Chicago Gun Case Incorporation Lawsuit

[Al Norris]

As much as I would like to continue this little side trip, we are off topic.

Someone open a new thread on the probable after-effects of incorporation. Meanwhile, let's all get back on topic in this thread, please.

 

[Tennessee Gentleman]

George Will's commentary is here on P&I: http://www.washingtonpost.com/wp-dyn/content/article/2010/03/05/AR2010030502873.html.

Liberals might hope and conservatives might fear that a revivified "privileges or immunities" clause wielded by liberal justices would breed many new "positive rights" -- to welfare, health care, etc. But conservatives know that "substantive due process" already has such a pernicious potential. And they believe that if -- a huge caveat -- it remained tethered to the intent of its 19th-century authors, the "privileges or immunities" clause would be useful protection against the statism of the states.

I have doubts about the caveat and would fear the P&I might later on in another court give someone the right to "feel safe" or have health care.

 

[maestro pistolero]

I have doubts about the caveat and would fear the P&I might later on in another court give someone the right to "feel safe" or have health care.

Nah. Either the future courts are going to be virtuous, or not. Look at the intellectual backflips the court has done to overcome Slaughterhouse. That's why I am perplexed at any reluctance to take out the trash once and for all.

TG, you are always saying that our democratic institutions are the best safeguard of our liberty. I assume you mean the three branches, including the ones in robes. Alright, well here I am agreeing with you. Forcing folks to pay for other people's health care is certainly an assault on liberty, IMHO.

 

[Tennessee Gentleman]

Either the future courts are going to be virtuous, or not.

One man's virtue is another man's vice.

That's why I am perplexed at any reluctance to take out the trash once and for all.

Because as Will pointed out what the P&I meant in 1870 and what it could mean today are world's apart.

TG, you are always saying that our democratic institutions are the best safeguard of our liberty. I assume you mean the three branches, including the ones in robes.

Certainly more than the shotgun in my closet safe. And yes especially the ones in the robes.

Forcing folks to pay for other people's health care is certainly an assault on liberty, IMHO.

I hate to break it to you but you already are paying for others health care and retirement. BTW do you think your AR-15 at home will keep the Dems from passing health care reform that makes you pay for even more folk's health care? Just kidding!

 

[maestro pistolero]

When occasions present themselves, in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests, to withstand the temporary delusion, in order to give them time and opportunity for more cool and sedate reflection.

Alexander Hamilton, Federalist No. 71

The temporary delusion, in this case, was the creation of selective incorporation from thin air in order to overcome the gutting of the 14th. The opportunity is to restore the 14th to the position it was intended to have by the ratifiers.

 

[Bartholomew Roberts]

I think Justice Ginsburg highlighted the problem in originalist interpretation well. Under an originalist view, none of the rights protected by P&I were intended for women. Even 14th Amendment advocates such as Senator Howard admit as much.

So how are we going to apply those rights to women today but still limit it to originalist intent? What coherent theory can be used to explain why women have these rights; but doesn't open a hole you can drive a "right to healthcare" through?

 

[maestro pistolero]

So how are we going to apply those rights to women today but still limit it to originalist intent? What coherent theory can be used to explain why women have these rights; but doesn't open a hole you can drive a "right to healthcare" through?

I really, really don't get how incorporating an enumerated right (one written in plain language right there in the Bill of Rights) opens the flood gates to any imagined right whatsoever. It's like expecting that my car keys will start every car in the neighborhood.

And no one fanning the flames of the "anything goes" argument against PoR incorporation ever bothers to explain how that would work.

 

[Tennessee Gentleman]

See the Ninth Amendment.

 

[maestro pistolero]

So where are all the hand-wringers over the 9th? It seems the 'chicken-little' crowd's fears are a little misplaced. It's not the PoR clause of the 14th amendment they should be worried about. If someone wants to contrive an imaginary right, they already have a better means to attempt it.

 

[Bartholomew Roberts]

I really, really don't get how incorporating an enumerated right (one written in plain language right there in the Bill of Rights) opens the flood gates to any imagined right whatsoever. It's like expecting that my car keys will start every car in the neighborhood.

Incorporating an enumerated right isn't the problem, it is how you get there. Clearly the framers of the 14th Amendment intended the P&I clause to apply Second Amendment protections to the States.

And no one fanning the flames of the "anything goes" argument against PoR incorporation ever bothers to explain how that would work.

Where is the right described in Rowe v. Wade in either the Constitution or the understanding of rights as the Founding Fathers stood them? Look at the Privileges and Immunities as explained in Corywell, can you imagine any penumbras emanating from the rights described there as being part of the P&I?

The whole argument is that P&I only protects the rights envisioned by natural law or the privileges and immunities as it applied at the time of the framing of the 14th Amendment. If we can limit the interpretation of the P&I clause to this, then we have no problem with Pandora's Box - although even then, there is still a great deal of room to debate the extent and number of rights as understood then.

But what happens when we try to bring those rights into the 20th Century? The point about women is an apt one. You cannot get there through an originalist interpretation of the 14th Amendment. You have to supplement that understanding with something else - and almost any one of these "something else's" offers even more vagueness that a more liberal court can exploit.

It seems the 'chicken-little' crowd's fears are a little misplaced.

I think discounting those who are worried about where P&I might lead as the "chicken little crowd" is misplaced and doesn't serve the debate well. Whether you feel those fears are valid or not, those are the fears the Court has and you must address them if you want to get where you want to go.

Second, it isn't like those fears are unreasonable. Four of the current Justices aren't even willing to give meaning to words plainly written in the Bill of Rights when it doesn't suit them. If you are going to give life to a clause of the 14th Amendment that creates unnumbered rights, including about 20 or so vaguely described rights that are expressed, and applies them against the states, then we need to have a clear idea of which rights will pass that test or we have just killed federalism.

See the Ninth Amendment.

If we are looking at an originalist interpretation then that doesn't help us since at the adoption of the 9th Amendment, women did not commonly have a right to contract, a right to hold property, etc.

You cannot get those rights to women through an originalist interpretation of the Constitution as far as I can see, except to say that the originalist interpretation is simply wrong in that instance and we aren't going to abide by it - in which case, why wouldn't we later reach that same conclusion with something else related to P&I?

To put it simply, if the only way the right works is if we have dedicated, unbiased, Constitutional scholars who accept originalist interpretation on the bench - then it just isn't going to work.

 

[maestro pistolero]

Excellent points, BR.

Where is the right described in Rowe v. Wade in either the Constitution or the understanding of rights as the Founding Fathers stood them?

Nowhere, but it was done without the help of PoR, so it doesn't really support the argument against it.

 

[Al Norris]

The argument, by Justice Ginsburg, is facetious on its face.

Slavery was abolished with the 13th amendment. U.S. Citizenship was formally defined and established with the 14th amendment.

Whatever one might think, the originalist argument of the 14th was modified by the 15th amendment:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Again, it was modified by the 19th amendment:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Yet further modified by the 26th amendment:

The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

This progression of amendments certainly modifies those privileges or immunities to include a greater class of citizens than the original P or I of the 14th. It's just not that hard to get from there to here.

 

[BillCA]

Are "rights" distinctively different than priviliges and imunities"? Is one a subset of the other? How do you see that working when asked if the RKBA falls under PorI or under the 2nd Amendment?

In doing some reading today about PorI, our courts have said that these privileges and immunities are "fundamental principles" of citizenship.

Among these are the rights of a citizen of one state to pass into any other state of the Union without molestation. To acquire personal property, to take and hold real estate, to maintain actions in the courts of the state, earn a living, etc.

The justices asked Gura what kinds of things are "PorI" restrictions on the government. Their concern is valid as one could argue that "to feel safe" is a privilige of a US Citizen, or that you have a right to work in your specific industry.

 

[gc70]

Their concern is valid as one could argue that "to feel safe" is a privilige of a US Citizen, or that you have a right to work in your specific industry.

I think the Justices already have views on that question:

JUSTICE SCALIA: Well, what about rights rooted in the traditions and conscience of our people? Would -- would that do the job?
MR. GURA: Yes.
JUSTICE SCALIA: That happens to be the test we have used under substantive due process.

 

[Tennessee Gentleman]

To put it simply, if the only way the right works is if we have dedicated, unbiased, Constitutional scholars who accept originalist interpretation on the bench - then it just isn't going to work.

Which is exactly the caveat George Will puts on using the P&I route.

 

[Al Norris]

Are "rights" distinctively different than priviliges and imunities"? Is one a subset of the other? How do you see that working when asked if the RKBA falls under PorI or under the 2nd Amendment?

Privileges and Immunities is a term of art.

Then, it meant those rights inherent with a free citizen in a free State. Juxtapose that definition with those "rights" granted (or withheld) to non-citizens (alienage laws).

With the 14th amendment, the first section deals with both in two clauses.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. This clause formalizes and defines a U.S. Citizen.

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; This clause set a U.S. Citizen apart from State citizen (you can be a U.S. Citizen, living in a territory, and therefore not have a State citizenship) and protects the rights of national citizenship above whatever protections may or may not be given by an individual State.

nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. This clause protects the rights of aliens. The wording, any person does just that.​

Privileges and/or Immunities can then be seen as the rights of citizens, in particular; while rights, in general, meant the rights of all men, citizen or alien.

Does this help?

 

[Tennessee Gentleman]

I think the Justices already have views on that question:

You see that even though that is just Scalia talking in orals and not binding that standard is quite open and later liberal judges (in the majority now) may make the connections for rights that BillCA speaks of.

 

[hogdogs]

My Favorite Lines...

JUSTICE SCALIA: Is that what you are asserting here, that the States have to allow firearms?
MR. FELDMAN: No.
JUSTICE SCALIA: Is that -MR.
FELDMAN: I -- I didn't think I was.
JUSTICE SCALIA: I didn't think so, either, so why did your last argument make any sense?

I love this exchange! This is the first "oral" I have read in entirety.
Brent

 

[Bartholomew Roberts]

Nowhere, but it was done without the help of PoR, so it doesn't really support the argument against it.

To make an analogy, I would argue that if your child is drawing on the walls with crayon, you want to think real hard before you give him a Sharpie

This progression of amendments certainly modifies those privileges or immunities to include a greater class of citizens than the original P or I of the 14th.

Your argument assumes that the right to vote is symbolic of all the privileges and immunities. While the right to vote is one of the privileges and immunities, it does not represent all of them. From Justice Washington's commentary in Corfield v. Coryell:

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."

As you'll notice (and as Justice Ginsburg would have pointed out had Gura wandered down that road), there are quite a few rights in that list that continued to be denied to women long after the 26th Amendment was passed, particularly in the area of real property ownership and professional pursuits.

So what reasoning do we use to explain why women now enjoy these rights? If we answer that we have just evolved and our understanding is now better, then we have opened a door that you can drive healthcare and every other living thing through. If we take an originalist view based on the time of framing, then we might be able to argue that the framers of the 19th Amendment intended for women to have broader rights of citizenship than just the right to vote; but we still have the problem that they didn't actually write that down and that some states continued to ignore these other rights for awhile.

I don't have a real good answer to that question and I haven't read or heard one yet (though Ilya Shapiro had a short run at it on Volokh Conspiracy). I think that until you can develop an objective test that tells whether a right is a part of the privileges and immunities, the Justices will resist giving P&I its intended meaning simply out of caution - and if the test is basically identical to the one already used for substantive due process, then why open the P&I door when you can get where you are going without doing that?

To me, that seems like the big problem with getting a P&I win - though I think you could just overturn only Cruikshank and say that the right to bear arms is clearly one of the privileges and immunities intended in the 14th Amendment and not go further. I think Stevens claimed a right to travel for the majority under the P&I clause in Saenz v. Roe, so it other than overturning Cruikshank, it wouldn't represent a dramatic expansion.

Maybe Gura thought he could get Stevens on board?

 

[Al Norris]

Your argument assumes that the right to vote is symbolic of all the privileges and immunities.

Not at all. The argument assumes that the franchise was a facet of citizenship.

The following phrase (from Corfield) denotes a specific inclusion of the citizenship rights: "to which may be added, the elective franchise,..." That inclusion was in fact formally added, beginning with the 15th amendment and carried on, through the 26th.

Up until then, Art I section 4 of the original constitution merely provided for the States to pick the time, place and manner (which included the "who"). It also reserved to the Congress, the power to regulate this activity of the States, should it choose to do so. The Constitution never formally declared who could vote. That was left up to the States, until the 15th and 19th amendments.

So citizenship was an evolving standard. That evolution was based upon amendments to the Constitution, as it should be.

That it took the Courts and legislatures of the States time to play catch up, does not negate the facts of the evolution.