Chicago Gun Case Incorporation Lawsuit

[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), 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-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. 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/contac...nators_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, 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]

Originally Posted by Tom Servo

Actually, it looks like there's been a delay. According to Gura's site, 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-con.../08-1521ts.pdf


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

[BillCA]

Originally Posted by Tom Servo

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 (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)

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?