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
That last bit's a little odd: Gura's case eschewed the Due Process argument as being weaker and narrower.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.
as being an accepted fact.the Second Amendment right to keep and bear arms
Would you believe I glossed completely over the first page and jumped into the meat of the thing when I read it? D'oh!Not odd at all, when you have read all the briefs Gura has written in regards the McDonald case.
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.
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.
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.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.
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.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.
—Slaughterhouse Cases: 83 U.S. 36, 73-74 (1873)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.”
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?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.
Regardless of Miller's (or any other Justice's) interpretations, the original meaning of the framers was quite clear: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.
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 (...)
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.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"