Chicago Gun Case Incorporation Lawsuit

[Gary L. Griffiths]

Jeez, Hugh and Tom, both of you take a chill pill!

Maybe someone should answer Publius' question about whether the court may overturn Slaughterhouse.

I 4 1 am far more interested in what effect the Court's decision will have on the 14th Amendment and state/local gun control laws than what the drafters of the amendment were thinking, whether they were sober, or misused the word "immunity."

 

[Al Norris]

Gary, the kind of stuff you are getting from Hugh, Tom, Bartholomew and myself are exactly what you are going to be reading in all the amici briefs that will be coming in over this case.

I have a feeling that on the one side, will be the strange bedfellows of gun-rights, coupled with all manner of classical liberal thinking, while on Chicago's side, will be the statists.

To answer your question, and that of publius42, I think there is a real chance of the Court reinvigorating the Privileges or Immunities clause of the 14th amendment. Breyer is the only Justice that I really worry about.

 

[maestro pistolero]

I love that the gun rights movement will be the catalyst for the largest expansion of the application of the BOR since the civil war. It will be rich irony to those who think gun owners are stereotypical, bigoted red-necks.

 

[Tom Servo]

Jeez, Hugh and Tom, both of you take a chill pill!

Sorry if my dry sense of humor wasn't coming through there. My debate with Hugh has certainly put me to work and got me thinking, but we're just not seeing eye-to-eye on this. Pillow fight at dawn to settle things, perhaps?

Maybe someone should answer Publius' question about whether the court may overturn Slaughterhouse.

They will likely feel obliged to--that's the only sane outcome. If they don't, it'll take some very creative wrangling to read around it.

I 4 1 am far more interested in what effect the Court's decision will have on the 14th Amendment and state/local gun control laws than what the drafters of the amendment were thinking, whether they were sober, or misused the word "immunity."

They were sober men and true, and attentive to their duty. As for the effects, we'll have to wait and see. Individual restrictions will have to be weighed in the courts, and the process will take years, if not decades. As with Heller, don't expect anything to change overnight.

If you have time, download the oral arguments from the 7th Circuit hearings. Judge Easterbrook is charming and witty as always. Chicago counsel Solomon mentioned that there will likely have to be a new standard of review and scrutiny if P&I incorporation becomes the standard. Easterbrook admonished Solomon for falling back on "tired slogans" about social policy, but he warned that unfettered incorporation would mean that even Chicago's system for issuing parking tickets would come under 7th Amendment scrutiny.

Obviously, there will have to be some middle ground, but the net result will be a standard of very strict scrutiny, meaning it'll be very hard to justify present or future infringements.

Gang, we're getting there, and fast.

I have a feeling that on the one side, will be the strange bedfellows of gun-rights, coupled with all manner of classical liberal thinking while on Chicago's side, will be the statists.

There won't be many of the latter. Notice the relative dearth of hysteria we're hearing on this compared to the caterwauling we heard regarding Heller. The Left can fight a gun case, but they'll have a harder time fighting a civil rights case, especially one that stands to help some of their agendas as well.

Remember, for the cost of one gun rights lawsuit, you get guarantees of the rights to jury trial, grand jury, and protection from excessive fines and bails at no extra charge!

Some will claim to hold their noses at "the gun part," but will come aboard, while others will jump in feet first. We'll have a few "academics" quoting Fairman and Berger (and do please research those!), but they'll be on the fringes of what is one heck of a consensus-building debate.

This is what we call a serious, historical reaching-across-the-divide moment. We could gain a whole new swath of shooters and allies from some truly unexpected quarters.

And when our new friends come around, by all means, be accepting, be kind, and be patient!

 

[Bartholomew Roberts]

What is the point of quoting this or that radical saying they wanted to address suffrage with the 14th when clearly the 14th did not address suffrage?

Hugh, I am a bit confused here. You quote me speeches from 14th Amendment being introduced in the House on May 8th and reading the actual debates from the 39th Congress (not someone else's summary of them), the discussion on May 8th is overwhelmingly about how much they are going to broaden suffrage (along with complaints about the ratification process).

When the bill is introduced into the Senate by Howard, the very same debate reoccurs. The underlying theme in all of this is that everyone openly accepts that the 14th Amendment is going to broaden suffrage. The only question is how much.

Are we reading different debates here?

If you want the exercise, you can make a list of which members of the 39th Congress said that the P&I should include the USBOR, and I can make a list of which members said that the intent was to cover the same ground as the Civil Rights Act, and we can which list is bigger.

Once again Hugh, was there any example of that time of ANY state passing ANY law that limited the rights of white men to less than what they would have received under the Bill of Rights?

If not, then the stated purpose of the Civil Rights Act is to "This amendment supplies that defect and allows Congress to correct the unjust legislation of the States, so far that the law that operates upon one man, shall operate equally upon all."

Using basic logic, it seems you could say the Civil Rights Act and the 14th Amendment cover the same ground. The two statements are not necessarily exclusive. After all, if it wasn't common (or even fathomable) that states would restrict the rights of voting citizens under the Bill of Rights because there was no 14th Amendment, then what exactly are the distinctions between the two bills?

So from my perspective, your exercise is a pointless one since it offers no proof in support of your theory. Especially since the clause being debated, the first clause, is so rarely remarked upon in such comments. And when it is remarked upon, it is usually along the lines of "No man in any State could object to the fairness of this clause" or some similar idea.

Yes, I think Howard's comment was ignored.

So the guy introducing the bill in the Senate makes a statement that the bill will cause what you argue is a radical concept supported by few Senators. And the result is NOTHING? Nobody asks him to clarify that comment or asks him to explain what he means by the eight amendment thing? Instead the first comment from Johnson asking him how broadly he intends the amendment to extend suffrage and whether women will be included?

That strikes me as a strange result in the Senate.

From what little I know about Michael Kent Curtis, this sounds like his results oriented activist "reasoning".

On the contrary, I have several Representatives and Speakers stating that this is the EXPLICIT purpose of the bill. Your only counter is that other people said the amendment covers the same ground as the Civil Rights Act. I have already explained (several times now) why I do not consider that as a contrary statement. Perhaps if you explained why you think it is was obviously a contrary statement I would understand your position better; because frankly, I don't understand it at all right now. To me you look like a guy standing neck-deep in the ocean arguing that water is quite dry. So obviously we aren't communicating our ideas well.

 

[publius42]

Question about Nordyke: will the 9th in that case be the first to apply (and put a spin on) McDonald once it is decided by the Supreme Court?

 

[Hugh Damright]

If we're going to argue about the intended scope of the 14th Amendment, and assert that it embraces political rights, I think we should at least know that black suffrage was excluded i.e. laws which said that negroes could not vote did not violate the 14th. It may seem that the 14th should have included black suffrage, we may notice that some members of Congress expressed a desire for black suffrage and conclude that was the intent, and we may find various textual constructions which lead to the 14th including black suffrage ... but anyone who has seriously studied the question must realize that black suffrage was outside of the intended scope of the 14th Amendment. I consider it to be such an obvious fact that I don't feel much need to support it, but to help end any confusion, I will point out that when Howard made his speech about how the 14th should incorporate the USBOR, he also said that suffrage was excluded:

"It is very true, and I am sorry to be obliged to acknowledge it, that this section of the amendment does not recognize the authority of the United States over the question of suffrage in the several States at all; nor does it recognize, much less secure, the right of suffrage to the colored race ... The second section leaves the right to regulate the elective franchise still with the States, and does not meddle with that right."

Also, I have shown that the term "civil rights and immunities" was rejected over concern that it might bear a construction where the North was forcing black suffrage upon their own States. And I have mentioned that the 40th Congress was elected on the "Chicago Platform" which meant that negro suffrage was to be forced on the South but not the North. I will add that the 14th Amendment recognized suffrage to be an intrastate affair by saying that if a State chose to exercise its right to deny negro suffrage then its representation would be reduced accordingly. And, of course, even the radical reconstruction Congress accepted that the 14th could not be stretched to cover negro suffrage but rather another amendment was needed. Negro suffrage was created with the 15th Amendment, not the 14th, and I think if we're going to argue about the scope of the 14th then we should know these things.

 

[raimius]

Hugh,
What connection are you drawing? I don't see how voting rights connects to anything having to do with firearms, in your post.

 

[Bartholomew Roberts]

Also, I have shown that the term "civil rights and immunities" was rejected over concern that it might bear a construction where the North was forcing black suffrage upon their own States.

I guess I missed where you "showed" that. So Hugh, you are saying that Congress rejected the "civil rights and immunities clause" in the 14th Amendment which was ratified on July 9, 1868 because they didn't want blacks to vote and then turned around and ratified the 15th Amendment that granted such suffrage on February 3, 1870? Tell me what happened in those 18 months that so dramatically changed that? More Southern states rejoining the Union? You don't happen to have strong opinions on the Uniform Commercial Code and UCC 1-207 also do you?

On a more related point to our discussion: if it wasn't common (or even fathomable) that states would restrict the rights of voting citizens under the Bill of Rights because there was no 14th Amendment, then what exactly are the distinctions between the two bills?

 

[Hugh Damright]

What connection are you drawing? I don't see how voting rights connects to anything having to do with firearms, in your post.

In discussing incorporation of the RKBA and the scope of the 14th, it was asserted that the term "privileges" was well understood to mean "political rights". I disagreed, but someone seemed to insist that political rights were within the scope of the 14th. In hopes of making some sense out of the assertion, I asked if they meant to say that political rights other than suffrage were within the scope of the 14th. Then it was asserted that the 14th was intended to incorporate suffrage! I think if we are going to make assertions about the intended scope of the 14th Amendment then we should know a little something about it, at least enough to know that suffrage was excluded.

I was also seeing an analogy between the assumption that the 14th incorporated political rights such as suffrage and the assumption that the 14th incorporated the USBOR ... we might feel that black suffrage should have been within the scope of the 14th, we might be able to quote a couple of radicals saying they desired negro suffrage, we may find ways to analyze the text of the 14th such that negro suffrage was included ... but the evidence to the contrary is completely overwhelming.

BTW, regarding this assertion that it was well understood that "privileges and immunities" included political rights, it occurred to me that Senator Trumbull from Illinois, who was a member of the 39th Congress and engaged in the debates over the 14th Amendment, later (on April 11, 1871) said:

"The "privileges and immunities" referred to in the Constitution are of a civil character, applying to civil rights, and not political rights, and were never so understood."

 

[raimius]

Which begs the question, how did they define each set of rights?
Where would self-defense fall?
Where would the right to arms fall?

What was their basis for their definition?

 

[Tom Servo]

Which begs the question, how did they define each set of rights?
Where would self-defense fall?
Where would the right to arms fall?

Civil rights generally encompass "human" rights, such as freedom of speech, assembly, worship, protection from involuntary servitude, and due process.

Political rights generally protect the right to participate in the political process and hold office. Civil rights were generally considered to apply to people of both genders and all races, while political rights generally belonged to "elites," like landowning white males.

The distinction was largely blurred out during the 20th century. You could say that the 14th Amendment protected civil rights, while the 15th was tailored to protect suffrage, which was a political right.

Of course, voting could easily be considered a civil right as well. Thus the overlap.

RKBA would be considered a civil right. It was a pre-existing, basic human liberty when the BoR was drafted, and even before Reconstruction, women were considered eligible to exercise it. In fact, some of the impetus for the drafting of the 14th Amendment was the confiscation of blacks' firearms in Alabama and Mississippi.

Sidney Clarke, speaking at the 1st Session:

In this respect Alabama is superior to Mississippi, whose rebel militia, upon the seizure of the arms of black Union soldiers, approriated the same to their own use.

Sir, I find in the Constitution of the United States an article which declares that "the right of the people to keep and bear arms shall not be infringed." For myself, I shall insist that the reconstructed rebels of Mississippi respect the Constitution in their local laws, before I will even consider their claims to representation in Congress.

But Alabama is not alone. The "reconstructed" adjutant general of Mississippi, a State which passed laws to prevent persons of color--American citizens--from owning, leasing, or renting real estate, issued an order under date of December 13, 1865, for the disarming the freedment, in which occurs the following sentence:

"In the execution of this order, you will abstain from all unnecessary violence; but should you meet with any resistance, you will employ sufficient force to accomplish your object."

One last thing. Though suffrage was not within the scope of the 14th Amendment, claims for women's suffrage would rest upon the guarantees of the 14th Amendment.

 

[Bartholomew Roberts]

Quote:
In discussing incorporation of the RKBA and the scope of the 14th, it was asserted that the term "privileges" was well understood to mean "political rights". I disagreed, but someone seemed to insist that political rights were within the scope of the 14th. In hopes of making some sense out of the assertion, I asked if they meant to say that political rights other than suffrage were within the scope of the 14th. Then it was asserted that the 14th was intended to incorporate suffrage! I think if we are going to make assertions about the intended scope of the 14th Amendment then we should know a little something about it, at least enough to know that suffrage was excluded.

Hugh, you claimed that "civil rights and immunities" was struck because of concerns that it might be construed to grant political rights such as suffrage. I questioned this claim since the debates surrounding the introduction of the House and Senate make it clear that Congress intends to broaden suffrage anyway - and does in fact do so a mere 18 months after the 14th was ratified. So it makes no sense for the phrase to be struck for the reasons you claim when they clearly intended to broaden suffrage in that Congress.

I did not assert the the 14th was intended to incorporate suffrage and I feel you have misrepresented/misunderstood my point.

BTW, regarding this assertion that it was well understood that "privileges and immunities" included political rights, it occurred to me that Senator Trumbull from Illinois, who was a member of the 39th Congress and
engaged in the debates over the 14th Amendment, later (on April 11, 1871) said:

Please give the post re: Dred Scott a read. The Supreme Court used EXACTLY the term "privileges and immunities" to describe "the right to keep and carry arms." Given the widespread understanding that one of the purposes of the 14th is to overturn Dred Scott, how do you reconcile that language with your interpretation?

"The "privileges and immunities" referred to in the Constitution are of a civil character, applying to civil rights, and not political rights, and were never so understood."

 

[Hugh Damright]

Where would the right to arms fall?

In fact, some of the impetus for the drafting of the 14th Amendment was the confiscation of blacks' firearms in Alabama and Mississippi.

It seems clear to me that the 14th Amendment was intended to address racially discriminatory gun laws in Alabama and Mississippi. But when I question which part of the amendment was intended to address these black codes, and how we get from there to a federal power to strike down nondiscriminatory gun laws, the answers are not as clear.

Before the 14th Amendment there was a Freedmens Bureau Bill which was amended to include the RKBA:

"... civil rights ... including the right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to have full and equal benefit of all laws and proceedings for the security of person and estate, including the constitutional right of bearing arms"

That seems clear enough ... and then came the 1866 Civil Rights Act which said:

" .. right ... to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and covery real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property"

That still seems pretty clear to me, that the intent was to address discriminatory gun laws with the "full and equal benefit" clause, and that the object is a right to full and equal benefit of gun laws ... and then there's the 14th Amendment:

"... privileges and immunities ... due process ... equal protection of the laws"

Now the clarity is lost ... was the intent still to address discriminatory gun laws with the equal protection clause? Some would construe the "due process" clause to create a federal judicial power to review State gun laws. Others would construe the "privileges and immunities" clause to the same end. My impression, based upon my reading of the congressional debates, is that the 14th was intended to cover the same ground as the Civil Rights Act, such that those discriminatory gun laws in Alabama and Mississippi were still addressed by the equal protection clause.

The 14th's equal protection clause says "equal protection of the laws", which seems to mean equal protection of all laws ... but, as we have seen, laws which said that whites could vote and blacks could not vote did not violate this clause. It seems clear to me, despite the wording of the clause, that the intent was to provide equal protection of some laws and not others. So how are we to know what the intended scope was? What makes sense to me is to refer to the Civil Rights Act, where we can see it spelled out that the intent was to provide equal benefit of laws regarding the security of person and property.

Likewise, it seems clear to me that the intended scope of the "privileges and immunities" clause is limited, and for example it does not include political rights. Although I am aware of definitions of "privileges and immunities" which include political rights, my reading of the congressional debates leads me to think that the 39th Congress intended to exclude political rights. My impression is that Congress understood the privileges and immunities to be those enumerated in the Civil Rights Act.

Also, I think it is important that Congress understood the privileges and immunities to be those in Article IV, Section 2:

"The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

Some radicals in the 39th Congress (e.g. Bingham) construed this clause to mean that the States are prohibited from violating certain rights of their citizens, including those enumerated in the first eight amendments. But it seems clear to me that this is an untenable radical construction. As Representative Nicholson from Delaware said (on Apil 7, 1866):

"The employment here, in the first clause of this amendment, of the identical language contain in article four, section two, of the Constitution, seems like an atttempt to force upon it a construction that has always been denied by judicial authorities and commentators upon the Constitution"

[edit] BTW, if I don't seem to be responding to certain posts, it is likely because my ignore list prevents me from seeing them.

 

[LuckyStrike]

I hate to look like a stupid 3rd grader that fell asleep during class right now but can someone explain to me what this Chicago case is all about? In a nutshell

I have no idea what you guys have been arguing about for the last three pages, but I am very curious as to what this current lawsuit/case is all about and what changes will be taking place if this passes?

 

[Tom Servo]

can someone explain to me what this Chicago case is all about? In a nutshell

It's an awfully big chestnut.

Jim March has a good summation here.

I posted a list of reading materials here. In particular, check out Akhil Amar's The Bill of Rights.

The Heller decision acknowledged that the 2nd Amendment did guarantee an individual right to firearms ownership. However, Washington DC is an enclave of the federal government, and the Court was not asked to rule whether or not the protections of the 2nd Amendment applied against the states.

We're seeking to have that question answered: is it constitutional for states to infringe on certain rights while the Federal government cannot? The 14th Amendment says no.

Unfortunately, the 14th Amendment was largely whittled away by the same Court that made the decision that led to the Civil War, which led to the drafting of the 14th Amendment (hey, it's late. That sentence is just fine in Latin )

Hit Wikipedia and look up the Slaughterhouse Cases and United States v Cruikshank.

We expect the Supreme Court to apply the protections of the 2A against the states. In doing so, they will have to revisit (and likely, overturn) those cases under which they originally undermined the 14th Amendment. This seems extremely likely.

Anyhow, get to reading! The drafting of the 14th Amendment makes for a fascinating story.

 

[Bartholomew Roberts]

Some radicals in the 39th Congress (e.g. Bingham) construed this clause to mean that the States are prohibited from violating certain rights of their citizens, including those enumerated in the first eight amendments. But it seems clear to me that this is an untenable radical construction. As Representative Nicholson from Delaware said (on Apil 7, 1866):

"The employment here, in the first clause of this amendment, of the identical language contain in article four, section two, of the Constitution, seems like an atttempt to force upon it a construction that has always been denied by judicial authorities and commentators upon the Constitution"

I just looked at the Congressional Globe for the 39th Congress for the entire day of April 7, 1866 (pages 1820-1838 or so of The Congressional Globe) and was unable to find the quote from Representative Nicholson. It is possible I missed it in the record, given the amount of information covered by the House of Representatives in that particular Saturday session; perhaps if you had a more specific page reference?

In any case, it appears that Rep. Nicholson agreed with the construction Bingham suggested based on his comments.

I did find this discussion regarding "privileges and immunities" from Rep. Lawrence in a six page dissertation on civil rights given as a House speech.

The Constitution does not define what these privileges and immunities are; but all the privileges and immunities are of two kinds, to wit, those which I have shown to be inherent in every citizen of the United States and such others as may be conferred by local law and pertain only to the citizen of the State.

But conceding, as the courts have held, that the privileges and immunities referred to in the Constitution are such as are fundamental civil rights, not political rights nor those dependent on local law

Page 1836 of the Congressional Globe - 39th Congress

 

[publius42]

I have no idea what you guys have been arguing about for the last three pages

Really? These discussions between Hugh and Bartholomew seem so clear and simple to most people!

 

[Bartholomew Roberts]

Really? These discussions between Hugh and Bartholomew seem so clear and simple to most people!

OK, quick background:

For a long time, the Courts (Barron vs. Baltimore) had held that the Constitution was only a restraint on the FEDERAL government. The States were free to do whatever they liked within the constraints of their own Constitutions. However, as a practical matter, I can’t find any example of the States attempting to restrain the rights of citizens under the first eight amendments to the Bill of Rights.

However, blacks were regularly denied the protections of the Constitution by state laws. The 14th Amendment was introduced to overturn Dred Scott and make sure that all citizens were treated equally by the law regardless of race. However, the question is “How did it intend to do this?”

The bill was introduced in the Senate by Howard as “incorporating the first eight amendments” and the stated purpose of one of the bill’s primary drafters (Bingham) was to allow the federal government to step in and enforce the Bill of Rights against the States. However in a decision called “the Slaughterhouse Cases” the Supreme Court ruled that the “privileges and immunities” protected by the 14th were not the fundamental rights outlined in the Bill of Rights.

The majority position among legal scholars these days is that the Court ignored the plain intent of the 14th Amendment to derail the amendment and re-assert some measure of Barron vs. Baltimore. However some academics* have argued that the 14th Amendment did NOT intend to incorporate the Bill of Rights and that the Slaughterhouse Court was essentially correct. The controversy was never really resolved since later Supreme Courts invented the doctrine of selective incorporation through the due process clause of the 14th Amendment to apply the Bill of Rights to the States without explicitly overruling Slaughterhouse (the Supreme Court is very reluctant to reverse itself; but does occasionally undermine previous precedent or narrow it to the degree that it is practically overruled).

Why is this important to RKBA? Currently almost all of the Bill of Rights has been incorporated against the States through the doctrine of selective incorporation. One exception to this is the Second Amendment – and that is what McDonald is about. Gun rights proponents have asked the Court to not only apply a due process selective incorporation analysis – they have also asked them to explicitly overrule Slaughterhouse. This gives us two separate ways to win at the Supreme Court level.

Tom and I are taking the position that the clear intent of the 14th Amendment was to incorporate the Bill of Rights against the States. Hugh is taking the more controversial** minority position that the 14th Amendment was only intended to apply the law equally regardless of color. At the time the 14th Amendment was passed, the distinction would have been such a minor one that you could say they were saying the exact same thing since practically no state infringed on the rights listed in the Bill of Rights (except against blacks and non-white races specifically). However, now it is a big distinction. If the 14th was intended to allow the Feds to apply the Bill of Rights to the states, then the Second is automatically applied against the States. If the Feds only intended that any law the States passed was enforced equally regardless of color; but still wished to allow States to restrict the Bill of Rights, then we have to win on the selective incorporation through due process argument in order to score a victory in McDonald.

Realistically, overturning Slaughterhouse would not only apply the Bill of Rights to the states but other implied rights found in the Constitution as well. From a legal perspective, it would change the foundation of a lot of current Constitutional law and would certainly have broader implications than just the Second Amendment. For that reason, it might be an attractive option for liberal Justices on the Court who would otherwise be disinclined to apply the Second to the States. However, it also makes it a long shot option.

* Academics , particularly legal scholars, have to “publish or perish.” One popular way to make a name for yourself is to tackle rarely examined or obscure topics. Another way is to challenge the dominant majority opinion among legal scholars. For example, Sanford Levinson, author of The Embarrassing Second Amendment, is not actually a big supporter of RKBA and is fairly liberal; but the Second Amendment was mostly overlooked by academia at the time. By taking a contrary position in an obscure area of law, he generated a lot of interest in his article.

** Hugh’s position is controversial because other than a minority of legal scholars/academics, the idea that the 14th was never intended to incorporate the Bill of Rights in any fashion is very popular among various white supremacist/sovereign citizen groups. So it tends to be controversial by association.

 

[jontz]

Hey Tom,

I posted a list of reading materials here.

Your link is the same link as you gave for Jim's summary, in case you want to correct it.