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Old May 24, 2023, 09:56 PM   #1
Jim March
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Question regarding CCW cross-border discrimination and Saenz v Roe 1999, US Supreme Court...


I'm now an Alabama resident and long haul trucker.

Right now the states of California, Oregon, New York and Illinois won't honor my AL carry permit (which I have) AND won't allow me to apply for permits in those states - I'm statutorily barred from applying purely because I'm an AL resident.

Saenz v Roe was about cross-border discrimination. People had moved into California and were being given welfare benefits that were the same as the state they recently came from, as opposed to the higher numbers a longer-term California resident would get.

The US Supreme Court in Saenz found that this policy was a violation of people's right to free travel and rights under the 14th Amendment's privileges and immunities clause.

Why does this matter? A bit more history is necessary...

In the US Supreme Court decision in Ward v Maryland 1870, the 14th Amendment came before the US Supreme Court for the very first time. Ward was a businessman from New Jersey operating in Maryland and being hit with extra taxes because he wasn't an MD resident. He refused to pay the extra taxes, got fined, sued MD and won.

In that case the Supremes said that cross-border discrimination was named under the privileges or immunities clause of the 14th.

A couple of years later the US Supreme Court decision in Slaughterhouse Cases infamously said that the ONLY thing the PorI clause of the 14th does was act as a barrier to cross-border discrimination.

*Slaughterhouse is still good case law for that proposition.*

Stay with me here.

In a series of cases between Slaughterhouse and roughly 1900, the US Supreme Court systematically destroyed the rest of the 14th Amendment. In the infamous final decision (1876) in US v Cruikshank (an 1875 case), the US Supreme Court said that there was nothing the federal government could do when white police and rioters in Colfax LA disarmed newly freed slaves and then murdered over 100 of them for daring to try to vote under the new-at-that-time 15th Amendment. Specifically, the Supremes in Cruikshank said that the feds could not control violations of the 1st Amendment right to free assembly, 2nd Amendment right to arms and 15th Amendment right to vote. Protecting these rights was allegedly up to the states.

Cruikshank is the case that caused over 4,000 lynchings and countless other civil rights violations.

In Heller v McDonald 2008, Scalia inserted several positive references to a 2008 book by Charles Lane titled "The Day Freedom Died" in which "the day" was the issuance of the final opinion in Cruikshank. Scalia was quietly admitting that the US Supreme Court had made a mistake. See also Thomas's concurring dissent in Saenz where he says that preventing cross-border discrimination IS something the PorI clause was supposed to do, but in fact it was supposed to do a hell of a lot more.

Ok. One more historical note. In the early 20th century and running right to the present, the Supremes realized that functionally destroying most of the 14th was probably a bad idea. So they invented a concept called "selective incorporation via the due process clause". Basically, they stretched the due process portion of the 14th into a way to force the states to obey the Bill of Rights, **one piece at a time** instead of all-at-once the way the PorI clause would have done.

In 2010 the Supreme Court "selectively Incorporated" the 2nd Amendment to the states. As late as 2009 Alameda County California was citing to the evil Cruikshank decision for the idea that state and local governments can violate the 2A. McDonald put a stop to that. Thomas, again, filed a concurring dissent in McDonald saying "we should be doing PorI incorporation, not this selective [___]". He did it yet again when the excessive fines clause in the BoR was selectively Incorporated in Timbs v Indiana 2019.

Ok. What does all this mean?

Go back to Saenz. It's a *general* prohibition against cross-border discrimination. It doesn't just cover the Saenz situation. In fact, it even tells lower court judges that when they encounter cross-border discrimination, **they're supposed to apply strict scrutiny**.


So, New York and these other states will post-Bruen (reluctantly and slowly!) issue CCW permits to their own state residents *but not to residents of other states*. Once challenged on that, they would have to justify that policy under Bruen via a "text, history and tradition" analysis AND under a "strict scrutiny" analysis required by Saenz due to the cross-border discrimination.

If a judge doesn't agree with that reading of Saenz, he's done something the Slaughterhouse and Cruikshank courts would have loved to do but didn't dare: write the 14th Amendment PorI clause completely out of the US Constitution, because it would have no purpose left whatsoever if it can't block cross-border discrimination.

Because per Slaughterhouse that's all it has left now. Slaughterhouse refers back to Ward in a positive light, but says that cross-border discrimination is all the PorI clause does.

[Edited for language by moderator]
Jim March
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Old May 25, 2023, 03:49 AM   #2
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Wow thanks this looks like something good will eventually work. In the meantime corruption will be the rule of the day.
Gun control is like stopping drunk driving by making it harder for sober people to drive.
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Old May 25, 2023, 06:47 AM   #3
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Don't forget to breathe... while waiting
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Old May 25, 2023, 07:55 AM   #4
Jim March
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Join Date: February 14, 1999
Location: Pittsburg, CA, USA
Posts: 7,417
What is this "waiting" of which you speak?

TLDR: that's a pre-canned "motion to dismiss" based largely on the above that I can use in a state criminal court if busted packing in IL, NY, CA or OR. I do a lot of AL to Maine runs so NY is the most likely possibility of those four. CA is the least likely because my truck doesn't meet CA smog specs.
Jim March
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