|
Forum Rules | Firearms Safety | Firearms Photos | Links | Library | Lost Password | Email Changes |
Register | FAQ | Calendar | Today's Posts | Search |
|
Thread Tools | Search this Thread |
April 19, 2013, 04:20 PM | #1 | ||||
Senior Member
Join Date: August 8, 2012
Posts: 2,556
|
Con Law 101: P AND I and/or P OR I as re: National Reciprocity
Quote:
he states: Quote:
Quote:
So now as I string things together, The right to keep and bear arms is arguably a Fundamental Rght and Associate Justice Bushrod holds that the Priveleges AND Immunites Quote:
Now, what I don't have a handle on, is the Slaughterhouse Case, and what it means above and beyond the straightforward facts in it's case.. the esoteric/philosophical/nuanced type of effects that case has. Last edited by JimDandy; April 20, 2013 at 11:45 AM. |
||||
April 19, 2013, 04:23 PM | #2 |
Staff
Join Date: July 28, 2010
Location: Arkansas
Posts: 8,821
|
Somebody's been busy playing Stump the Lawyers, methinks.
__________________
I'm a lawyer, but I'm not your lawyer. If you need some honest-to-goodness legal advice, go buy some. |
April 19, 2013, 04:24 PM | #3 |
Senior Member
Join Date: August 8, 2012
Posts: 2,556
|
To be fair you had a hand in suggesting this "game" to me.
And while I think about this.. reading my last bullet point- Would a non-resident permit be unconstitutional along the same philosophy that got rid of Separate But Equal in Brown v Board of Education? That Separate But Equal can never be Equal? |
April 19, 2013, 04:28 PM | #4 |
Staff
Join Date: July 28, 2010
Location: Arkansas
Posts: 8,821
|
JD, it is entirely fair to say that I had a hand in it. However, it's too late in the day for me to decipher a P&I question and cross-reference it against Brown v. Bd. of Ed. I'll come back to this, but for now, I'm going to sort emails.
__________________
I'm a lawyer, but I'm not your lawyer. If you need some honest-to-goodness legal advice, go buy some. |
April 19, 2013, 04:31 PM | #5 |
Senior Member
Join Date: August 8, 2012
Posts: 2,556
|
Oh I have no illusions on monopolizing your time. I just have thoughts, and ask questions, and wait patiently for the answers at rate appropriate to the rate I pay for them. At the current rate of Free, I don't expect any speed.
Edit: And as long as I'm having thoughts and asking questions, realizing that not bringing up 14A, P OR I, and Slaughterhouse myself doesn't preclude the Government from doing so to respond, does it lessen their persuasiveness since that's not the point of law we're arguing? Edit: And Thanks again for discussing this stuff. Aside from the obvious, the better informed you are about the laws the easier it is to follow them angle, I really enjoy thinking puzzles, and coming up with this stuff is a somewhat different kind of thinking "puzzle" putting this stuff together, that I'm enjoying. Last edited by JimDandy; April 19, 2013 at 04:38 PM. |
April 19, 2013, 06:20 PM | #6 |
Senior Member
Join Date: December 15, 2011
Location: San Diego, CA
Posts: 317
|
P&I are an obvious tie-in, and beloved of Alan Gura.
Sadly, they seem to be out of favor with all lawmakers and all but one SCOTUS justice, so they may as well not exist. |
April 19, 2013, 07:14 PM | #7 |
Senior Member
Join Date: August 8, 2012
Posts: 2,556
|
Right but there's P AND I and P OR I. One is Article IV Section 2, the other is a clause of the 14th amendment.
I haven't seen or heard anything that states the 14th amendment clause was a replacement for Article 4 section 2. And that would conflict with contemporaneous rulings of the era which held the clause was specifically designed to deal with freedmen after abolition. Especially in the Slaughterhouse Cases that somehow (I'm still not clear on how) removed a lot of the teeth from the clause. With that stipulated, it could be argued, and probably somewhat effectively so by someone more talented and knowledgeable with the law than I, that as the two are distinct, the Slaughterhouse Cases don't apply to Article IV Section 2, because the rulings in Slaughterhouse touched on the scope and intent of the 14th Amendment very heavily. So if we instead rely on Article 4, we can minimize the effect of the Slaughterhouse Cases- and argue we're discussing the Privileges and Immunities of all citizens not the narrowly defined and held subset the Slaughterhouse Cases limited the 14th Amendment to. They are sufficiently similar to serve our purpose, without the baggage. |
April 19, 2013, 09:34 PM | #8 | |
Staff
Join Date: September 27, 2008
Location: Foothills of the Appalachians
Posts: 13,059
|
Quote:
Jim, you're correct. The whole point of PorI was that it was to apply the Bill of Rights to the actions of states. One of the inspirations was the disarming of freedmen in former Confederate states. "Incorporation" through Due Process is a band-aid to get around the fundamental misinterpretation of Bingham's intent.
__________________
Sometimes it’s nice not to destroy the world for a change. --Randall Munroe |
|
April 19, 2013, 09:38 PM | #9 |
Senior Member
Join Date: August 8, 2012
Posts: 2,556
|
But by using P AND I, we avoid the cracks in the amendment clause, and get an un-watered down version right?
|
April 20, 2013, 12:14 AM | #10 |
Senior Member
Join Date: November 29, 2004
Location: South West OHIO (boondocks)
Posts: 1,337
|
This is extremely far from an area that I can speak to with any authority, but I have been anxious to learn more about the Slaughterhouse case, and the ramifications of it's rulings regarding P&I. I was thinking of starting a thread discussing it in greater detail, and am glad it has been done. I need a greater understanding of how P&I applies, and why the courts have been so reluctant to go near or touch it. (what was the original intent, and how did they destroy it, or did they? What was it meant to do or convey originally, and what does it do or convey now?)
As intended, I see P&I as a good thing, and something that the court has sought to limit or ignore? Something that severely limits their power, and amplifies our arguments? Someone please explain this. I made it about a quarter of the way through the original papers on the rulings, and I think those brain cells are forever silenced as a result.... |
April 20, 2013, 06:31 AM | #11 |
Senior Member
Join Date: May 17, 2012
Posts: 228
|
The way I see this is that each state would need to allow non-residents to get permits(or reciprocity). A visitor to another state should be able to be treated just like a resident(exceptions would be voting and welfare of course). The offending states in regards to CCW are NY and CA, which normally won't issue to non-residents. There are others, like SC and CO, which don't issue to non-residents and only accept certain other states permits. That should be a violation of the P or I clause of the 14th Amendment.
See Ward v. Maryland 1870 for a successful case involving the P or I clause. |
April 20, 2013, 11:05 AM | #12 | |
Senior Member
Join Date: August 8, 2012
Posts: 2,556
|
We have to make sure we're being strict on the conjunction, remember P AND I is different from P OR I.
As for the original meaning of the Article 4 section 2 Privileges AND Immunities, http://en.wikipedia.org/wiki/Corfield_v._Coryell This wiki page for Corfield v Coryell quotes the two paragraphs allegedly used the most often- In fact I linked to the full case above. The guy who wrote the judgement/opinion in the case was George Washington's Nephew, he was a Virginia delegate, a Virginia Delegate for ratification, and- when he wrote the opinion an Associate Supreme Court Justice "riding Circuit" as they were supposed to do way way back when. The quoted passage starts with almost the best possible definition: Quote:
Last edited by JimDandy; April 20, 2013 at 11:47 AM. |
|
April 20, 2013, 08:46 PM | #13 | |
Senior Member
Join Date: December 15, 2011
Location: San Diego, CA
Posts: 317
|
I don't understand the problem. There is no "P&I or P or I, pick one set". You have both P&I, and they cannot screw with your P or your I. Game over.
P or I are mentioned using the conjunction 'or' because to use the conjunction 'and' would have disastrous impact on our rights. Quote:
I do not understand the confusion. No legal entity (to my knowledge) thinks the 14th is supposed to supplant or modify Article 4 Sec 2. The only issue I know of is the same one Gura complains about -- our P and our I are not properly respected. |
|
April 20, 2013, 08:58 PM | #14 |
Senior Member
Join Date: November 29, 2004
Location: South West OHIO (boondocks)
Posts: 1,337
|
Many thanks for the links and explanations. Let me ask a very simple question. If this clause guarantees that as citizens we have privileges or immunities that shall not be messed with, then how can they make laws that infringe on those privileges or immunities without them being immediately struck down as unconstitutional?
I guess the short answer I can think of is that they do, because they don't care, and they know it would be too expensive or time consuming for most citizens to fight it, and there is no penalty to them for doing so. If we were successful in setting a stiff penalty under law for passing any legislation that was thereafter to be found unconstitutional, and made it a burden of the government to foot the bill for such challenges, I think a lot of these horrible leftist dream laws would never see the light of day, let alone be set to paper. |
April 20, 2013, 09:00 PM | #15 |
Senior Member
Join Date: August 8, 2012
Posts: 2,556
|
Speed Racer there are two P/I clauses. The one in the constutition proper, Article 4, Section 2. Which is properly the Privileges AND Immunities Clause, and the clause in the 14th amendment, the Privileges OR Immunities clause.
Because rulings exist for the 14th Amendment version, which is written in a distinctly different form than Article 4 Section 2, if we aim at A4 S2 instead.... |
April 21, 2013, 04:44 AM | #16 |
Senior Member
Join Date: June 5, 2004
Posts: 611
|
The way I understand it, the declaration in Article IV, Section 2 that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States" is a nondiscriminatory provision. It is not a declaration of national P&I that cannot vary from State to State. It merely means that whatever the P&I are in a State, they must be extended to citizens from other States ... for example, I suppose it would violate Article IV, Section 2 if Virginia passed a law saying that people from New York could not possess "assault weapons" in Virginia, but if Virginia passed a law saying that nobody could possess "assault weapons" in Virginia then that would not discriminate against citizens of other States and so it would not violate Article IV, Section 2.
|
April 21, 2013, 10:28 AM | #17 | |
Senior Member
Join Date: August 8, 2012
Posts: 2,556
|
Isn't that exactly the types of things I was listing though?
Quote:
|
|
April 22, 2013, 12:17 PM | #18 | |
Senior Member
Join Date: December 15, 2011
Location: San Diego, CA
Posts: 317
|
Quote:
This does not mean there are two competing clauses and oh-my-what-did-the-framers-really-mean. The two references are worded differently because they must be, as I explained above. A4S2 binds the Federal govt (you have your P&I no matter which state you're in) & the 14th binds the states (states cannot mess with your P nor can they mess with your I). |
|
April 22, 2013, 12:37 PM | #19 |
Member
Join Date: October 15, 2002
Location: Arkansas, USA
Posts: 73
|
I see what speedracer is saying.
You can have apples AND oranges, and no one can tamper with your apples OR oranges. As for P&I in A4S2 - I've always taken that to include all of the Bill of Rights and well as the un-enumerated rights. Or in other words - The States are "supposed" to recognise, at the very least, the same enumerated Rights as the Supreme Law of the Land does. Though they are free to recognise more, area specific rights - such as coastal area fishing rights - which would not apply to landlocked states. By the way. Thanks again Jim.
__________________
The opinion of 10,000 men is of no value if none of them know anything about the subject. - Marcus Aurelius - TFL Member #17104 Last edited by Vibe; April 22, 2013 at 12:51 PM. |
April 22, 2013, 12:38 PM | #20 | ||||||
Senior Member
Join Date: August 8, 2012
Posts: 2,556
|
Quote:
Quote:
Quote:
Quote:
Quote:
Quote:
|
||||||
April 22, 2013, 12:56 PM | #21 | |
Member
Join Date: October 15, 2002
Location: Arkansas, USA
Posts: 73
|
From the Critisim portion of the Slaughterhouse Wiki page
Quote:
__________________
The opinion of 10,000 men is of no value if none of them know anything about the subject. - Marcus Aurelius - TFL Member #17104 |
|
April 22, 2013, 01:04 PM | #22 |
Senior Member
Join Date: August 8, 2012
Posts: 2,556
|
Right, they held that because they didn't have a contract, they didn't have standing, and couldn't bring a case.
|
April 22, 2013, 01:28 PM | #23 |
Member
Join Date: October 15, 2002
Location: Arkansas, USA
Posts: 73
|
No. They had standing, and did bring the case
http://supreme.justia.com/cases/fede.../746/case.html But the new Louisiana Constitution nulified any previous contractual agreement by addressing the monopoly issue.
__________________
The opinion of 10,000 men is of no value if none of them know anything about the subject. - Marcus Aurelius - TFL Member #17104 |
April 22, 2013, 02:53 PM | #24 |
Senior Member
Join Date: December 15, 2011
Location: San Diego, CA
Posts: 317
|
Vibe has it right, and so does Wikipedia. The Slaughterhouse cases are a joke, and the legal community knows it.
If I brought some otherwise-legit case before SCOTUS, and the govt said, "speedrrracer should lose this case because of this precedent from Slaughterhouse", the SCOTUS justices would bitchslap the govt in a heartbeat. Basing anything off Slaughterhouse is a bad idea. The best you'd get is SCOTUS trying to give a little respect and give it the treatment like Miller got in Heller, where SCOTUS would pigeonhole it and say something like, "Slaughterhouse only means X in circumstance Y, and has no other value". I will grant you that if some case arose which was politically unpleasant to the SCOTUS justices, and they needed Slaughterhouse to justify an otherwise clearly unconstitutional decision, they would not hesitate to use it to serve their ends. Legal yoga is the primary function of SCOTUS, not accurately interpreting the Constitution. On an unrelated note, I wanted to add that I also enjoy your '101' threads -- keep 'em up! |
April 22, 2013, 03:06 PM | #25 |
Senior Member
Join Date: August 8, 2012
Posts: 2,556
|
What about my hypothesis that P AND I is different than P OR I, with different precedent, and a possibly different result because it brings a different set of precedent?
I have fun too. I get to learn, while I do a little research so I'm hopefully doing more than emulating a monkey throwing crap at the wall until the real lawyers tell me what sticks. Plus as I was telling Spats, I get to daydream about saving our hobby and rights for everyone and imagine what I'd buy with the millions Mr. Gura would share with me for using my ideas that I present in such an innovative and insightful manner. So far I'm still fixating on the Browning 725 over/under, though realistically aiming for a 4 pack of Walmart special trap loads may be aiming too high But it's still fun to dream. |
|
|