Spats McGee’s Federal Constitutional Primer

[Spats McGee]

Spats McGee’s Federal Constitutional Primer

In the last few months, we’ve had a great many newcomers around here, both at The Firing Line, and in the firearms community in general. In relation to the latter, I have said in other threads that the gun community needs as many ambassadors as it can muster. We have to be prepared to assist new shooters in learning the basics of gun handling, helping them find training, parts and supplies, and in learning the laws relative to firearms.

In that vein, I have prepared this post. This post is intended to be a basic primer on the United States Constitution and law. It is intended to give those unfamiliar with the workings of our Constitution and our government, both newcomers to the world of firearms law and our gun-owning friends from foreign lands, a quick overview of our constitutional law. It will not cover everything, nor should it. As far as I know, every State in the Union has its own constitution, and I simply have neither the time nor the requisite knowledge necessary to cover all of them adequately.

With that said, let’s take a look:

The United States Constitution:

First of all, it’s important to understand that the U.S. Constitution isn’t just “a law.” It’s The Supreme Law of The Land:

Originally Posted by Founding Fathers

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. U.S. Const. art. VI, cl. 2.

The above-quoted clause is more commonly known as The Supremacy Clause. Note the use of the word “shall.” That doesn’t say that the U.S. Constitution could be the law of the land, nor that it should be the law of the land. It says that it “shall be the supreme Law of the Land, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Id. The Supremacy of the U.S. Constitution is simply not up for debate. Any law passed by a governmental body at any level that is found to be in violation of the U.S. Constitution is declared unconstitutional, and invalid. Accordingly, the U.S. Constitution provides a framework for our country’s laws, at every level of governance, federal, state, and on down. As long as governmental entities pass laws inside that framework, such laws will be upheld by the courts.

Second, it’s important to understand what makes a law unconstitutional. When a law is invalidated as being unconstitutional, it means that a court has said that the law violates the constitution. That is, the law in question goes outside of the boundaries set by the Constitution. However, just because a state law or a state constitution isn’t exactly the same as the U.S. Constitution does not necessarily mean that it is unconstitutional. It may do things differently, so long as it does not conflict with federal constitutional or statutory law.

For example, the Fourth Amendment to the United States Constitution reads as follows:

Originally Posted by Founding Fathers

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const., Amend. IV

By way of comparison, the Arkansas Constitution has a similar provision, but its provision reads as follows:

Originally Posted by Arkansas Constitution

The right of the people of this State to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized. Ark. Const. art. II, § 15

Arkansas’ search and seizure provision is very, very similar to the federal provision. Nonetheless, the Arkansas Supreme Court has held that:

Originally Posted by Arkansas Supreme Court

. . . . [W]hile we lack authority to extend the protections of the Fourth Amendment beyond the holdings of the United States Supreme Court, we do have the authority to impose greater restrictions on police activities in our state based upon our own state law than those the Supreme Court holds to be necessary based upon federal constitutional standards. . . . Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002)

In other words, it would be a violation of the U.S. Constitution for Arkansas law to provide less protection for individuals than the Fourth Amendment requires. It is not a violation for Arkansas law to provide more protection, however, because doing so would leave Arkansas law "inside the framework" established by the U.S. Constitution. The Fourth Amendment tells us what the minimum protections that everyone covered by the U.S. Constitution enjoys. States are free to provide more protections than the Fourth Amendment requires, but may not provide less. Now that’s just an example, but that’s the basic idea. As long as government stays inside the framework established by the U.S. Constitution, laws will be upheld. Once they cross the boundaries of the framework, they’re unconstitutional.

But who decides if a law is unconstitutional? The short answer is: a court. Any federal court could declare a statute unconstitutional, but for purposes of dealing with the Second Amendment to the U.S. Constitution, the only one we’re really concerned about is the Supreme Court of the United States, SCOTUS. Why? Because that’s the one with precedential authority over all other courts. The Seventh Circuit Court of Appeals, for example, recently found an Illinois statute unconstitutional. What does that mean for residents of Missouri? Not much. A federal court in Missouri certainly may look at the Seventh’s decision, and consider it as persuasive authority. It is not binding, though. Missouri is in the Eighth Circuit, so it is not bound to follow the Seventh’s decisions. A decision by SCOTUS, though is binding. All of the state courts, all of the federal courts and all of the federal courts of appeal are required to follow SCOTUS’ decisions on federal law.

Getting to SCOTUS isn't as easy as just "takin' it all the way to the Supreme Court," though. You have to get there by the right path, under the right laws. More on that is covered under "Incorporation and Litigation Matters," below.

Now let’s take a look at our basic constitutional structure. The U.S. Constitution is divided into two parts. The first part consists of the Articles, and the second part is made up of the Amendments. I’ll take each in turn.

Articles:
There are seven Articles to the U.S. Constitution. I have no intention of examining each and every one in depth, but taking a look at the first three is useful. These provide the grants of power to each of our three branches of government: Congress, the Presidency, and the Judiciary:

Originally Posted by Founding Fathers

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. U.S. Const. art. I, § 1

Originally Posted by Founding Fathers

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows: . . . . U.S. Const. art. II, § 1, cl. 1

Originally Posted by Founding Fathers

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. U.S. Const. art. III, § 1

Take a look at the language of all three sections. Legislative powers “shall be vested” in a Congress. The executive power “shall be vested” in the president. The judicial power “shall be vested” in one supreme court, and Congress “may” establish lower courts from time to time. Each one is phrased in such a way as to be a positive grant of power to a branch of government.

In phrasing the Articles in this way, the Founding Fathers stated what the branches of government would be, and what powers they were to have. As noted above, the Founding Fathers also made it very clear that any laws passed by the federal government were to be superior to state laws.
(As an interesting aside, I believe that there was some debate at the constitutional convention as to whether to begin the document with “We the States,” or “We the People.”)

Amendments:
Article V of the U.S. Constitution provides for amendments:

Originally Posted by Founding Fathers

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. U.S. Const. art. V

And amend it they did. I’m not going to get off into all of the Amendments. However, a quick look at the first ten Amendments is instructive. The first ten Amendments are known as The Bill of Rights. The Bill of Rights is phrased in a restrictive fashion, telling us the limits of what the government is allowed to do:

Originally Posted by Founding Fathers

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. U.S. Const, Amend. I

Originally Posted by Founding Fathers

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. U.S. Const, Amend. II

Originally Posted by Founding Fathers

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. U.S. Const., Amend III

Originally Posted by Founding Fathers

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const., Amend. IV

Note the difference between the Articles and the Amendments. The Articles are filled with “somebody shall have the power to do X,” while the Amendments are full of “the government shall not do Y.” The Articles grant power; the Bill of Rights restricts it.

I don’t want to go down through all of the Amendments, or even all ten of the Bill of Rights, but there is one later Amendment that has to be mentioned in this: the Fourteenth Amendnent. In particular, the Due Process Clause of the Fourteenth Amendment.

Originally Posted by Founding Fathers

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. U.S. Const., Amend. XIV, § 1

Why is this clause important? Because it is the method by which federal constitutional provisions are extended down to the states. Just because the U.S. Constitution says something does not automatically mean it applies to the states. Some provisions have been held to apply only to the federal government. The process by which federal constitutional provisions are extended to the states is called incorporation, but not every clause of the U.S. Constitution has been incorporated to the States.

For example, the Fifth Amendment says:

Originally Posted by Founding Fathers

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. U.S. Const., Amend V

The grand jury clause, above, has not been incorporated to the States. That means that a criminal defendant may be indicted on state charges, even for murder or an “infamous crime,” without a grand jury. Many states charge murders and other infamous crimes by way of a document called an "information," filed by the prosecuting authority. On the other hand, the federal government is required to use a grand jury to indict someone for an infamous crime.

The self-incrimination clause, on the other hand, has been incorporated to the states. “We hold today that the Fifth Amendment's exception from compulsory self-incrimination is also protected by the Fourteenth Amendment against abridgment by the States.” Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489, 1492, 12 L. Ed. 2d 653 (1964).

So what does all of that mean for us at The Firing Line? Clearly, we’re most concerned with the Second Amendment. That one is currently in what I would call a “formative phase,” in that it is only recently that the U.S. Supreme Court has declared that:

Originally Posted by SCOTUS

We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.

McDonald v. City of Chicago, Ill., 130 S. Ct. 3020, 3050, 177 L. Ed. 2d 894 (2010).

The “incorporation” mentioned above means that the 2A is now applicable to the States, which SCOTUS had never before held.

Incorporation & Litigation Matters:
Now that we have an idea of how the Constitution works, and how its provisions are extended to state and local government, there's one important caveat. As Frank Ettin notes below, the scope of the US Constitution is limited to regulating governmental relationships, such as between the federal government and the States, or as between the government and the governed. The Constitution does not, in and of itself, regulate conduct as between non-governmental entities or persons:

Originally Posted by Frank Ettin

The Constitution regulates the conduct of government, not that of private persons or entities. Nothing the corner store, your [non-governmental] landlord or your [non-governmental] employer might do (even if illegal for other reasons) can be unconstitutional, because their conduct is not subject to the Constitution.

In other words, what private (non-governmental) entities do might be illegal, but their actions cannot be unconstitutional.

With that in mind, and turning back to governmental affairs, for those of you that may wonder how it is that America came to have such a complex patchwork of firearms laws, well, it’s because incorporation doesn’t happen all at once. We have 1 Federal Constitution, 50 State Constitutions and the District of Columbia, which is an odd beast all its own. Each State is considered to be a sovereign all its own. Each State has its own judicial system, and its own highest appellate court. That highest appellate court in each state is considered to be the final authority on what state law means, as long as that state law doesn’t conflict with federal law or the U.S. Constitution. Before the Second Amendment was held to apply to the States, there was no real possibility of conflict with the federal 2A, because the federal 2A didn’t apply to a state law! Accordingly, each and every state was pretty much free to craft its own firearms law as it saw fit, as long as the law in question complied with the appropriate state constitution. In 2010, SCOTUS changed that by incorporating the 2A, and now we're in the process of figuring out exactly what that means for the 50 States. For 219 years, the States did not have to worry about what the 2A meant, because it didn't apply to them.

Up until the 2A was held to be incorporated to the States in McDonald, it would have been extremely difficult, if not impossible, to challenge State law in the federal courts. What, then, could be challenged? Well, U.S. v. Miller, 59 S.Ct. 816 (1939), was a challenge to the National Firearms Act of 1934 (NFA). So you could challenge the NFA. You could challenge any of federal firearms laws under federal question jurisdiction, but that was about it. Most firearms laws are state laws. Remember that I said that every State has its own highest court? Well, that highest court in each state is the final arbiter of what that state's laws mean, as long as they don't run afoul of federal law. If the State's highest court interpreted a law in a way that didn't conflict with federal law, then there was no reason for a federal court (being courts of limited jurisdiction, as explained below), even SCOTUS, to hear a purely state-law case. And since the 2A didn't even apply to state laws, there was never any reason for the States' highest courts to even consider whether one of their firearms laws might have violated the 2A.

What’s more, federal courts are courts of limited jurisdiction. There are a couple of different kinds of courts, but the ones we’ve been concerned about in 2A litigation are “Article III courts.” They’re formed under Article III of the U.S. Constitution, and they only have jurisdiction in a limited set of circumstances:

Originally Posted by Founding Fathers

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. U.S. Const. art. III, § 2, cl. 1

Again, I’m not going to “get down on the gnat’s eye” as far as the details of this particular Article go. There’s too much there that just isn’t relevant to an overview of ConLaw and 2A litigation. Suffice it to say that a few principles apply, two of which are particularly important to us.

1) There must be a “case or controversy.” Our courts do not issue advisory opinions. If there’s not an actual dispute, the case will be dismissed.
2) If there’s a question of federal law, a federal court may take jurisdiction. This is called “federal question.” There are several bases for a federal court to take jurisdiction, but this is the one we really need for 2A litigation.

Now that the 2A has been incorporated, state laws may be challenged on 2A grounds. Wahoo! As I mentioned above, SCOTUS is the “big dog” on the federal constitution, and its decisions are the ones that really count. So how does one get to SCOTUS?

In civil litigation, there are basically two paths:
1) Start a challenge in state court, run it all the way up to the highest appellate court in the state, then try to take an appeal to SCOTUS. SCOTUS still has to have a basis for accepting the appeal, though.
2) Start a challenge in federal court, appeal up through the Circuit Courts of Appeal, and then up to SCOTUS.

Assuming that a 2A case gets to SCOTUS, there are several different analyses the Court could perform. In Heller v. DC, the Court performed an analysis based on the text and history of the 2A. In my opinion, that is something of an anomaly. In most constitutional litigation, when SCOTUS reviews a law, one of the first steps that it will take is determining what level of scrutiny will be applied to the analysis. As of this posting, no particular level of scrutiny has been announced for 2A cases. For future reference, there are in general three levels of scrutiny:

1) Strict Scrutiny:

Strict scrutiny is a form of judicial review that courts use to determine the constitutionality of certain laws. To pass strict scrutiny, the legislature must have passed the law to further a "compelling governmental interest," and must have narrowly tailored the law to achieve that interest. A famous quip asserts that strict scrutiny is "strict in name, but fatal in practice."

For a court to apply strict scrutiny, the legislature must either have significantly abridged a fundamental right with the law's enactment or have passed a law that involves a suspect classification. Suspect classifications have come to include race, national origin, religion, alienage, and poverty.

Source: http://www.law.cornell.edu/wex/strict_scrutiny

2) Intermediate Scrutiny:

Intermediate scrutiny is a test used in some contexts to determine a law's constitutionality. To pass intermediate scrutiny, the challenged law must further an important government interest by means that are substantially related to that interest. As the name implies, intermediate scrutiny is less rigorous than strict scrutiny, but more rigorous than rational basis review. Intermediate scrutiny is used in equal protection challenges to gender classifications, as well as in some First Amendment cases.

Source: http://www.law.cornell.edu/wex/intermediate_scrutiny

3) Rational Basis:

Rational basis review is a test used in some contexts to determine a law's constitutionality. To pass rational basis review, the challenged law must be rationally related to a legitimate government interest. Rational basis is the most lenient form of judicial review, as both strict scrutiny and intermediate scrutiny are considered more stringent. Rational basis review is generally used when in cases where no fundamental rights or suspect classifications are at issue.

Source: http://www.law.cornell.edu/wex/rational_basis

Technically, & I may be wrong here, I think you can get to SCOTUS by either appeal or writ of certiorari. I have not studied this part of the law enough to speak definitively on the intricacies. What I do know is that SCOTUS is not required to grant either. Regardless of which path is taken, SCOTUS can simply decline to hear the case, effectively affirming a lower court’s decision.
I realize that this primer really doesn’t tell the reader much about the specifics of gun laws. However, it is my hope that those newcomers that I mentioned at the beginning have a slightly better understanding of our Constitution and the interaction between federal constitutional law and our state laws.

[2ndsojourn]

Thanks Spats. Now I have an idea how New Jersey gets away with its draconian firearms laws. All we need now is someone with the time and money to challenge it since the decisions of McDonald.

[Frank Ettin]

Spats,

Very well done and thank you for this outstanding contribution.

I would add one thing:

The Constitution regulates the conduct of government, not that of private persons or entities. Nothing the corner store, you [non-governmental] landlord or your [non-governmental] employer might do (even if illegal for other reasons) can be unconstitutional, because their conduct is not subject to the Constitution.

[Spats McGee]

Good point, Frank. I'll add it to the original post by shamelessly copying and pasting your words.

[Frank Ettin]

Originally Posted by Spats McGee

...I'll add it to the original post by shamelessly copying and pasting your words.

Then please correct my typo.

It should be "your [non-governmental] landlord" NOT "you [non-governmental] landlord."

Someday I might even learn to type (proofread?).

ETA: Never mind, I just did it.

[btmj]

There is a question I have always had about the 14th amendment, and I hope that one of the obviously smart legal thinkers here might enlighten me.

The privileges and immunities clause of the 14th seems to establish automatic incorporation at the time it was ratified. The plain English of the amendment seems to say that the states are not allowed to make or enforce any law which abridges the rights of a citizen.

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

Under what logic has the Courts decided that incorporation of the Bill of Rights should be decided on a case by case basis, by the courts, over a period of 150 years? If the "privileges or immunities of citizens" do not include those specifically outlined in the bill of rights, then what else is there?

I would bet that the body politic that approved the 14th fully expected that it would forever prevent state governments from infringing on the rights of citizens as delineated in the bill of rights. If I had been a state legislator in 1868 who voted in favor of the 14th, I think I would have felt cheated. After all, the amendment could have been phrased as follows: "...State are permitted to make or enforce laws which may abridge the privileges or immunities of citizens of the United States, until such time that courts decide they cannot."..... But that is NOT what the 14th says. And yet, the courts have behaved as if this retarded wording is exactly what the 14th says.

Obviously I am wrong, because the courts have been applying incorporation on a case by case basis for the last 150 years... So what am I missing?

Jim

[Al Norris]

To understand what happened, you really have to read and understand what the Supreme Court did in The Slaughterhouse Cases.

This was a case decided back in 1873 that eviscerated the PorI clause of the 14th.

Alan Gura tried to reinvigorate that clause in the McDonald case, but was unsuccessful. The only Justice that agreed with Gura was Justice Thomas.

[Spats McGee]

Originally Posted by btmj

Under what logic has the Courts decided that incorporation of the Bill of Rights should be decided on a case by case basis, by the courts, over a period of 150 years? If the "privileges or immunities of citizens" do not include those specifically outlined in the bill of rights, then what else is there?

I have to admit that I haven't looked at The Slaughterhouse Cases to which Al refers since, oooohhhh, about law school. He may very well have nailed the answer by pointing you in that direction.

With that said, my gut reaction to your question is this: Our courts do not issue advisory opinions. That means that a court is bound to answer the question before it, and nothing more. For example, if my question is, "Does Statute #12345 violate the Second Amendment to the United States Constitution?," there is no reason for SCOTUS to even examine the Fourth Amendment. Accordingly, it cannot, and will not, decide whether Statute #12345 is implicated by the A4.

[Tom Servo]

This was a case decided back in 1873 that eviscerated the PorI clause of the 14th.

The 14th Amendment pretty much voided the Court's decision in Dred Scott v. Sanford, and they despised it. Though Chief Justice Taney had been succeeded by Chase, they still felt stung.

[vranasaurus]

Great thread. Very good explanation that is broken down to give a basic understanding.


As to PI vs. due process clause for incorporation.

Another good read is Justice Thomas' concurrence in Mcdonald. I happen to agree with Justice Thomas but the rest of the court does not.

If the Supreme Court didn't take the opportunity and overrule slaughterhouse when it decided Mcdonald it probably never will. Substantive due process has become so much a part of our jurisprudence that it isn't going anywhere. Like it or not the court doesn't want to open up pandora's box with the PI clause.

Another good read is Nunn v. State, 1 Ga. 243 (1846). In that case the Georgia Supreme Court held the Second Amendment applicable to the state. The reasoning it used reads a lot like "scheme of ordered liberty."

[Al Norris]

Yes Tom, it did overturn Dred Scott. But that's not why the Court was infuriated.

The 1832 case of Barron v. Baltimore, the Court ruled that the Bill of Rights was codified against the Federal Government only and did not restrict the States, whatsoever.

It should be understood that the phrase, "Privileges and/or Immunities," was a term of art to describe both political and natural rights (in that order).

The 14th Amendment was designed to not only overturn Barron, but also include and incorporate all the Privileges or Immunities (of a US Citizen) as against the States and local governments. In doing this, it completely re-ordered the nature of federalism. That is what stuck in the craw of the Court.

By the way, for those of you that are so afraid that a newer (more liberal) Court would perhaps overturn the 5-4 Heller decision... Slaughter-House was a 5-4 decision that has been upheld as recently as the McDonald decision. Justice Thomas was the only Justice to side with Alan Gura in reinvigorating the P or I Clause of the 14A.

[Tom Servo]

Ah yes, I'd forgotten Barron.

McDonald was initially about a much larger issue than gun rights, and Thomas eloquently argued that it should have been. I was very saddened to see how quickly Scalia dismissed Gura's argument to that end in the orals.

[btmj]

Thanks for taking the time to educate me on this.

(sigh) all those legislators back in 1874 should have passed ANOTHER amendment:

" No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, or citizens of their own state, or citizens of other states. These privileges and immunities shall include all natural rights which are identified, delineated, inferred, referenced, induced, or deduced by or within the United States constitution and all of its amendments, including future amendments. Just to be clear for the 9 clowns who screwed up the 14th amendment, this means that the restrictions on federal government contained in the first 9 amendments are fully applicable as restrictions on state and local governments as well. The courts shall swallow their pride, get over it, and quit screwing around with the plain language of the peoples amendment."

[Hugh Damright]

(sigh) all those legislators back in 1874 should have passed ANOTHER amendment:
the restrictions on federal government contained in the first 9 amendments are fully applicable as restrictions on state and local governments as well.

It doesn't seem right for me to sit here quietly while people assume that the 39th Congress would have passed an amendment which said that the first nine amendments were binding against state/local governments. Anyone wanting to understand this better might refer to Berger's "Government by Judiciary".

It should be understood that the phrase, "Privileges and/or Immunities," was a term of art to describe both political and natural rights (in that order).

I have read the congressional debates over the reconstruction amendments and I think this assertion is untenable. The term "privileges" was intended to exclude political rights, first and foremost the right to suffrage, because Northerners weren't ready to force black suffrage upon themselves (thus the need for the 15th Amendment). And an immunity is not a "natural right", it is an exemption from a duty or burden that applies to others. I challenge anyone to show me one single instance where anyone in the 39th Congress said that the term "privileges and immunities" regarded political rights and natural rights.

[Dr Big Bird PhD]

Clarence Thomas is quite clearly my favorite Supreme Court Judge.

[motorhead0922]

I believe Justice Thomas is becoming one of the great justices.

[MWalsh]

Great thread, thanks.

[doofus47]

Well done.

Personally, when discussing 2nd A issues, I always summarize the Constitution as being about power: who has power over what functions of gov't and what the limits of those powers are.
I then point out that the Amendments are about the limits of those powers in regards to the citizens and what powers the citizens can hold. I then point out that in this context, the 2nd amendment was never about hunting or sports; it's about power. Ultimately, Mao was right; power does come from the barrel of a gun.

It might be a bit uncomfortable to think that the Constitution has built in a citizen-operated 'kill switch' in case of bad governance, but it's also comforting to think that the smartest guys in the room back in 1787 also thought that they might not be smart enough to have made a constitution that would effectively check/balance the rise to tyrannical power of the Federal government.

[fragtagninja]

Spats this is wonderful.

If Spats has perked your ears to things of a constitutional nature be sure to pick up a copy of The Constitution of the United States of America and Selected Writings of the Founding Fathers. It can be purchased at Barnes and Noble.

Great way to experience the constitution from the men who founded this country and in their own words no less.