Chicago Gun Case Incorporation Lawsuit

[NightSight]

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

[Yellowfin]

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

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

[Al Norris]

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

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

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

Finally, a compromise that's really a compromise.

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

That could very well see a 9-0 decision.

[Al Norris]

Finally!

The official orders are here.

08-1521 MCDONALD V. CHICAGO

DECISION BELOW:

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

QUESTIONS PRESENTED:

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

CERT. GRANTED 9/30/2009

[Tom Servo]

QUESTIONS PRESENTED:

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

That last bit's a little odd: Gura's case eschewed the Due Process argument as being weaker and narrower.

Still, notice the phrase

the Second Amendment right to keep and bear arms

as being an accepted fact.

NightSight, to elaborate, we had two (actually three) methods of incorporation. Total incorporation assumes that the BoR protects individual rights, and that the 14th Amendment, through the Priviliges/Immunities clause, automatically incorporates them against the states.

Due Process involves incorporating rights on a case-by-case basis as the issue rises. Due Process is usually used to incorporate unenumerated rights.

[Al Norris]

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

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

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

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

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

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

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

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

[raimius]

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

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

[Tom Servo]

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

Would you believe I glossed completely over the first page and jumped into the meat of the thing when I read it? D'oh!

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

Hugo Black, in Duncan,

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

If the Court decides not to overturn Slaughterhouse they can always fall back and incorporate via their Due Process Doctrine. Hence the double sided question.

Hoping it doesn't come to that. We shouldn't have to prove the "quality and character" of the right, nor should it be considered an "emanation" of any sort.

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

I think we can expect Kennedy to be warm to the idea as well, which would give us a simple majority. Stevens invoked Privileges or Immunities in Saenz v. Roe. How the other Justices rule...well, it'll be a litmus test for their beliefs on issues above and beyond the 2nd Amendment.

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

[Bartholomew Roberts]

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

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

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

[BillCA]

Tom,

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

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

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

—Slaughterhouse Cases: 83 U.S. 36, 73-74 (1873)

[armoredman]

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

[Tom Servo]

While I agree with Justice Black's opinion, remember that the court claimed that the "privileges or immunities of citizens of the United States" had nothing to do with the a citizen's rights within a State.

Black was, unfortunately, a voice in the wilderness on that front. The Court rolled ahead with the discretionary Due Process approach, but the question remains: was that the acceptable and right course?

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

They also claimed that the BoR protected "pre-existing rights" (prior to the Constitution) and could not, thus be "privileges or immunities" which would be granted by the government.

Regardless of Miller's (or any other Justice's) interpretations, the original meaning of the framers was quite clear:

Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution. To these privileges and immunities, whatever they may be—for they are not and cannot be fully defined in their entire extent and precise nature —to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms (...)

(39th Congressional Session, p. 2765)

[Yellowfin]

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

[Al Norris]

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

Yeah, it can get confusing sometimes.

Edited to add: The Miller case we are referencing is here, and it's real short. The relevant portion is the last paragraph.

[Hugh Damright]

the original meaning of the framers was quite clear ... "to these privileges and immunities ... should be added the personal rights guaranteed and secured by the first eight amendments"

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

[armoredman]

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

[Tom Servo]

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

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

Are there still contemporary arguments against the idea?

[Al Norris]

Originally Posted by armoredman

I am not a lawyer, nor do I play one on TV.

...and the last time I stayed in a Holiday Inn was in '97!

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

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

[BillCA]

Al,

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

Originally Posted by Antipitas

The language used is clear.

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

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

[Tom Servo]

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

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

There are differences. First off, we have a larger mountain of irrefutable textual and historic evidence on our side. Second, we've got support from both sides of the political spectrum.

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

[Tennessee Gentleman]

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

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

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

[Yellowfin]

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

[Hugh Damright]

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

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

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

[Jim March]

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

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

[Al Norris]

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

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

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

The philosophies of these men were highly influential among the colonists. So much so, that Thomas Jefferson used Hutcheson's terminology when framing the Declaration of Independence,

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights..."

and then modified Locke, by writing,

"... Life, Liberty and the pursuit of Happiness."

These alienable and unalienable rights were first codified into the Articles of Confederation. They carried over into the Constitution and finally the 14th amendment.

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