Chicago Gun Case Incorporation Lawsuit

[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]

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...

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]

Privileges and Rights

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.

 

[Hugh Damright]

Are there still contemporary arguments against the idea?

I think so. I have not read Fairman, but I have a book which contains all of the congressional debates over the reconstruction amendments, and I have read enough to believe that the 39th Congress did not and would not have passed something which made the USBOR binding against the States. I don't seem to find any debate over the subject, just a couple of radicals saying that they thought the 14th should make the USBOR binding against the States. The Amendment came out of a committee of fifteen, and I find it hard to believe that the committee intended to make the USBOR binding upon the States when they didn't discuss it or draft the amendment so that it declared it. I am not aware that it was discussed in the House, or the Senate, or that the States discussed making the USBOR binding against the States when (supposedly) ratifying the amendment. In general, I think the evidence against incorporation completely outweighs the evidence for it.

I've read Bradfords Original Intentions which firmed up my impression, and I've read enough of Berger's Government by Judiciary to wonder how I could have ever believed that the 14th was intended to make the USBOR binding against the States.

By the way, Berger's book is online, and the chapter on incorporation is at http://oll.libertyfund.org/?option=...itle=675&chapter=106927&layout=html&Itemid=27

 

[Hugh Damright]

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).

I think it was well understood to mean something different.

First off, If we look at the legislative history of the 14th Amendment, beginning with the Freedmen's Bureau Bill, and then the 1866 Civil Rights Act, and then the 14th ... at one point the legislation used the term "civil rights and immunities", and it was changed to "privileges and immunities" to ensure that it was not construed to include political rights. Mostly, they intended to exclude the right to vote. But they said the intent was to exclude political rights. So I don't see how we can say that the 14th's P&I were understood to mean political rights.

And immunities are something that belong to a select group, making them immune to some obligation that the people in general may have ... whereas natural rights, I think, do not belong to a select group but to everyone. I don't see how the word "immunities" is a reference to natural rights.

I think the 39th Congress understood the 14th's P&I to be the same as those spelled out in the 1866 Civil Rights Act. I have a book with all of the congressional debates over the reconstruction amendments, and it has an index which contains "privileges and immunities", so I can reference every single discussion, and I have done so, and I am at a loss as to where we get this idea that privileges and immunities means political and natural rights, much less the idea that it was well understood that way. I do not seem to recall even one quote from a lone radical in the 39th Congress which says that the 14th's "privileges" were political rights or that the 14th's "immunities" were natural rights. But so many radicals said so many crazy things, maybe I just don't remember this one.

 

[Tom Servo]

I've read Bradfords Original Intentions which firmed up my impression, and I've read enough of Berger's Government by Judiciary to wonder how I could have ever believed that the 14th was intended to make the USBOR binding against the States.

You may need to broaden your sources a bit.

Berger wrote with an agenda. Most of his writings betray a personal vendetta he seemed to have against the Warren court, particularly Justice Black. This isn't just my opinion; I was first told this by the history professor who assigned it to me as reading, himself a liberal.

Read Akhil Amar's Further Adventures of the Nine-Lived Cat to see just how many telling omissions Berger made to argue his case, just as Fairman did.

Check out Amar or Michael Kent Curtis for more well-rounded interpretations. As far as original debate and intent, the 39th Congressional Globe is available online in full.

Rhetorical question: If the 14th Amendment wasn't designed to apply the Bill to the States, then what was it for?

Bear in mind, this argument wasn't just an abolitionist fabrication. Georgia Chief Justice Lumpkin, himself a slaveholder and secessionist, found, in Campbell v Georgia (1852), that:

While the amendments to the Constitution of the United States were primarily intended to be restrictive upon the powers of the General Government, and not the Legislatures of the several States--yet they are "declaratory" of great principles of civil liberty, which neither the national nor the State governments can infringe.

 

[Tom Servo]

Please don't take offense, but I'm seeing a lot of "I think" and "it seems" in your arguments. Could you quote book and chapter for us?

I'm not ribbing you; I'd just like the chance to read them.

 

[Al Norris]

Moved 5 posts from the Palmer thread to this one. Corrected Hugh's quote to reflect who he was quoting and from where.

 

[Bartholomew Roberts]

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.

Hugh, you are either getting old and short in the memory or that was a damn disingenuous thing to say as Jim March noted. I know we have discussed exactly where the "privileges and immunities" language comes from before and why that was an important indicator that the 14th was meant to incorporate the 2nd Amendment as well.

As a refresher, the reason the "privileges and immunities" language was used was because one of the explicit stated purposes was to overturn the decision in Dred Scott. The drafters of the 14th Amendment used the same exact language the Supreme Court used in describing rights protected by the Constitution in that case to make the point abundantly clear.

For example (from Dred Scott):

"Consequently, no State, since the adoption of the Constitution, can by naturalizing an alien invest him with the rights and privileges secured to a citizen of a State under the Federal Government, although, so far as the State alone was concerned, he would undoubtedly be entitled to the rights of a citizen, and clothed with all the [60 U.S. 393, 406] rights and immunities which the Constitution and laws of the State attached to that character. "

To give an even better example from the same decision, showing why this is relevant to the Second Amendment AND strongly pointing to how this language was meant to refer to the Bill of Rights:

"More especially, it cannot be believed that the large slaveholding States regarded them[ Negroes ] as included in the word " citizens", or would have consented to a constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public, and in private upon all subjects upon which its own citizens might speak; to hole public meetings upon political affairs, and TO KEEP AND CARRY ARMS WHERE THEY WENT."

I won't belabor the point since I know you have had this discussion more than a few times with people who were very well-educated on the subject.

 

[Tom Servo]

Apologies if this is too much of a a drive-by, but the LA Times had an interesting op-ed today. They're hardly known for their support of the 2nd Amendment, but they reluctantly support this case:

If you support measures to reduce gun violence, as this page does, it's tempting to hope that the court will rule that states aren't bound by the 2nd Amendment. The problem is that allowing states (and cities) to ignore this part of the Bill of Rights could undermine the requirement that they abide by others. (...) This is no time for the court to start picking and choosing when it comes to the Bill of Rights.

 

[maestro pistolero]

I hope, after finding the 2nd to be incorporated, that the majority will be as eager to offer much-needed guidance as to what constitutes a sensitive place, as it was in tossing out that nebulous, vague term in the first place. Perhaps more useful to our point of view, would be clarification of what does NOT constitute a sensitive place.

Another point, if possession, or more accurately bearing were to be limited to the home as Helmke and others disingenuously insist, why would the court even suggest that certain sensitive places may be out of bounds for bearing? Wouldn't they all be out of bounds?

 

[Hugh Damright]

the 39th Congressional Globe is available online in full

Thanks, but I have a book which contains the congressional debates over the reconstruction amendments. I'm only on page 525, but it's a big book with tiny print ... I figure it's about a million words that I've read so far. My view is based upon my study of the congressional record. And also it helped me to read a couple of books about the reconstruction era so I could better understand what the 39th Congress was up to.

the reason the "privileges and immunities" language was used was because one of the explicit stated purposes was to overturn the decision in Dred Scott. The drafters of the 14th Amendment used the same exact language the Supreme Court used

The legislative history that I remember reading shows that the term began as "civil rights and immunties" and was changed to "privileges and immunities" to ensure that it was not construed so as to include political rights.

If the 14th Amendment wasn't designed to apply the Bill to the States, then what was it for?

Bingham thought that a civil rights act would be unconstitutional and that an amendment was required, that was the origin of the 14th.

I think it's probably fair to say that Bingham, at least at some point, designed the 14th to apply the USBOR to the States. I also think it's fair to say that in the end the final version of the 14th was passed with the intent of making the 1866 Civil Rights Act part of the US Constitution. The South was about to regain its representation, it was believed that the act would be repealed, and the 14th was intended to make the act part of the US Constitution where it would take 3/4 of the States to repeal it, thus circumventing the South's representation.

The intent was clearly to end racial discrimination in certain areas. We might argue about what more it did, but certainly it was intended to do that.

If there was a need to make the USBOR binding upon the States, then why didn't the 1866 Civil Rights Act do that?

 

[Hugh Damright]

Immunities

Previously, on another forum, when someone asserted that the 14th's "immunities" was a reference to fundamental rights, I took time to look for any comments in the congressional debates over the reconstruction amendments about the definition of "immunities", and found:

On Feb 28th 1866, Bingham explained that the word "immunities" meant "exemption from unequal burdens".

On Mar 1st 1866, Wilson of Iowa explained that the word "immunities" simply means "freedom or exemption from obligation; an immunity is a right of exemption only, as an exemption from serving in an office, or performing duties which the law generally requires other citizens to perfom. This is all that is intended by the word "immunities" as used in this civil rights bill. It merely secures to citizens of the US equality in the exemptions of the law."

Feb 8th, 1869 Senator Frelinghuysen: "An immunity is an exemption from a duty; not the guarantee of a right."

Apr 5, 1869 Mr. Golladay: "immunities are rights of exemption only, freedom from what otherwise would be a duty or burden."

Apr 6, 1871 Burchard: immunities means "exemption from a burden".


If anyone has additional information, then let's add that to my list. But that is what I found when I looked, and there seems to be no assertion that the word "immunities" is a reference to fundamental rights, natural rights, the bill of rights, or anything of that nature.