor the Respondents. Because of that, their brief was due today.

Amicus Brief CalGuns Foundation (http://www.hoffmang.com/firearms/McDonald/08-1521-tsac-CalgunsFoundation.pdf) is also in. This Amicus Brief literally destroys Fairman's and Berger's work.... High time, I should think.

[Al Norris]

Just checked back to the ChicagoGunCase site and on the Case Filings (http://www.chicagoguncase.com/case-filings/#SupremeCourt) page, there has been a major update, since I checked last at 7pm. Go to the link above to download any or all of the briefs.

Here are the case filings:

Merits Stage
Petitioners’ Brief
Respondents in Support of Petitioners
Amici Curiae In Support of Petitioners
Cato Institute/Pacific Legal Foundation
Constitutional Law Professors / Constitutional Accountability Center
Center for Constitutional Jurisprudence / Atty Genl. Meese, Dean Eastman
Institute for Justice
CalGuns Foundation (Debunking Fairman and Berger)
Texas and 37 other states
Members of Congress
Goldwater Institute
Academics for the Second Amendment
Law Enforcement Trainers — Failure of Chicago’s gun laws
Professors of Philosophy — Self-defense
Heartland Institute — Failure of Chicago’s gun laws
Nordyke Plaintiffs — Standards of Review
Women Legislators and Academics
Buckeye Firearms Foundation
Maryland Arms Collectors
Rocky Mountain Gun Owners
Jews for the Preservation of Firearms Ownership
Safari Club
State Firearms Associations
NSSF
Eagle Forum
Paragon Foundation
Rutherford Institute
Prosecutors
ArmsKeepers
ACLJ
ACRU
State Legislators
GOA
Amici Curiae in Support of Neither Party
NAACP LDF
Brady Center

[Hugh Damright]

This Amicus Brief literally destroys Fairman's and Berger's work

I disagree ... and I think we might just as well claim that it destroys Upham's work ... the brief says the P&I includes the USBOR, while Upham/Berger said the scope was more narrow ... the brief says that the Civil Rights Act was intended to prevent violations of the USBOR, but Upham/Berger said it was merely antidiscriminatory ... I think it would make more sense to say that Upham's brief literally destroys the Calguns brief.

[Tom Servo]

So, they got theirs up just under the wire. The Brady Campaign brief is pretty much exactly what I expected.

The whole thing is about "reasonable regulation" and "public interest." Without weighing in on incorporation, they simply beg for a standard of review that's as close to rational basis as they can get without calling it such.

They dig pretty deep (Heffron v. International Society for Krishna Consciousness, Inc.?) to prove that strict scrutiny doesn't usually apply across the board for civil liberties, and they seem to encourage such a situation.

If anything, the Left needs to tread very carefully when praising infringements on 1st and 4th Amendment rights.

Their usual arrogance comes through on page 5:

Gun policy is best determined as it always has been in this country: in the political arena, without courts second-guessing reasoned legislative judgments.
I guess they didn't read this week's 7th Circuit opinion, because they rest part of their case on this:

Our society’s broad acceptance of firearms regulations is confirmed by the fact that while over forty states have constitutions with right-to-keep-and-bear-arms provisions, not one reviews such restrictions under heightened scrutiny. p. 22

Oh, and Arthur Kellerman is used as a source. Twice.

The NAACP brief argues against revisiting the Privileges or Immunities clause at all, claiming,

The Court should turn to the largely unexplored Privileges or Immunities Clause of the Fourteenth Amendment only if it first determines that the Second Amendment right to keep and bear arms is not incorporated as against the states through the Due Process Clause. p. 2

They repeatedly claim that there's nothing wrong with selective incorporation, and that it should be kept, as it has not "suddenly proven unworkable." Sure, no problem. Selective incorporation can work, it just takes a hundred years or so sometimes (http://en.wikipedia.org/wiki/Loving_v._Virginia).

Regarding Slaughterhouse and Cruikshank,

While it is undeniable that these cases are part of a dreadful chapter in the history of this nation, they present no bar to incorporation of constitutional rights as against the states under the Due Process Clause. p. 13

I can't help but get the feeling they're being more than just a bit glib about post-Reconstruction harassment and lynching, something that's confirmed a few pages later:

It would be ironic, to say the least, if this Court decides to reexamine the Privileges or Immunities Clause in this case—which involves firearms regulations in a city where, each year, many times more African Americans are murdered by assailants wielding guns than were killed during the Colfax massacre by white insurgents who escaped federal prosecution in Cruikshank. pp. 5-6

They argue that the Court, "should not decide Constitutional questions unnecessary to the resolution of this case," which is a bit disingenuous, since revisiting Priviliges or Immunities is necessary to the resolution at hand.

If this was 1968 or so, do you really think the NAACP would be so content to forestall a rehearing of the 14th Amendment?

[Bartholomew Roberts]

The NAACP is arguing FOR the Slaughterhouse interpretation of the 14th Amendment and against the Privileges and Immunities clause being applied as it was intended by Bingham?

Wow, talk about ironic - especially given the topic at hand. I guess Lochner returning from the dead scares the NAACP leadership even more than Cruikshank being upheld.


many times more African Americans are murdered by assailants wielding guns despite said firearms regulations, which primarily disarm the law-abiding

Fixed it for Brady.

I also like the cowardly way that both opposing amici framed their briefs as "supporting neither party" when they are actually opposition briefs. If you are going to try and deny people what the Supreme Court has stated is a fundamental, individual, civil right embodied in our Bill of Rights, then at least have the nerve to say so. This business about "in support of neither party" is just to give Brady soundbite cover to reporters who are too ignorant to know better.

ETA: OK, to be fair to Brady, they do not like the idea of incorporating the Second; but they really and truly did not oppose it. They just proposed (once again) that the standard of review for protecting it be watered down to the point that it means nothing as a fundamental civil right. I still regard that as quite cowardly; but you can make the case that it isn't opposition to the basic question in the case.

As for NAACP, well it is clear they are no fans of the Second Amendment either; but their brief is really more a "Don't upset the applecart" brief. The NAACP is less concerned about the Second Amendment and more concerned about having a new approach (P&I) to the 14th Amendment put past precedent at risk. they don't really address how P&I is going to do that; they mostly just plead with the Supreme Court not to change things dramatically and helpfully point out that we can resolve this case without ever revisiting the P&I clause. They do not oppose P&I per se. They are just worried about having a nice, well-understood approach to civil rights shaken up by actually giving the 14th Amendment its stated intent.

the brief says the P&I includes the USBOR, while Upham/Berger said the scope was more narrow

Hugh, you don't really think that conflating Upham's note with Berger is a fair comparison of how those two authors look at the 14th Amendment do you? Upham isn't even in the same neighborhood as Berger on that issue.

[publius42]

Wow, the NAACP is in a two step panic over P & I vs Due Process. That's got to be the most ironic thing I have ever seen.

[Bartholomew Roberts]

Well, that is pretty much a slam-dunk for incorporation of the Second through either the Due Process clause or the P&I clause.

Note that nobody even tried to argue anything else - in fact, the Brady Campaign, who has pretty much been at the forefront of legal thinking on ways to subvert the Second Amendment, basically acknowledged that the Second Amendment applied to the States and moved right to the "What standard of review should apply?" question.

To me, there is no question that the Second is going to be incorporated. You might ask "If the case is such a slam dunk, how come we are sitting here with two "no incorporation" rulings and a third vacated ruling?" Of course, the trick here was that neither of the "no incorporation" rulings actually did a due process analysis as required. Instead they relied on Cruikshank rather than risk being controversial. The Ninth Circuit applied the due process analysis used for other civil rights and reached the conclusion that the Second was incorporated. It was only vacated when it became apparent the Supreme Court was going to hear the case.

I'm interested in seeing the opposition brief; because they literally have no leg to stand on. I wonder if they will abandon the question entirely as Brady did and go straight to the standard of review?

The law is about as black and white here as it ever gets in a constitutional law case making it to the Supreme Court. It will be instructive to see which Justices try to claim it is actually gray.

Not to mention the weird angle this case is taking with regards to the P&I clause. This has stopped being about the Second Amendment really. The Second Amendment is going to be incorporated. This is really about building a foundation to undo the New Deal (ironic considering we are in the middle of the New New Deal). Realistically though, I don't see that happening. I am thinking 1-2 votes at most for the P&I clause, although given all the weird confluences of law and politics here, who knows? That is really just a WAG.

I never thought I would see the NAACP arguing against the P&I clause being interpreted in the manner Bingham described; but there you go.

[Al Norris]

You'll perhaps forgive me, but didn't the Brady Campaign make a procedural faux pas?

In all the other briefs, if they were taking an approach that differed slightly from the Question Presented, they never mentioned the Question at all. That was assumed, in their briefs.

Here however, the Brady's pose an entirely new question that the Court never agreed to ask, let alone answer.
QUESTION PRESENTED

Amici curiae will address the following question:

Whether governmental regulations of the exercise of the Second Amendment right are subject to strict scrutiny, or whether such regulations are subject to a more deferential standard of review for reasonableness.
In all of the cases I have read since 2004, I have never seen an amicus brief pose to the Court a different Question, unless it was at Cert stage. Certainly, it hasn't happened at the Merits stage.

[Bartholomew Roberts]

I am not up on SCOTUS procedure; but I believe Amicus briefs have to comply with Rule 24, which says: "the brief may not raise additional questions or change the substance of the questions already presented."

The Court can still consider a question evident from the record and within its jurisdiction to decide though. Still, not exactly a great way to start off IMO. :D

[Tom Servo]

OK, to be fair to Brady, they do not like the idea of incorporating the Second; but they really and truly did not oppose it.
Helmke said a few weeks ago that, even if the Court found for incorporation, they were confident they could still preserve "reasonable regulations." They've already accepted the inevitable. Their brief is just an attempt at damage control.

Realistically though, I don't see that happening. I am thinking 1-2 votes at most for the P&I clause, although given all the weird confluences of law and politics here, who knows?
If SCOTUS wanted to avoid the PorI question, they could have taken the NRA case, which was solely about Due Process. At least four Justices voted to hear this one, though, which makes me think there's some interest in revisiting Slaughterhouse.

[Bartholomew Roberts]

Hmmm, I hope Brady didn't pay money for that brief. In addition to presuming to tell the majority in Heller what their dicta about "presumptively lawful" meant with regards to standard of review, they played spent a lot of time opining without even trying to back up their comment with a cite - which says a lot given the amount of half-assed, debunked research they do cite.

I like how they cited research concluding that higher firearms ownership = higher gun crime without mentioning that the author used Guns & Ammo subscriptions as a proxy for gun ownership. Then of course a host of the usual suspects cited.... Bogus, Saul Cornell, Kellerman.

I'm glad there was the ILEETA brief and other briefs from our side challenging some of this - though those briefs wisely focused on Chicago instead of being more general as the Brady brief was.

Overall, I'm glad Brady didn't do a better job. They didn't have much to work with but they sure did manage to make a mess of what they had.

[Bartholomew Roberts]

As far as votes for P&I goes, I think Orin Kerr had a good point that none of the left leaning Justices are interested in reviving Lochner. Like I said though, just a WAG on my part. There are so many angles to revisiting P&I.

[Tom Servo]

Overall, I'm glad Brady didn't do a better job. They didn't have much to work with but they sure did manage to make a mess of what they had.
The more I consider it, the less I think that the Brady Campaign really wants to be involved in this case. It's a surefire loser for them.

Of course, they're expected to throw their hat in the ring, so they made a half-hearted attempt. So half-hearted, in fact, that they don't even address the primary question presented.

I find the whole situation particularly amusing, given that I met a couple of those guys back in the 1990's, and they were insufferably arrogant back then. I'm feeling a certain sort of schadenfreude watching them fumble for any sort of relevance now.

The count stands at 30 briefs for the petitioners, 2 (dubiously) unaligned, and 0 for respondents. Things have got to be feeling fairly desperate around Oak Park these days.

I think Orin Kerr had a good point that none of the left leaning Justices are interested in reviving Lochner.
The specter of Lochner is going to hover over any discussion of PorI. Only time will tell how relevant a concern that is.

[publius42]

Dubiously unaligned is right.

I thought the NAACP one could at least plausibly claim to be unaligned, though it does nothing but oppose Gura's central point about P&I.

The Brady one was clearly in support of one side and afraid to admit it. It will embarrass part of the Supreme Court and irritate another part, IMO.

Incorporation does appear inevitable at this point, probably the due process flavor because while the NAACP supporting racist Reconstruction Era precedents is certainly ironic, they do articulate some reasons for that approach that seem reasonable.

[RDak]

That's a very good point Al.

I have never seen a formal brief start with a question that wasn't what the SCOTUS stated was being addressed in the first place.

That is weird.

What happens now? Does the SCOTUS just reject it?

I mean, can I now file a formal brief saying, "whether automatic weapons can be outlawed under reasonable scrutiny?"

ETA: And guys/gals, Al is correct, that is how the question is framed in the Brady brief. :confused:

http://www.chicagoguncase.com/wp-content/uploads/2009/11/08-1521acbrady.pdf

[Al Norris]

I like the way everallm put it (this (http://www.thehighroad.us/showpost.php?p=5198770&postcount=46) post over at thr.us)
The SC has a few pet peeves....amongst other items, they don't like

Being lectured to
Briefs that ignore the question posed by the SC
Having the SC's own findings misquoted
Arguments based on opinion, supposition and discredited sources
Quoting yourself or or your organization as a reliable source
Arguments that imply you and not the SC are more appropriate to interpret Constitutional law
Arguments that state Constitutional law should not be changed as it would change existing law


All of which the Brady brief hit.........:barf:
Assuming that anyone actually reads the brief, it will be ignored. Despite the filing for neither side, it is decidedly in Chicago's camp.

[Al Norris]

For those keeping track, there are 31 briefs in support of McDonald and 2 briefs in support of neither party (the earlier referenced ABA website has one more brief than the ChicagoGunCase website:

Amicus Briefs in Support of Petitioners
Brief of the Rutherford Institute in Support of Petitioners
Brief of the Paragon Foundation, Inc., in Support of Petitioners
Brief of the Heartland Institute in Support of Petitioners
Brief of the Appellants from the Ninth Circuit Incorporation Case of Nordyke v. King, Madison Society, and Golden State Second Amendment Council in Support of Reversal
Brief for the CATO Institute and Pacific Legal Foundation in Support of Petitioners
Brief for Buckeye Firearms Foundation Inc., in Support of Petitioners
Brief for State Legislators in Support of Petitioners
Brief for Professors of Philosophy, Criminology, Law, and Other Fields in Support of Petitioners
Brief for Senator Kay Bailey Hutchinson, Senator Jon Tester, Representative Mark Souder, Representative Mike Ross, and 56 Additional Members of the United States Senate and 249 Additional Members of the United States House of Representatives in Support of Petitioners
Brief for the Foundation for Moral Law in Support of Petitioners
Brief for the National Shooting Sports Foundation, Inc. in Support of Petitioners
Brief for Jews for the Preservation of Firearms Ownership (reprint)
Brief for Arms Keepers in Support of Petitioners
Brief for Academics for the Second Amendment in Support of Petitioners
Brief for the Center for Constitutional Jurisprudence in Support of Petitioners
Brief of the American Center for Law and Justice in Support of Petitioners
Brief for the Maryland Arms Collectors' Association, Inc. in Support of Petitioners
Brief for the Calguns Foundation, Inc. in Support of Petitioners
Brief for Thirty-Four California District Attorneys; Eight Nevada District Attorneys; Graham County, Arizona, Former Sheriff Richard Mack; Mendocino County, California, Sheriff Thomas D. Allman; Tehama County, California, Sheriff Clay D. Parker; California Rifle and Pistol Association Foundation; Long Beach Police Officers Association; San Francisco Veterans Police Officers Association; Arizona Citizens Defense League; Texas Concealed Handgun Association; Virginia Citizens Defense League; and Bloomfield Press in Support of Petitioners
Brief for the American Legislative Exchange Council in Support of Petitioners
Brief for the Goldwater Institute Scharf-Norton Center for Constitutional Government and Wyoming Liberty Group in Support of Petitioner (reprint)
Brief for the Institute for Justice in Support of Petitioners
Brief for the Safari Club International in Support of Petitioners
Brief for Gun Owners of America, Inc., Gun Owners Foundation, Gun Owners of California, Inc., Maryland Shall Issue, Inc., DownsizeDC.org, Conservative Legal Defense and Education Fund, the Lincoln Institute for Research and Education, U.S. Border Control, and U.S. Border Control Foundation in Support of Petitioners
Brief for Eagle Forum Education and Legal Defense in Support of Petitioners
Brief for the International Law Enforcement Educators and Trainers Association (ILEETA), International Association of Law Enforcement Firearms Instructors (IALEFI), Southern States Police Benevolent Association, Texas Police Chiefs Association, Law Enforcement Alliance of America, Congress of Racial Equality, the Claremont Institute, Professors Carlisle E. Moody, Roy T. Wortman, Raymond Kessler, Gary Mauser, Dr. Sterling Burnett, and the Independent Institute in Support of Petitioners
Brief for Women State Legislators and Academics in Support of Petitioners
Brief for the States of Texas, Ohio, Arkansas, Georgia, Alabama, Alaska, Arizona, Colorado, Florida, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maine, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming in Support of Petitioners (corrected)
Brief for Rocky Mountain Gun Owners and National Association for Gun Rights in Support of Petitioners
Brief for Constitutional Law Professors in Support of Petitioners
Brief for the American Civil Rights Union, Let Freedom Ring, Committee for Justice, and the Family Research Council in Support of Petitioners
Amicus Briefs in support of Neither Party
Brief for the NAACP Legal Defense and Educational Fund, Inc. in Support of Neither Party
Brief for the Brady Center to Prevent Gun Violence, the International Association of Chiefs of Police, the International Brotherhood of Police Officers, and the National Black Police Association in Support of Neither Party

[Tom Servo]

Assuming that anyone actually reads the brief, it will be ignored. Despite the filing for neither side, it is decidedly in Chicago's camp.
Just got an interesting email from someone in the loop that raised the question: why isn't Seth Waxman's (http://rkba.org/federal/doj/waxman-emerson.html) name on this? Wilmer Cutler Pickering Hale and Dorr submitted the brief, and he's a partner there.

Waxman was Clinton's Solicitor General during our darkest hours in the late 1990's, and it's odd that his imprint is absent.

Another observation: every state that seceded from the Union signed on to the Texas Attorney General's brief.

After a good night's sleep and some Maalox, I've been rereading the NAACP brief, and one of their arguments against going the PorI route comes down to "judicial restraint." They suggest:

Against this backdrop, it is likely that a decision by the Court altering the textual source of incorporated rights would bring less, rather than more clarity, to Fourteenth Amendment law.

They suggest that a rereading of PorI could throw precedents based on Due Process into limbo, but there are ways in which the two could coexist.

Could we end up with two coeval doctrines, one based on PorI that specifically protects rights enumerated by the Constitution, and one based on Due Process that protects rights implied by its spirit?

He may have been an irascible, vain, racist coot, but McReynolds had a point about the merits of Due Process in Meyer v Nebraska:

Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

It could be a way to avoid Bride of Lochner.

[publius42]

Think about it: if Brady had written a really powerful brief for the other side, they would stand to lose tax exemption and we would hang them with their arguments (which aren't popular with the public) for years. They took an obligatory lame swing and are hoping no one notices, and it was just lame enough that no one will.

The NAACP is terrified of Privileges and Immunities, but it may be something they should not fear so much. They're worried about all the due process law, but what happens to it if the 2a is decided on P&I grounds?

I was rereading the Stevens dissent in Heller last night. Much of it is now moot and will not be considered, unless the Court decides to overturn Heller. Not all of it. He makes a good point:

The centerpiece of the Court’s textual argument is its
insistence that the words “the people” as used in the Sec-
ond Amendment must have the same meaning, and pro-
tect the same class of individuals, as when they are used
in the First and Fourth Amendments. According to the
Court, in all three provisions—as well as the Constitu-
tion’s preamble, section 2 of Article I, and the Tenth
Amendment—“the term unambiguously refers to all mem-
bers of the political community, not an unspecified sub-
set.” Ante, at 6. But the Court itself reads the Second
Amendment to protect a “subset” significantly narrower
than the class of persons protected by the First and Fourth
Amendments; when it finally drills down on the substan-
tive meaning of the Second Amendment, the Court limits
the protected class to “law-abiding, responsible citizens,”
ante, at 63. But the class of persons protected by the First
and Fourth Amendments is not so limited; for even felons
(and presumably irresponsible citizens as well) may in-
voke the protections of those constitutional provisions.
The Court offers no way to harmonize its conflicting pro-
nouncements.


He's right, and how do you articulate a standard of scrutiny without harmonizing those conflicts? How do you do it without screwing with the prior due process decisions, as the NAACP fears?

Maybe by defining a privilege or immunity for the first time, and making clear it has a unique nature?

[KyJim]

This is hopefully only a small side trip as I certainly don't want to hijack this thread.
You'll perhaps forgive me, but didn't the Brady Campaign make a procedural faux pas?

In all the other briefs, if they were taking an approach that differed slightly from the Question Presented, they never mentioned the Question at all. That was assumed, in their briefs.

Here however, the Brady's pose an entirely new question that the Court never agreed to ask, let alone answer. . . .

I am aware of a recent oral argument where counsel argued a different question than that presented in the petition. Needless to say, the justices were not amused. Nevertheless, there is some thought that some of the justices might ignore the apparent procedural error.

When a state prisoner brings a federal habeas corpus petition, the federal court is directed by the Antiterrorism and Effective Death Penalty Act (AEDPA) to defer to state courts' decisions unless (1) they have unreasonably applied controlling federal precedent or (2) unreasonably determined the facts of the case. In Wood v. Allen, the petition for the state prisoner posed a question about unreasonable application and then proceeded to argue an unreasonable determination of the facts (intermeshed with unreasonable application). A fuller description is at http://www.crimeandconsequences.com/crimblog/2009/11/morphing-the-question-presente.html and a transcript can be found online.

The underlying question involved ineffective assistance of counsel in a death penalty case and, therefore, there is a possibility that some on the court might ignore the procedural faux pas. If so, then the Brady brief might make some tactical sense. Ignore what is likely to be a losing proposition and, instead, focus on the standard of review to emasculate the effect of a ruling incorporating the 2nd Amendment.

[RDak]

Publius, Stevens diatribe is a red herring IMHO.

The 19th Amendment allows women to vote. Yet, convicted felons cannot vote. So would it be ok for an area to totally prohibit someone from voting? Of course not, even though we would be carving out what Stevens weakly calls a limited protected class.

You could reverse Stevens statement and state that the 2nd Amendment carves out unprotected classes of people who happen to be felons.

In essence, IMHO, Stevens is grasping at straws to justify his weak position.

To call law abiding citizens a protected class when all it means is convicted felons do not fall under that right is a red herring with no logical "teeth" IMHO.

I mean, no logical thinking person would say prohibiting convicted felons (violent felons) from owning firearms creates, by its very prohibition, a protected law abiding class. That prohibition does not create a limited protected class of law abiding citizens. What the felon did was remove himself/herself from the citizenry at large by their serious criminal acts. They become the unprotected class. Stevens reverses this fact in support of his weak position IMHO.

In other words, it is a stupid analogy by Stevens IMHO. An analogy mentioned by Stevens because, at his core belief, firearms ownership should be prohibited for private individuals.

[Al Norris]

RDak, until the GCA of 1968, felons, violent or otherwise, had no Federal Firearms Disability. A mere 40 years ago, someone who had served their sentence could own just about any firearm they wanted. They were not bound by the State they lived in, as to where they purchased a firearm. There were no form 4473's, let alone NICS checks.

[RDak]

I understand Al.

My point was Stevens seems to say that carving out felons creates a law abiding protected class while, to me, everyone is protected until someone commits a felony. He has it in reverse IMHO.

To use Steven's analogy as justification for prohibiting a law abiding citizen from ever owning a firearm is a stretch of logic that, IMHO, is a very weak argument.

Stevens also states that by prohibiting felons (and the insane I assume) from firearms ownership this fact "significantly narrows the right to a narrow subset". This simply a red herring IMHO.

Normal ordinary folks are not convicted felons and/or insane. All the restriction does is remove those types of individuals from 2nd Amendment protection. It does not create a significantly narrow protected subset IMHO.

You are correct though about the 1968 GCA (and I don't agree with the 1968 GCA in many, many ways but Stevens overstates the effect of removing convicted felons and the insane to "insane" levels IMHO).

[ReelinRod]

RDak wrote:

My point was Stevens seems to say that carving out felons creates a law abiding protected class while, to me, everyone is protected until someone commits a felony. He has it in reverse IMHO.

To use Steven's analogy as justification for prohibiting a law abiding citizen from ever owning a firearm is a stretch of logic that, IMHO, is a very weak argument.

Isn't Steven's dissent position in Heller at odds with the majority opinion in Lewis (which Stevens joined)?

The Court, in inspecting the legislative history of § 1202(a)(1) quoted a framer as being instructional. Justice Blackmun wrote (emphasis added):

"What little legislative history there is that is relevant reflects an intent to impose a firearms disability on any felon based on the fact of conviction. Senator Long, who introduced and directed the passage of Title VII, repeatedly stressed conviction, not a "valid" conviction, and not a conviction not subject to constitutional challenge, as the criterion. For example, the Senator observed:

'So, under Title VII, every citizen could possess a gun until the commission of his first felony. Upon his conviction, however, Title VII would deny every assassin, murderer, thief and burglar of the right to possess a firearm in the future except where he has been pardoned by the President or a State Governor and had been expressedly authorized by his pardon to possess a firearm.' 114 Cong.Rec. 14773 (1968). See also id. at 13868, 14774. Inasmuch as Senator Long was the sponsor and floor manager of the bill, his statements are entitled to weight."

So yes, the felony conviction removed the felon from the general protected class that encompasses the mass of the citizenry which Scalia casually described as, “law-abiding, responsible citizens.”

Stevens is being disingenuous in his Heller dissent.

[Al Norris]

My bad, RDak. I don't know why I didn't see that the first time around ... Unless Justice Stevens has had a change of mind and wants to narrow the scope of which felonies should enable the disability? (not holding my breath on that meaning)

[RDak]

No problem Al. You've forgotten more of this stuff than I will ever know for pete's sake.

Al, just your opinion, how do you think McDonald will play out?

Reelin' Rod: EXCELLENT find!! Stevens does appear to be talking out of both sides of his mouth doesn't he?

[Al Norris]

RDak, my opinion is worth every bit of what you've paid for. :rolleyes:

I agree with most pundits. We will get incorporation. It's the matter of which type of incorporation that my crystal ball is foggy about.

There are several other things I think the Court may do, depending upon how much consensus Justice Thomas and Scalia can build. If they go for a straight forward Due Process incorporation, striking down the Chicago laws, but still hanging back on the type of scrutiny (the recent 7th Circuit case - US v. Skoien - will be the factor here - rational basis is off the table, but intermediate and strict scrutiny will depend upon the case), then I foresee a 9-0 decision.

A lot depends upon the internal politics of the Court and what arguments Chicago (and friends) might bring to bear.

[htjyang]

The judgment will be 5-4 because the liberal justices will want to uphold the Chicago codes. The reasoning might enjoy a larger majority because some of the liberals might want an expansive PoI Clause. If it is the old fashioned Due Process incorporation then that will maintain the status quo and liberals have less of an incentive to join.

I've been thinking about the issue of scrutiny and Heller lately. Most commentators seem to assume that the reason why the Court did not decide on a scrutiny standard was because the majority was divided. An alternative theory came to me the other day and I would like to share with you all:

1. Perhaps the majority wish to divide the 2nd Amendment under 2 categories. Those rights that can be covered by originalism will get strict scrutiny protection. Those rights that cannot be justified by originalism and are of more recent development (such as issues involving silencers and machine guns) will get intermediate scrutiny protection.

Perhaps that's why the majority could not decide on a single standard. They don't want a single standard.

2. It may also be possible that the Court intends to give rational basis test some teeth. Generally, it is thought of as a blank check for the government. But the majority stated that an outright ban fails all levels of scrutiny. That suggests that it fails even the rational basis test.

The libertarian Institute of Justice is filing a constitutional challenge to the National Organ Transplant Act. (See part 1 (http://volokh.com/2009/11/02/ijs-bone-marrow-case-an-intro/), part 2 (http://volokh.com/2009/11/03/ijs-bone-marrow-case-history-of-nota/), part 3 (http://volokh.com/2009/11/04/ijs-bone-marrow-case-rational-basis-test/), part 4 (http://volokh.com/2009/11/05/ijs-bone-marrow-case-judical-engagement-not-activism/), and part 5 (http://volokh.com/2009/11/06/ijs-bone-marrow-case-wrapping-up/)) I know that this doesn't relate directly to firearms. But the argument being used is quite fascinating. If they prevail (which I seriously doubt), it will have significant impact on constitutional law in general and may indirectly impact future court rulings on gun control legislation. Their argument on rational basis test (see part 3) also seems tailored to encourage the courts to strengthen the rational basis test. Perhaps Heller is heralding an era in which the courts take rational basis test more seriously?

If so, it will be very interesting if decades from now when the 2nd Amendment is no longer being disputed, when the Bradyites have been reduced to a historical footnote, Heller might be less remembered for defining the 2nd Amendment and more remembered as the beginning of the courts' effort to enforce the rational basis test.

From this perspective, perhaps the foundation of the dispute between the majority and the minority lies in the fact that the minority foresaw the possibility of a strengthened rational basis test and recognized what it will mean for government legislation in general.

[ReelinRod]

htjyang wrote:

1. Perhaps the majority wish to divide the 2nd Amendment under 2 categories. Those rights that can be covered by originalism will get strict scrutiny protection. Those rights that cannot be justified by originalism and are of more recent development (such as issues involving silencers and machine guns) will get intermediate scrutiny protection.

The 7th just came out with a decision applying intermediate scrutiny to a § 922(g)(9) misdemeanor domestic violence conviction disability. Intermediate was chosen because the defendant was in possession of a shotgun (actually in his vehicle) after deer hunting. His claim then was not armed self defense as affirmed in Heller but a 2nd Amendment protected right to hunt.

The court explained this two tier scrutiny it thinks applies:

". . . we read Heller as establishing the following general approach to Second Amendment cases. First, some gun laws will be valid because they regulate conduct that falls outside the terms of the right as publicly understood when the Bill of Rights was ratified. If the government can establish this, then the analysis need go no further. If, however, a law regulates conduct falling within the scope of the right, then the law will be valid (or not) depending on the government’s ability to satisfy whatever level of means-end scrutiny is held to apply; the degree of fit required between the means and the end will depend on how closely the law comes to the core of the right and the severity of the law’s burden on the right.

So constitutional text and history come first, then (if necessary) an analysis of the public-benefits justification for the regulation follows.3 If the first inquiry into the founding-era scope of the right doesn’t resolve the case, then the second inquiry into the law’s contemporary means-end justification is required."

Interestingly (especially with the amount of attention it is getting from gun control advocates) the government apparently based its entire justification on Heller's "presumptively lawful" wording; a path not much accepted by the court.

"The government has approached this case as though all it had to do to defend the constitutionality of § 922(g)(9) is invoke Heller’s language about certain “presumptively lawful” gun regulations—notably, felon-dispossession laws. Not so. Heller held that the Second Amendment secures an individual natural right to possess firearms for self-defense; the opinion’s reference to exceptions cannot be read to relieve the government of its burden of justifying laws that restrict Second Amendment rights. Although Heller did not settle on a standard of review, it plainly ruled out the deferential rational basis test; this leaves either strict scrutiny or some form of “intermediate” review. On the facts of this case, we hold that intermediate scrutiny applies. In its usual formulation, this standard of review requires the government to establish that the challenged statute serves an important governmental interest and the means it employs are substantially related to the achievement of that interest. . . .

Under intermediate scrutiny, the government need not establish a close fit between the statute’s means and its end, but it must at least establish a reasonable fit. The government has done almost nothing to discharge this burden. Instead, it has premised its argument almost entirely on Heller’s reference to the presumptive validity of felon-dispossession laws and reasoned by analogy that § 922(g)(9) therefore passes constitutional muster. That’s not enough."

UNITED STATES OF AMERICA v. STEVEN M. SKOIEN (http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=08-3770_002.pdf)

[Tom Servo]

Interestingly (especially with the amount of attention it is getting from gun control advocates) the government apparently based its entire justification on Heller's "presumptively lawful" wording; a path not much accepted by the court LOL.
The actual wording was,
Instead, it has premised its argument almost entirely on Heller’s reference to the presumptive validity of felon-dispossession laws and reasoned by analogy that § 922(g)(9) therefore passes constitutional muster. That’s not enough.
As the young people say, "pwned."

By Justice Syke's logic, laws infringing on the right to keep arms for self-defense would be subject to strict scrutiny. Stuff that falls outside original intent would receive intermediate scrutiny. Rational basis was taken off the table in Heller, and she confirms it here.

So, bans on "assault rifles" would fail, because those are militia weapons "in common use." Likewise, we could see the "sporting purpose" designation thrown out as well.

In terms of right-to-carry, things could get interesting. Open carry could be argued to deserve strict scrutiny, while concealed carry would have to survive intermediate scrutiny. Even in the second case, the burden lies on the government to prove "contemporary means-end justification."

Such justification can easily be dismantled by statistics.
It may also be possible that the Court intends to give rational basis test some teeth. Generally, it is thought of as a blank check for the government.
They tried that with Kelo (which the Brady brief cites as good law), and I'd hope they learned their lesson. In any case, I think rational basis is out of the question for the 2A from here out.

[RDak]

RDak, my opinion is worth every bit of what you've paid for.

I agree with most pundits. We will get incorporation. It's the matter of which type of incorporation that my crystal ball is foggy about.

There are several other things I think the Court may do, depending upon how much consensus Justice Thomas and Scalia can build. If they go for a straight forward Due Process incorporation, striking down the Chicago laws, but still hanging back on the type of scrutiny (the recent 7th Circuit case - US v. Skoien - will be the factor here - rational basis is off the table, but intermediate and strict scrutiny will depend upon the case), then I foresee a 9-0 decision.

A lot depends upon the internal politics of the Court and what arguments Chicago (and friends) might bring to bear.

Thanks for your opinion Al. All of it makes sense.

As for me, I think we'll get incorporation.

What will be the SCOTUS vote? I simply do not know. (I tried to predict Heller and thought it would go 7-2 at worst. I was TOTALLY wrong.)

I believe strict scrutiny will apply to the general right to own a firearm that is in common use and intermediate scrutiny will apply to all other firearm rights. But, once again, this is a WILD guess.

In the end, I simply don't know. But I am as excited as heck to eventually read McDonald since I, like all of you, have been waiting for the major portion of my adult life for cases like Heller and McDonald to make it to the SCOTUS.

ETA: I don't know if McDonald will even get into the scrutiny area?

[Tom Servo]

I, like all of you, have been waiting for the major portion of my adult life for cases like Heller and McDonald to make it to the SCOTUS.
After seeing things hit rock bottom in the 1990s, I didn't expect to see these kind of victories in our lifetime. I'd expected small, hard-fought, strictly specific and incremental challenges over a long period of time.

If you'd told me in 1995 that we'd win an individual-rights interpretation and incorporation in the space of two years, I would not have believed you.

Sometimes it's good to be proved wrong. :)

I don't know if McDonald will even get into the scrutiny area?
I don't see a way of incorporating without establishing a standard of scrutiny.

[Bartholomew Roberts]

ETA: I don't know if McDonald will even get into the scrutiny area?

The Court may decide to let the different lower courts develop their own standards and see what works best before stepping in; but I think most will be looking for some additional guidance on scrutiny.

The downside is while there may be widespread agreement on incorporation, I am betting that the standard of scrutiny is going to be hotly debated. Justice Kennedy is likely to once again end up in the driver's seat in determining what scrutiny applies.

[Yellowfin]

1. Perhaps the majority wish to divide the 2nd Amendment under 2 categories. Those rights that can be covered by originalism will get strict scrutiny protection. Those rights that cannot be justified by originalism and are of more recent development (such as issues involving silencers and machine guns) will get intermediate scrutiny protection. Best result would be that they would do away with the altogether idiotic treatment of silencers entirely. They're hearing safety equipment, for goodness sake. You're required by law to have one on your car, and if I recall correctly, your lawnmower. Many countries either completely do not regulate them or even require them. If in more common use, they could resolve the problem of firing ranges getting shut down because of noise complaints. They would certainly make firearms more friendly to newcomers--we DESPERATELY need that in many states where the average age of firearm ownership is seriously too high.

The law attached to suppressors is arcane, archaic, irrational, and quite frankly stupid. I'm really hoping the courts can scrap it within a couple of years because it is the product of one of the worst laws in US history and maintained by nothing more than absurd and one sided misinformation and superstition.

[maestro pistolero]

No kidding, imagine if we all had to drive with ear muffs on. That would be quite a sight.

[Tom Servo]

The law attached to suppressors is arcane, archaic, irrational, and quite frankly stupid. I'm really hoping the courts can scrap it within a couple of years because it is the product of one of the worst laws in US history and maintained by nothing more than absurd and one sided misinformation and superstition
Agreed, but we're still in that one-step-at-a-time process. Heller laid a great deal of groundwork, and this case will help cement that.

Essentially, Heller acknowledged that the right to keep and bear arms was fundamental. The NFA is a tax on that right. If we apply prior precedent, the NFA is plainly unconstitutional. See Harper v. Virginia State Board of Elections, which ruled poll taxes unconstitutional, or Minneapolis Star v. Minnesota Commissioner of Revenue, a case that ruled a Minnesota tax on ink and paper to be an unfair abridgment of freedom of the press.

We'll get there.

Oh, and oral arguments are Tuesday, March 2, 2010 at 10:00 a.m.

[ilbob]

P&I seems inherently more limiting on the scope of rights that are protected, but protects them more fully.

DP seems to allow whatever justice can get 5 votes to make up any right he/she so chooses.

P&I would be nice because it logically leads to a requirement that states bring back grand jury and civil jury protections that have been eliminated in some states.

OTOH, the courts have somehow found it acceptable to emasculate the 4th and 5th amendments. They may well find ways to do the same to the second if they incorporate it.

[Al Norris]

For those of you following the threads over at the Volokh Conspiracy, Alan Gura has answered Prof. Kerr, late Sunday night (http://www.chicagoguncase.com/2009/11/29/we-get-questions/):
We understand that not everyone will agree with our position in this case. For example, we expect that Chicago’s attorneys will present some alternative constitutional vision that supports their desired outcome. May the more persuasive argument (ours, I should hope) prevail.

But not everyone agrees that the case should or would be based upon the Supreme Court’s views of the law. Prior to the D.C. Circuit’s decision in Parker/Heller, that case was met by many rolled eyes and deep, knowing sighs by Very Smart People. The skepticism had nothing to do with the merits of the arguments on either side, which were entirely beside the point. Simply put, the Second Amendment wasn’t going to be revived because the courts wouldn’t feel like going there.

So I wasn’t too surprised to see this point of view pop up in reaction to the McDonald case. Prof. Kerr cynically predicted (http://volokh.com/2009/11/16/petitioners-brief-in-mcdonald-v-city-of-chicago-the-second-amendment-incorporation-case/) we’d get wiped out 8-1 on the Privileges or Immunities claim – that’s the one based on the actual text and original public meaning of the Fourteenth Amendment – because the justices wouldn’t feel like interpreting the Constitution. Prof. Barnett capably responded (http://volokh.com/2009/11/18/predicting-the-mcdonald/) to that claim, so I didn’t see the need to do so here.

But now, Prof. Kerr has asked (http://volokh.com/2009/11/23/cato-brief-in-mcdonald-v-chicago/#comment-692715) the following set of questions in a discussion thread about the Cato Institute’s amicus brief:

It’s interesting to me that the Cato brief is based on original intent originalism rather than original public meaning originalism. That is, it is based on what the drafters wanted the 14th Amendment to do, rather than what the 14th Amendment was understood by the public to mean (or perhaps more specifically, what the words of the 14th Amendment were understood to mean by the public at the time). Do we have any good historical sources on what the public understood the P or I clause to mean at the time? If so, what do they suggest? If not, do we have reason to believe that the public knew what the authors of the 14th Amendment intended? I don’t know how widely the debates over the meaning of P or I were distributed around the country at the time. Does anyone know?

Of course, had Prof. Kerr actually read our brief (http://www.chicagoguncase.com/wp-content/uploads/2009/11/08-1521ts.pdf), he’d have seen that we devote a significant portion of it to answering just these questions.

Failure to read the pleadings carefully enough to grasp the points they seek to make leads to some frankly bizarre questions. I’d like to respond to two such questions about our approach in this case. First, some people wonder why our Privileges or Immunities argument needs to define that provision any broader than the actual Second Amendment right at issue. The answer is dictated by logic. While we cannot define the full scope of every right secured by the Fourteenth Amendment, and have no interest in doing so, neither can we show that the right to arms fits within the Privileges or Immunities Clause without first discussing what sort of rights are embodied by that provision. It’s worth mentioning that self-defense is a natural pre-existing right, and consequently the right to arms would be a Privilege or Immunity of American citizenship even if the Second Amendment did not exist.

Second, some have asked if we’re needlessly straying from our mission in seeking to have The SlaughterHouse Cases overturned. No. While overruling SlaughterHouse is a worthy goal in and of itself, doing so is necessary to secure meaningful Second Amendment rights against state infringement under the Privileges or Immunities Clause.

We believe that the Second Amendment guarantees a fundamental right rooted in the ancient right of self-defense and self-preservation. I’ve worked very hard advancing just that view in Heller. But if the Second Amendment is merely some construct of national citizenship, a claim upon the federal government that grows out of the government’s existence, a right conferred by the government which wouldn’t exist in the government’s absence and which looks an awful lot like a rule of pre-emption, it isn’t much of a right at all. The “Save SlaughterHouse” arguments are not merely untenable as a matter of law, they suggest a very weak Second Amendment right that does us no good. We don’t believe that self-defense is an interest at the level of visiting the sub-treasuries in Washington, D.C. Since SlaughterHouse has no positive value anyway, it is hardly inconsistent with the interests of organizations focused primarily on vindicating gun rights to seek that precedent’s demise. Indeed, it should not be surprising that any litigant whose interests are served by a faithful reading of the Constitution would seek to have overruled a decision widely acknowledged as defying the Constitution.
For those wondering why the P or I route, now you know.

[htjyang]

As much as I support Gura's effort to overturn Slaughterhouse, his explanation is not very persuasive. The Court in Heller already stated that the 2nd Amendment right is a pre-existing right that predated the ratification of the Constitution. That suggests the right can exist independent of the government's existence. In fact, the Heller majority specifically mentioned the traditional anti-tyranny rationale 3 times. That clearly contemplated the existence of the right even after the end of our constitutional arrangement. So I don't see why Gura is still concerned about a 2nd Amendment right that is revocable by the government.

That's the natural rights perspective. From a purely realistic perspective, government can indeed take away any right it wishes to revoke. The inherent dangerousness of arms is what makes any comparison to the 1st Amendment problematic. For the most part, prison inmates still retain the right to free speech. But nobody is arguing that prison inmates retain a right to keep and bear arms.

There is an inherent contradiction in Gura's position. He believes that the 2nd Amendment right exists independently of the government. Yet who is he asking to redeem that right? The government, of course. The judiciary is as much a part of government as the executive or the legislature. In fact, had Justice Kennedy woke up from the wrong side of his bed for Heller, there would've been a Justice Stevens majority opinion that upheld the DC codes.

I believe that Gura's argument for incorporation and overturning Slaughterhouse is persuasive. With all due respect to Prof. Kerr, I suspect that Justice Thomas may not be the only one who will support the revival of PoI. (I actually think there is a reasonable chance that Justice Kennedy might sign on.) Doing so can help bring some order to constitutional law. That is good enough for me.

[rwilson452]

I didn't see it posted so, arguments will be heard March 2nd.

[Tom Servo]

I suspect that Justice Thomas may not be the only one who will support the revival of PoI. (I actually think there is a reasonable chance that Justice Kennedy might sign on.) Doing so can help bring some order to constitutional law. That is good enough for me.
A few folks are casting lots on this one, and I've heard some interesting predictions.

Some hold out more hope for PorI invigoration from the liberal side of the court than from Scalia, Alito and Roberts. That would be unfortunate coming from so-called originalists, but we've got politics in the mix. Still, I think Kennedy may be the true wild card here.