Chicago Gun Case Incorporation Lawsuit

[Tennessee Gentleman]

One exception to this is the Second Amendment – and that is what McDonald is about.

Is that the only exception? I thought some other parts of the BoR were not as well. Grand Juries and Quartering of Soldiers maybe?

 

[Tom Servo]

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

Sorry! Correctified.

Is that the only exception? I thought some other parts of the BoR were not as well. Grand Juries and Quartering of Soldiers maybe?

IIRC, the 3rd Amendment has been incorporated. The right to a Grand Jury remains unincorporated. So do protections against excessive fines and bail.

 

[Hugh Damright]

you are saying that Congress rejected the "civil rights and immunities clause" in the 14th Amendment ... because they didn't want blacks to vote and then turned around and ratified the 15th Amendment that granted such suffrage ... what happened in those 18 months that so dramatically changed that? More Southern states rejoining the Union?

Yes, I think that was the biggest factor, that the South was regaining its representation. The yankees said that they would either have to keep the South under permanent military rule or else create a loyal black vote. They also calculated that a black vote might give the Northern Party a few Northern States. Some said that the Northern Party had grown too radical for the white race. Their plan worked, with Grant winning the Presidency only because of the black vote. So what happened was that the North swallowed the "bitter pill" of negro suffrage to keep their party in power. It got to where it wasn't a question of whether or not they wanted negro suffrage, they needed it to stay in power. Because the South was regaining its representation, and because the Northern Party had grown too radical for the white race.

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 intent was to "overturn Dred Scott" or rather to amend the US Constitution to make negroes into citizens. It does not follow that the intent was to incorporate Taney's dicta regarding privileges and immunities. I am not aware that even one person in the 39th Congress said that he understood the term "privileges and immunities" to have been chosen with the intent of incorporating Taney's dicta regarding the RKBA. I have already said that I consider this to be such an obviously "results oriented" approach that it leaves me feeling uncomfortable. The term "privileges and immunities" was borrowed from Article IV, Section 2, not from Taney's dicta.

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.

Sorry, my reference is confusing ... it was not April 7th, it was April 21st (page 2080, middle of third column).

 

[Bartholomew Roberts]

Is that the only exception? I thought some other parts of the BoR were not as well. Grand Juries and Quartering of Soldiers maybe?

No, it is not the only exception. It is one of the few exceptions remaining.

Because the South was regaining its representation, and because the Northern Party had grown too radical for the white race.

That is the thing though - this debate had started LONG before the 14th Amendment was ratified. As I noted earlier, there is a general consensus during the opening debates on the 14th that suffrage is going to be granted to blacks. So I do not see how there can be that concern.

I am not aware that even one person in the 39th Congress said that he understood the term "privileges and immunities" to have been chosen with the intent of incorporating Taney's dicta regarding the RKBA

I am also not aware of any explicit statement that the term "privileges and immunities" was selected as a specific result of Taney's dicta; however as the debates show, the 14th was clearly a response to Dred Scott and concern about blacks being disarmed was also a part of the debate over the 14th.

We do have Rep. Lawrence's proclamation that the term "privileges and immunities" is meant to encompass fundamental civil rights. Reading all the various commentary together, there seems to be a general understanding that the 14th addresses fundamental civil rights (such as RKBA).

 

[Tom Servo]

Some said that the Northern Party had grown too radical for the white race. Their plan worked, with Grant winning the Presidency only because of the black vote.

I think I'd like to see a source for that, since it's not only untrue but impossible.

So what happened was that the North swallowed the "bitter pill" of negro suffrage to keep their party in power. It got to where it wasn't a question of whether or not they wanted negro suffrage, they needed it to stay in power. Because the South was regaining its representation, and because the Northern Party had grown too radical for the white race.

The phrase, "the Northern Party had grown too radical for the white race" intrigues me, especially since you use it twice, verbatim. Are you quoting from someone directly, and if so, whom?

President Grant was elected before the 15th Amendment passed. Even after its passage, things like poll taxes and literacy tests put voting out of the hands of many Freedmen. It would be 1965 before black suffrage was truly protected.

"Negro suffrage" didn't exist during Grant's campaign, and during his Presidency, it was just not pervasive enough to influence national policy one way or another.

 

[Hugh Damright]

I'd like to see a source for [the assertion that Grant won the Presidency because of the black vote], since it's not only untrue but impossible.

Well, there is a lot to take in when trying to comprehend the reconstruction era, and it's easy to get confused ...but I clearly remember reading that Grant won because of the black vote ... OK, I Googled "grant presidency and black/negro vote" and I see a book called The Reconstruction era: primary documents on events from 1865 to 1877 by Donna Lee, page 291:

"In the election of 1868, Ulysses S. Grant won ... but his 300,000 vote margin (out of 5.7 million votes cast) was solely because of the black vote in the South. In the next presidential election, the Republicans would need the votes of the blacks in the North and border states if the party was to stay in the White House."

But I've never read this book, I was just trying to find some easy reference.

The phrase, "the Northern Party had grown too radical for the white race" intrigues me, especially since you use it twice, verbatim. Are you quoting from someone directly, and if so, whom?

I am paraphrasing opposition statements in the congressional record.

 

[Hugh Damright]

I believe I entered this discussion to suggest certain uses of the words privileges/immunities/rights by using an example, that the SCOTUS might find the right to keep a gun in the home to be a "privilege or immunity" associated with US citizenship (i.e. "incorporate" it), and they might find the right to carry a concealed weapon to be a "privilege or immunity" associated with State citizenship (i.e. an intrastate affair beyond the reach of federal government). Someone raised another view, where there is only one kind of P&I, those associated with US citizenship, and that the very term "P&I" is a reference to fundamental rights which must be federally protected. And we explored what the term "privileges or immunities" means, and where it came from. But it seems like there is a rub here, two constitutional theories which can't both be right ... in one view there are P&I associated with US citizenship and P&I associated with State citizenship ... and in another view all P&I are associated with US citizenship.

 

[Bartholomew Roberts]

Just got a list of some good discussions of the same subject (the "privileges and immunities" clause and the 14th) from Dave Kopel's Newsletter.

'This Right is Not Allowed by Governments that are Afraid of the People': The Public Meaning of the Second Amendment When the Fourteenth Amendment was Ratified
Clayton E. Cramer, Nicholas James Johnson, and George A. Mocsary
Working Paper Series
October 19, 2009
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1491365


"If the Fourteenth Amendment is found to incorporate the Second Amendment against the states, what meaning of the Second Amendment does it include? This paper examines judicial and popular understandings of the Second Amendment in the period between ratification of the Bill of Rights and the Fourteenth Amendment." The text of the article may be downloaded from one of the sites linked to the Social Science Research Network's site.


Background Reading for Supreme Court's New 14th/2d Amendment Case
David Kopel
The Volokh Conspiracy
September 30, 2009
http://volokh.com/2009/09/30/background-reading-for-supreme-courts-new-14th2d-amendment-case/


Dave here offers a collection of material for those wishing to acquire background for the NRA v. Chicago case.

7th Circuit decision in NRA v. Chicago
Dave Kopel with Jon Caldara
Dave Kopel's Second Amendment Podcast
June 4, 2009
http://audio.ivoices.org/mp3/iipodcast307.mp3


Jon Caldara and Dave discuss the 7th Circuit decision in NRA v. Chicago.

The Privileges and Immunities Clause
Dave Kopel with Rob Natelson
Dave Kopel's Second Amendment Podcast
July 23, 2009
http://audio.ivoices.org/mp3/iipodcast319.mp3


Dave interviews University of Montana law professor Rob Natelson about Natelson's research on the original meaning of the Article IV provision: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." 46 minute podcast.

 

[RDak]

Hugh, if many States during Reconstruction, prohibited free speech, freedom of religion and/or the right to keep and bear arms, do you think the 14th Amendment would have been considered to apply to the States?

ETA: Or do you think there would never have been a 14th Amendment introduced if the only violations to the BOR's involved the 1st and 2nd Amendments?

 

[Yellowfin]

It was much simpler than that. The 14th Amendment nullification by the Slaughterhouse ruling was to protect the big city political corruption and power of places like NYC and New Orleans. There were too many big powerful political figures who simply couldn't be allowed to lose their clout. The P&I clause and equal protections was the core issue of the case as the big players in city government could pull strings and exert big power, no more no less. It's exactly why the sheriffs in SF, LA, and Santa Clara counties in California do as they do and NYPD, NJ, and Maryland's police system withhold CCW's for all but the rich and powerful. It's about power, control, and the ability to grant favors.

 

[Hugh Damright]

Hugh, if many States during Reconstruction, prohibited free speech, freedom of religion and/or the right to keep and bear arms, do you think the 14th Amendment would have been considered to apply to the States?

ETA: Or do you think there would never have been a 14th Amendment introduced if the only violations to the BOR's involved the 1st and 2nd Amendments?

The scenario is so far removed from my view of reality that I find it hard to respond. The 14th was needed for a number of reasons unrelated to the USBOR. For one thing, freeing the slaves made the Southern negroes count as a whole person rather than 3/5 of a person, which increased the South's representation, and yankees felt a need to deal with that. But as for the first section of the 14th, I think it has nothing to do with the USBOR, and everything to do with Article IV, Section 2.

What makes sense to me is to see the 14th as being intended to address black codes, and then to focus on the worst black codes - the States that had constitutions which said that no negroes were allowed. We can take the Southern black codes and the USBOR out of the picture, and we are still left with a most serious problem ... the 13th turned the slaves into freedmen, and the States had a right to exclude negroes. What if every State excluded negroes? Where were the negroes to go?

As an analogy, what if a State had a Constitution which said that no Virginians could enter? I think it is clear that such a law would violate Article IV, Section 2. The 14th was needed to make the freedmen/negroes into citizens, so that the federal jurisdiction delegated by Article IV, Section 2 would apply to them as well. But the 14th went further, because Article IV regarded a federal power to prevent a State from discriminating against citizens from other States, while the 14th regarded a federal power to prevent a State from discriminating amongst its own citizens.

I think that Article IV, Section 2 was needed to make the US partly national, such that a citizen of one State could go to another State and have, to some degree, the same rights that citizens of that State had. And the 14th Amendment was needed to make the freedmen into citizens, such that they could go to (or remain in) any State and have, to some degree, the same rights as other citizens there. I don't believe that either provision, Article IV or the 14th Amendment, was intended to make the USBOR binding against the States, it appears to me to be just the same old radical misconstruction, intended to make it appear constitutional for the federal government to stick its nose where it doesn't belong.

 

[Tom Servo]

it appears to me to be just the same old radical misconstruction, intended to make it appear constitutional for the federal government to stick its nose where it doesn't belong.

This is really the crux of the counterargument, but I think it's misplaced. When the Thune amendment was being heard, we heard liberals (of all people) screaming about how such a measure would trample the 10th Amendment.

There are those who believe that aspects of Reconstruction, including the 14th Amendment, also ran counter to the 10th. The phrase "States' Rights" often comes up. They're missing one essential point.

The 14th Amendment doesn't infringe on rights. States don't have rights--individuals do. The 14th was written to protect rights upon which no legitimate government, state or federal, can infringe.

This isn't to say that states should not be allowed to try their own approaches and address regional concerns; they simply may not compromise the fundamental rights of their citizens. That's what the 14th Amendment was meant to address.

 

[RDak]

I see Hugh. Thanks for the response.

I disagree in the sense that the 14th Amendment was written to prohibit the denial of fundamental rights even though that amendment may have been "triggered" by the ex-slave situation at the time.

 

[Al Norris]

I have not argued with Hugh, here, mostly because Bart and Tom are doing an excellent job, without my 2 cents being added. Hugh however, continues to blindly cling to a history and meaning that never was, and may confuse some who aren't as well read as others here.

Therefore, I offer the following commentary.

Art. IV Sec. 2 of the U.S. Constitution:

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

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due.​

The first clause merely guarantees that a citizen of one State, traveling to another State, will enjoy the same rights (Privileges and Immunities - see my post, #50 for a brief, but accurate synopsis) as the citizens of that other State.

The second clause, above, provided for extradition of criminals to the State where the crime was committed.

With the passage of the 13th amendment (slavery abolished), clause 3, above, was superseded and rendered null.

Because of a Supreme Court case in 1833, Barron v. Baltimore, it was held that the BOR had no affect upon the States. The BOR was only a prohibition upon the Federal Government. That's the way things stood for the next 35 years.

The 14th amendment (1868) changed all of that. And that is precisely the core of the current argument. The Court in Slaughter-House, 1873, either refused to abide by the new powers of the federal government to force the States to abide by the BOR, and/or it refused to acknowledge that Barron was overturned in a completely constitutional manner.

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.​

Clause 1, Section 1 of the 14th amendment officially creates dual citizenship, much like the dual sovereignty of the States and the Central governments in the original constitution. Citizens are now both citizens of the State in which they reside, (but more importantly, for the purposes of the 14th) and citizens of the U.S., that is, the Federal Government.

Hughes arguments that U.S. citizenship existed before this is merely a de facto1 argument. the 14th makes it (U.S. Citizenship) de jure.2

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;​

Clause 2 gives primacy to U.S. citizenship over State citizenship. It is this clause that overturns the decision of Barron and its progeny. The BOR (amendments 1 thru 8) is now in full force against the States.

However, it is this very clause, the the Majority in Slaughter-House rendered null.

All this and more must follow if the proposition of the plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever, in its discretion, any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects. And still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. The argument, we admit, is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when, in fact, it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people, the argument has a force that is irresistible in the absence of language which expresses such a purpose too clearly to admit of doubt.

We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.

With that statement in 1873, the Majority reads out of the amendment its chief purpose: To ensure that the Privileges or Immunities of all U.S. Citizens be fully recognized and protected by the States themselves.

Hugh Damright, like Justice Miller and the Majority, refuses to recognize the implicit fact that Federalism had changed.




1. de facto: existing in fact, whether by actual law or not.
2. de jure: existing in law.

 

[htjyang]

I guess I fall somewhere between Hugh Damright and his opposition. In my view, the Privileges or Immunities Clause incorporates federal privileges and immunities into the states, but not state privileges and immunities with each other.

 

[gc70]

While I agree with the sentiment expressed above in post #114, I am extremely troubled by the dissenting opinions in Slaughterhouse. The dissenting justices wrote eloquently about "privileges" and "immunities" but never stated that they embraced the rights enumerated in the US Constitution's Bill of Rights. IMHO, citing the Bill of Rights would have been a logical starting point for the dissenting justices, but that starting point is conspicuously absent from their writings.

My reading of the dissenting opinons points to an interpretation that the 14th amendment addressed equal protection under the laws of specific states.

What the clause in question [Article 4, Section 2, Clause 1] did for the protection of the citizens of one State against hostile and discriminating legislation of other States, the fourteenth amendment does for the protection of every citizen of the United States against hostile and discriminating legislation against him in favor of others, whether they reside in the same or in different States. If, under the fourth article of the Constitution, equality of privileges and immunities is secured between citizens of different States, under the fourteenth amendment, the same equality is secured between citizens of the United States.

Thus, Article 4 protected a citizen of Maryland from being treated differently from a citizen of Virginia under Virginia law, while the 14th Amendment protected citizens of Virginia from being treated differently from other citizens of Virgina under Virginia law. In short, the 14th extended Article 4 equal treatment on an intra-state basis.

 

[Hugh Damright]

In my view, the Privileges or Immunities Clause incorporates federal privileges and immunities into the states

I think that a significant number of people saw it that way, and that it is an accepted construction. It makes some sense to me, but I can't seem to ignore the many statements that (the first section of) the 14th equated with the Civil Rights Act. It just looks to me like, in the end, they rallied around the 14th as a way to make the Civil Rights Act part of the US Constitution so that the Southern States could not repeal it when they regained their representation.

Regardless, as Senator Trumbull said on that April 11th in 1872:

"you have not advanced one step in the argument unless you can define what the privileges and immunities of citizens of the United States are"

Trumbull went on to say that he understood the privileges and immunities to be those which the federal government was bound to protect, whether a citizen was in one of the united States or in a foreign State, and that this power existed before the 14th. A number of people seemed to say something similar, that the provision was there all along, as if the 14th left the Constitution where it found it. Bingham construed Article IV, Section 2 so as to make the USBOR binding upon the States and saw the the 14th as creating a power to enforce that existing provision. And Senator Poland from Vermont also said that the 14th's "privileges and immunities" clause secured nothing beyond what was originally intended by Article IV, Section 2 ... but I don't know what he meant when he said it.

The dissenting justices wrote eloquently about "privileges" and "immunities" but never stated that they embraced the rights enumerated in the US Constitution's Bill of Rights.

It seems to me that whenever the P&I were described, they had little if any resemblance to the USBOR. And it occurs to me that while activists like to quote Howard ad nauseum, he didn't actually say that the P&I included the USBOR, but quite the contrary, he said that to these P&I should be added the rights enumerated in the first eight amendments.

 

[Tom Servo]

It seems to me that whenever the P&I were described, they had little if any resemblance to the USBOR.

Hugh, if "Privileges or Immunities" are not the fundamental rights of citizens, then what are they?

Taney used "privileges" and "rights" interchangeably in Scott v. Sanford (and Waite would do the same in Cruikshank) when describing rights. The choice of the terms "privileges" and "immunities" by the drafters of the 14th Amendment was a deliberate response to this.

Even Charlie Easterbrook, who refused incorporation of the 2nd Amendment in the 9th circuit, believes this interpretation of the clause.

(He also hates Space 1999, but he and I will just have to agree to disagree on that one.)

 

[RDak]

Hugh, if "Privileges or Immunities" are not the fundamental rights of citizens, then what are they?

That's what I was attempting to ask Hugh in my previous post Tom. Maybe I should have just asked that direct question?

Al: Thanks for the info. in your post above!

 

[Al Norris]

One of the best places to begin to understand what was meant by the Art. IV Sec. 2 clause 1, would be to read the opinion of Corfield v. Coryell (6 Fed. Cas. 546, no. 3230 C.C.E.D.Pa. 1823). The opinion was authored by Justice Bushrod Washington.

Why would this be a good place to start?

Justice Washington had studied law under Justice James Wilson. He replaced Wilson on the Supreme Court in 1798. Washington had been a member of the Virginia ratifying convention. Washington voted in favor of the Constitution. Washington therefore, was one of the surviving members of the time the Constitution was written and his opinion in Corfield, which built upon several other State and lessor federal decision, is of great importance in understanding original meaning.

Justice Washington lived at the time of the writing of the Articles of Confederation. He knew that the Constitution was made "in order to form a more perfect union" than was possible under the Articles.

He was most aware of the Lockean principles of rights, or privileges and immunities, that all citizens held under a free government.

It remains one of the few judicial commentaries on the P&I clause that embraced those rights, both natural and political:

The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.

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."

You won't find any "right to travel" in the BOR. Why? Because it was such a fundamental right that no one thought it needed to be mentioned, except by inference, in the P&I clause.

You won't find a right to protect your property, for the same reasons. Under Lockean principles, the basic rights were Life, Liberty and Property. Self-defense was considered an act of property rights. You owned your person and therefore had a right to defend that person. Just as you had a right to defend any of your property from any unjust taking.

You don't have to agree with these "natural law" rights. What you do have to do is to agree that the men of the founding era did believe in these principles and acted upon them.

It was therefore understood, at the time of the founding, that certain fundamental rights were enjoyed by all citizens, regardless of what State they were citizens of. It was unthinkable, at that time, that a State would consider trampling the rights of its citizens.

But come the Civil War and the States did exactly that.

The 14th amendment was much more than a simple vehicle to ensure the constitutionality of the Freedman's Bureau Act. It was meant to allow the federal government the necessary means to enforce the rights of all citizens upon the States. The amendment does this by creating and elevating US Citizenship above that of State Citizenship.

All the States must now protect the Privileges or Immunities of US Citizens.

Justice Washington, "riding circuit" in Corfield, stated that the list he gave was not inclusive, but only listed some of the fundamental and basic privileges and immunities of citizenship. If he had bothered to render that "tedious" task of defining all the rights, we can be sure that freedom of speech, the press, assembly, religion, defense of self and ones property, would have been listed. These and many more.

These are all fundamental rights, basic to the ordered liberty of citizens under a just and free government. And that is how we get to the inclusion of the BOR within the 14th amendments first clause.

The fact that the dissenters in the Slaughter-House Cases did not mention this may be nothing more than it was an accepted fact among the dissenters. Self evident, is a term that comes to mind. Unlike legal wrangling today, the omission of such did not necessarily mean it was excluded.

The one thing we can take away from the Slaughter-House Cases is that the majority of the Court refused to render the amendment its meaning. They literally refused to believe that the American people wanted such a profound change in Federalism.

Next week, Monday the 16th to be exact, Alan Gura will have submitted his brief in McDonald. I suspect this brief will become one of the major legal writings on 14th amendment meaning, if not the seminal monograph.