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October 11, 2009, 12:37 PM | #76 | ||
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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"? Last edited by Hugh Damright; October 11, 2009 at 01:07 PM. |
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October 11, 2009, 02:15 PM | #77 | |||
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October 11, 2009, 06:21 PM | #78 |
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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.
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October 11, 2009, 08:15 PM | #79 | |
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October 11, 2009, 10:28 PM | #80 | |
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Merriam Webster in the house y'all:
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Heck, I was a Humanities guy, and I get it.
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October 11, 2009, 10:50 PM | #81 |
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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."
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October 11, 2009, 11:07 PM | #82 |
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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. |
October 11, 2009, 11:13 PM | #83 |
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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.
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October 11, 2009, 11:48 PM | #84 | ||||
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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. Quote:
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!
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October 12, 2009, 09:44 AM | #85 | ||||
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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? Quote:
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. Quote:
That strikes me as a strange result in the Senate. Quote:
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November 1, 2009, 06:35 AM | #86 |
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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?
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November 1, 2009, 03:26 PM | #87 |
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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. Last edited by Hugh Damright; November 1, 2009 at 04:25 PM. |
November 1, 2009, 05:03 PM | #88 |
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Hugh,
What connection are you drawing? I don't see how voting rights connects to anything having to do with firearms, in your post. |
November 1, 2009, 05:43 PM | #89 | |
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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? Last edited by Bartholomew Roberts; November 1, 2009 at 05:52 PM. |
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November 2, 2009, 05:08 PM | #90 | |
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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." |
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November 2, 2009, 05:25 PM | #91 |
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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? |
November 2, 2009, 06:28 PM | #92 | ||
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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: Quote:
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November 3, 2009, 05:13 PM | #93 | ||
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I did not assert the the 14th was intended to incorporate suffrage and I feel you have misrepresented/misunderstood my point. Quote:
"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." |
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November 4, 2009, 01:28 AM | #94 | ||
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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. Last edited by Hugh Damright; November 4, 2009 at 02:02 AM. |
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November 4, 2009, 01:47 AM | #95 |
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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? |
November 4, 2009, 02:23 AM | #96 | |
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Jim March has a good summation here. I posted a list of reading materials here. In particular, check out Akhil Amar's The 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.
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November 4, 2009, 10:12 AM | #97 | ||
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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. Quote:
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November 4, 2009, 04:58 PM | #98 | |
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November 4, 2009, 06:30 PM | #99 | |
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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. |
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November 4, 2009, 06:31 PM | #100 | |
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Hey Tom,
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