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Old April 19, 2013, 04:20 PM   #1
JimDandy
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Con Law 101: P AND I and/or P OR I as re: National Reciprocity

Quote:
Originally Posted by Founding Fathers
Article IV Section 2,

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
This clause has been most famously defined by Associate Justice Bushrod Washington - a founding father as a State Delegate for Virginia in 1787, as well as a Delegate for the Virginia convention to ratify the U.S. Constitution in 1788.1 In Corfield v. Coryell (6 Fed. Cas. 546, no. 3,230 C.C.E.D.Pa. 1823) 2
he states:
Quote:
Originally Posted by Associate Justice Bushrod
The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.
The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each state, in every other state, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old articles of confederation) "the better to secure and perpetuate mutual friendship and intercourse among the people of the different states of the Union
Additionally we have our own second amendment, and the English Bill of Rights from 1689- Which acts as both a source of common law via Reception Statutes in every state but Louisiana3 So the right-
Quote:
Originally Posted by Unknown British dudes similar to our founding fathers
no royal interference in the freedom of the people to have arms for their own defence as suitable to their class and as allowed by law
is probably not covered by a reception statute, but it is informative as to the general purpose of our own Second Amendment, according to Blackstone's Commentaries Book 1 Ch 1 – "The fifth and last auxiliary right of the subject ... is that of having arms for their defence". as reported in the footnote number 18 4

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:
which are, in their nature, fundamental
are the ones protected from state to state deviance by the Priveleges AND Immunities Clause of the Constitution. Now because this is Privileges AND Immunities, not Privileges OR Immunities, I believe we sidestep both the 14th Amendment, AND the Slaughterhouse Cases.
  • Any US citizen should be able to travel from their state, to any other state bearing arms in some fashion.
  • Requiring FOID type permits to purchase long guns, and/or ammunition or for the simple act of bearing arms is unconstitutional if those cards are not readily available for non-resident citizens without foricng the disarmament of those citizens by an unarmed trip to the location.
  • A state that allows concealed carry must either allow a non-resident permit of equal cost, effectiveness, and availability as the one to residents OR honor the permit of any and every other State and Territory of the Union

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.
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Old April 19, 2013, 04:23 PM   #2
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Somebody's been busy playing Stump the Lawyers, methinks.
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Old April 19, 2013, 04:24 PM   #3
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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?
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Old April 19, 2013, 04:28 PM   #4
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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.
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Old April 19, 2013, 04:31 PM   #5
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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.
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Old April 19, 2013, 06:20 PM   #6
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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.
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Old April 19, 2013, 07:14 PM   #7
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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.
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Old April 19, 2013, 09:34 PM   #8
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Quote:
Sadly, they seem to be out of favor with all lawmakers and all but one SCOTUS justice, so they may as well not exist.
They have for a while.

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.
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Old April 19, 2013, 09:38 PM   #9
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But by using P AND I, we avoid the cracks in the amendment clause, and get an un-watered down version right?
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Old April 20, 2013, 12:14 AM   #10
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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....
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Old April 20, 2013, 06:31 AM   #11
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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.
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Old April 20, 2013, 11:05 AM   #12
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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:
The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign.
Also added a new part to this title, to go along with Spat's Primer, as we get further out from that Primer for things like Slaughterhouse, etc. we can name the things Con Law 101 - Whatever the question is; and if it works out, move selected passages to the Primer as we settle on the best explanation for the laymen like me.

Last edited by JimDandy; April 20, 2013 at 11:47 AM.
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Old April 20, 2013, 08:46 PM   #13
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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:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States....
If the conjunction 'or' was not used, and instead 'and' was used, then the states could make / enforce laws which abridged privileges or immunities, as long as they didn't abridge both.

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.
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Old April 20, 2013, 08:58 PM   #14
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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.
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Old April 20, 2013, 09:00 PM   #15
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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....
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Old April 21, 2013, 04:44 AM   #16
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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.
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Old April 21, 2013, 10:28 AM   #17
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Isn't that exactly the types of things I was listing though?
Quote:
  • Any US citizen should be able to travel from their state, to any other state bearing arms in some fashion.
  • Requiring FOID type permits to purchase long guns, and/or ammunition or for the simple act of bearing arms is unconstitutional if those cards are not readily available for non-resident citizens without foricng the disarmament of those citizens by an unarmed trip to the location.
  • A state that allows concealed carry must either allow a non-resident permit of equal cost, effectiveness, and availability as the one to residents OR honor the permit of any and every other State and Territory of the Union
I believe the Commerce Clause is what gets rid of the state AWB's for us, as mentioned in antoher thread.. State AWBs and The Commerce Clause
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Old April 22, 2013, 12:17 PM   #18
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Quote:
Originally Posted by Jim Dandy
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....
I disagree, there are not 2 P/I clauses. There is only A4S2. There is language in the 14th which makes it clear that neither your P nor your I can be messed with by the states (incorporation via amendment).

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).
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Old April 22, 2013, 12:37 PM   #19
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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.
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Old April 22, 2013, 12:38 PM   #20
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Quote:
I disagree, there are not 2 P/I clauses
I believe there are: Firstly because of the Slaughterhouse Cases specifically basing their case on the 14th amendment:

Quote:
Originally Posted by Mr. Justice Miller
The records show that the plaintiffs in error relied upon, and asserted throughout the entire course of the litigation in the State courts, that the grant of privileges in the charter of defendant, which they were contesting, was a violation of the most important provisions of the thirteenth and fourteenth articles of amendment of the Constitution of the United States. The jurisdiction and the duty of this court [p59] to review the judgment of the State court on those questions is clear, and is imperative.
Secondly because of the results of those cases, that the 14th Amendment is worded differently, and had a different purpose built into the amendment. This was part and parcel of the rationale in the decision:

Quote:
Originally Posted by Mr. Justice Miller
The most cursory glance at these articles discloses a unity of purpose, when taken in connection with the history of the times, which cannot fail to have an important bearing on any question of doubt concerning their true meaning.
And described at even further length:

Quote:
Originally Posted by Mr. Justice Miller
But the war being over, those who had succeeded in reestablishing the authority of the Federal government were not content to permit this great act of emancipation to rest on the actual results of the contest or the proclamation of the Executive, both of which might have been questioned in after times, and they determined to place this main and most valuable result in the Constitution of the restored Union as one of its fundamental articles. Hence, the thirteenth article of amendment of that instrument. [p69] Its two short sections seem hardly to admit of construction, so vigorous is their expression and so appropriate to the purpose we have indicated.
And, on the 14th amendment specifically:

Quote:
Originally Posted by Mr. Justice Miller
Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress Shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?
That we get this final interpretation of the amendment:

Quote:
Originally Posted by Mr. Justice Miller
But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when, in fact, it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people, the argument has a force that is irresistible in the absence of language which expresses such a purpose too clearly to admit of doubt.

We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.
Article 4, Section 2 is not tainted by this interpretation, and precedent. In fact, Article 4, Section 2 has precendent favoring the equal treatment of a non-state-resident US Citizen by a state, AS IF that citizen were a citizen of that state.
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Old April 22, 2013, 12:56 PM   #21
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From the Critisim portion of the Slaughterhouse Wiki page

Quote:
Harvard law professor Laurence Tribe writes that “the Slaughter-House Cases incorrectly gutted the Privileges or Immunities Clause.” Similarly, Yale law professor Akhil Amar has written “Virtually no serious modern scholar—left, right, and center—thinks that Slaughter-House is a plausible reading of the Fourteenth Amendment.”[13]
A spinoff ofthis case was later again heard by SCOTUS in the Butchers' Union Co. v. Crescent City Co. (1884) case, with the U.S. Supreme Court holding that Crescent City Co. did not have a contract with the state, and that revocation of the monopoly privilege was not a violation of the Contract Clause.
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Old April 22, 2013, 01:04 PM   #22
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Right, they held that because they didn't have a contract, they didn't have standing, and couldn't bring a case.
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Old April 22, 2013, 01:28 PM   #23
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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.
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Old April 22, 2013, 02:53 PM   #24
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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!
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Old April 22, 2013, 03:06 PM   #25
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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.
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