Chicago Gun Case Incorporation Lawsuit
- Thread starter Al Norris
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Bartholomew Roberts
Moderator
Actually, I think there will be less. There is less funding available for amici this time around. Heller also benefitted from its groundbreaking status and received a lot of pro-bono work; but the same people who donated the pro-bono work in Heller are probably not going to be able to donate several months of free legal work two years in a row. That tends to get expensive - and the law business took a big economic hit since Heller.
On the other hand, this has the potential to affect a lot more than the Second Amendment, so it may draw in activists from all kinds of different organizations that Heller didn't get...
Actually, it looks like there's been a delay. According to Gura's site, the deadline for the respondent brief has been pushed back to 12/30.
Also interesting:
I'm very curious to see how Henigan tries to spin things. I expect that he'll continue to bemoan the idea that the Court somehow "found" or "created" the right to keep and bear arms from whole cloth in the Heller decision. He'll likely refer to "activist" jurisprudence a few times as well. Then he'll chase his tail a bit, and when he runs out of ideas, he'll beg the Court to consider the "consequences" of their ruling. Think of the children and all.
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here is todays brief
The Petitioner's brief for Incorporation of the Second Amendment was filed today in the Supreme Court.
http://www.chicagoguncase.com/wp-content/uploads/2009/11/08-1521ts.pdf
from calguns http://www.calguns.net/calgunforum/showthread.php?t=241385
The Petitioner's brief for Incorporation of the Second Amendment was filed today in the Supreme Court.
http://www.chicagoguncase.com/wp-content/uploads/2009/11/08-1521ts.pdf
from calguns http://www.calguns.net/calgunforum/showthread.php?t=241385
You may be right. Though I expect them to claim that the Heller decision incorrectly "up-ended" over one hundred years of court decisions that go back to before the civil war. Then drag out the old state's "rights" argument of militia in about 4 paragraphs of historical rationale, just before declaring that the [federalized] National Guard is today's militia. Then I expect him to engage in some cost-benefit doubletalk, toss out some numbers of people harmed by guns and claim Congress has a right to pass laws or delegate regulatory powers to some bureaucratic branch like the Consumer Protection folks. It will not argue the merits of the right or it's history unless it's a passing mention that "everyone back then knew..." therefore our opinion is assumed to be correct.Tom Servo said:
Heller disrupted a bit of precedent, sure, but it was bad precedent and needed to be up-ended.
That's largely what this case is about. Falling back on stare decisis isn't always acceptable. As Gura states,
Just because Slaughterhouse attracted five votes doesn't make it good law.
Gura understands the gravity of what he's asking the Court to do, and he takes a multi-pronged strategy in his arguments that's very persuasive.
I just finished the merits brief and took some notes. I hope I can be forgiven for posting what turns out to be very lengthy thoughts on the brief and the issue of the Privileges or Immunities Clause:
1. Those who have been following the Privileges or Immunities Clause discussion in this thread might be pleased to learn that some of the authorities cited in this discussion (Bingham, Corfield,...etc.) were cited in Alan Gura's merits brief.
2. Curiously, the brief also invokes the abolitionist paper Liberator. No one today doubts that the paper was right then, but the fact remains that back then, it was not exactly a neutral source. I'm not sure how much weight the Court will place on it in search of the original understanding of the phrase. That said, this is a minor quibble.
3. On page 25 (file page 43), I think Gura made a very effective point by noting that even an opponent of the 14th Amendment read "privileges and immunities" the same way its proponents did: It was interchangeable with "rights."
4. I like the fact that Gura applies the principle of original public understanding by examining the popular press back then.
5. On page 60 (file page 78), Gura (rightly, in my opinion) conceded the weakness of the doctrine of substantive due process and recommended the Privileges or Immunities Clause to do the heavy-lifting instead. This will mark a very major change in constitutional law. That said, it will help bring some doctrinal order to the chaos of the 14th Amendment jurisprudence.
6. Gura's brief can be characterized as an onslaught of evidence showing that the phrase "privileges and immunities" was used the same way as "rights." I doubt the city of Chicago can say anything to defend itself against the mountain of evidence summoned by McDonald.
If the city knows its business (though it's far from clear that they do), I would advise them against trying to defend Cruikshank. Instead, they should apply the approaches suggested by the Heller dissenters and the 7th Circuit. That is to say, they should first argue that though the 2nd Amendment is incorporated, localities are still free to pass serious restrictions on the right to keep and bear arms.
Obviously, this argument, standing alone, will meet the same fate that it did in Heller. Which is why it must be supplemented by the 7th Circuit's argument about federalism. Specifically, the city should rely heavily on the 10th Amendment to defend itself against the 14th. The merit of this approach is that it can distinguish itself from Cruikshank by pretending to accept the incorporation of the 2nd Amendment while still rendering the amendment essentially toothless.
I doubt this approach will succeed either. The elephant in the room is this: Most of the Bill of Rights have been incorporated. It will be odd indeed if the 2nd Amendment right which is exercised by about 80 million people in this country is not. That said, at least this approach will avoid defending Cruikshank, which is something that I doubt even the liberal justices will touch with a 10-ft. pole.
I understand, and to a certain extent even sympathize with Hugh Damright's concern about incorporation's impact on federalism. But it is not the place of the courts to decide that the constitutional principle of federalism should override the 14th Amendment. Ultimately, the federal constitution is the product of the voice of the people as expressed through Article V. To have the courts decide the issue would be making the same error the Slaughterhouse Court made and is nothing more than judicial activism of another type. There may be a legitimate argument in repealing or amending the 14th Amendment to restrict the damage it does to federalism. But as it has passed, it is not the place of the courts to stand athwart the will of the people:
- Blackstone's Commentaries on the Laws of England, Book I, Chapter 3
Therefore, to me, the issue is very simple: What was the meaning of the phrase itself? Gura makes a compelling argument that it is interchangeable with rights. A plain reading of the amendment should conclude that it was meant to incorporate federal rights into the states. Gura rightly chose not to delve into the question of whether the rights of state citizenship is incorporate with one another. Aside from the fact that it is not necessary to reach that issue for this case, it also preserves some room for the principle of federalism to operate while ignoring a very thorny issue.
Hugh Damright also previously expressed the concern that the text of the 14th Amendment seems to constitutionalize the 1866 Civil Rights Act. Gura's brief supports that view as well. But to quibble about this point comes dangerously close to re-fighting the Civil War. The fact of the matter remains that does appear to be the intent of the authors of the 14th Amendment. I wouldn't say that the full text of the act itself was incorporated as it obviously was not.
The damage done to federalism can be mitigated by reading the clause narrowly as to apply to only those rights that were commonly acknowledged in the late 19th century.
In conclusion, let me just say that Barron v. Baltimore effectively shielded the states from applying federal rights for 3 decades. It's possible to make an argument that the Framers of the Philadelphia Convention intended things that way. But the passage of the 14th Amendment changed that situation. Complaints about the 14th Amendment being a victors' amendment is really nothing more than an attempt to try to re-fight the Civil War. Ultimately, it is beside the point. The amendment was passed. Unless it is repealed, the courts should enforce it.
1. Those who have been following the Privileges or Immunities Clause discussion in this thread might be pleased to learn that some of the authorities cited in this discussion (Bingham, Corfield,...etc.) were cited in Alan Gura's merits brief.
2. Curiously, the brief also invokes the abolitionist paper Liberator. No one today doubts that the paper was right then, but the fact remains that back then, it was not exactly a neutral source. I'm not sure how much weight the Court will place on it in search of the original understanding of the phrase. That said, this is a minor quibble.
3. On page 25 (file page 43), I think Gura made a very effective point by noting that even an opponent of the 14th Amendment read "privileges and immunities" the same way its proponents did: It was interchangeable with "rights."
4. I like the fact that Gura applies the principle of original public understanding by examining the popular press back then.
5. On page 60 (file page 78), Gura (rightly, in my opinion) conceded the weakness of the doctrine of substantive due process and recommended the Privileges or Immunities Clause to do the heavy-lifting instead. This will mark a very major change in constitutional law. That said, it will help bring some doctrinal order to the chaos of the 14th Amendment jurisprudence.
6. Gura's brief can be characterized as an onslaught of evidence showing that the phrase "privileges and immunities" was used the same way as "rights." I doubt the city of Chicago can say anything to defend itself against the mountain of evidence summoned by McDonald.
If the city knows its business (though it's far from clear that they do), I would advise them against trying to defend Cruikshank. Instead, they should apply the approaches suggested by the Heller dissenters and the 7th Circuit. That is to say, they should first argue that though the 2nd Amendment is incorporated, localities are still free to pass serious restrictions on the right to keep and bear arms.
Obviously, this argument, standing alone, will meet the same fate that it did in Heller. Which is why it must be supplemented by the 7th Circuit's argument about federalism. Specifically, the city should rely heavily on the 10th Amendment to defend itself against the 14th. The merit of this approach is that it can distinguish itself from Cruikshank by pretending to accept the incorporation of the 2nd Amendment while still rendering the amendment essentially toothless.
I doubt this approach will succeed either. The elephant in the room is this: Most of the Bill of Rights have been incorporated. It will be odd indeed if the 2nd Amendment right which is exercised by about 80 million people in this country is not. That said, at least this approach will avoid defending Cruikshank, which is something that I doubt even the liberal justices will touch with a 10-ft. pole.
I understand, and to a certain extent even sympathize with Hugh Damright's concern about incorporation's impact on federalism. But it is not the place of the courts to decide that the constitutional principle of federalism should override the 14th Amendment. Ultimately, the federal constitution is the product of the voice of the people as expressed through Article V. To have the courts decide the issue would be making the same error the Slaughterhouse Court made and is nothing more than judicial activism of another type. There may be a legitimate argument in repealing or amending the 14th Amendment to restrict the damage it does to federalism. But as it has passed, it is not the place of the courts to stand athwart the will of the people:
- Blackstone's Commentaries on the Laws of England, Book I, Chapter 3
Therefore, to me, the issue is very simple: What was the meaning of the phrase itself? Gura makes a compelling argument that it is interchangeable with rights. A plain reading of the amendment should conclude that it was meant to incorporate federal rights into the states. Gura rightly chose not to delve into the question of whether the rights of state citizenship is incorporate with one another. Aside from the fact that it is not necessary to reach that issue for this case, it also preserves some room for the principle of federalism to operate while ignoring a very thorny issue.
Hugh Damright also previously expressed the concern that the text of the 14th Amendment seems to constitutionalize the 1866 Civil Rights Act. Gura's brief supports that view as well. But to quibble about this point comes dangerously close to re-fighting the Civil War. The fact of the matter remains that does appear to be the intent of the authors of the 14th Amendment. I wouldn't say that the full text of the act itself was incorporated as it obviously was not.
The damage done to federalism can be mitigated by reading the clause narrowly as to apply to only those rights that were commonly acknowledged in the late 19th century.
In conclusion, let me just say that Barron v. Baltimore effectively shielded the states from applying federal rights for 3 decades. It's possible to make an argument that the Framers of the Philadelphia Convention intended things that way. But the passage of the 14th Amendment changed that situation. Complaints about the 14th Amendment being a victors' amendment is really nothing more than an attempt to try to re-fight the Civil War. Ultimately, it is beside the point. The amendment was passed. Unless it is repealed, the courts should enforce it.
New here and first post; thank you all for a very informative thread.
Just a couple points that I would like to throw out . . .
1) Does anyone give weight to the explanation Bingham gave to Congress in 1871 (debates on the Enforcement Act) about his intent and understanding in/of the 1st section?
He was apparently asked to define the meaning of the 1st section so Congress could understand what they were enforcing. Bingham says his model was the wording of Art I §10 clauses binding the states guided by the direction of Barron.
The following are Bingham's statements taken from Section VII of Black's dissent (appendix) in ADAMSON V. PEOPLE OF STATE OF CALIFORNIA, 332 U.S. 46 (1947), that begins on page 110 of the opinion:
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2) Is there any incorporation implication in the southern states with discriminatory language (i.e., "free white men") in their constitution's RKBA provisions being forced to rewrite them to conform with the federal 2nd?
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3) Doesn't Presser affirm that the right to arms stands outside the Amendment and that the states are forbidden to disarm their citizens, enforced by a federal power emanating from both the Constitution and the fundamental principles?
I think that the right to arms could be argued to be federally protected from state infringement simply by the Constitution's promise to forever provide a republican form of government. Certainly the republic the framers embraced / established had as a essential (if not inseparable) component, an armed citizenry from which a militia could be drawn.
Essentially, the federal government can not allow one state to act in an un-republican fashion, such as disarming its citizens.
Could that case be made?
(I'm just a construction worker that reads a lot)
Thanks.
Just a couple points that I would like to throw out . . .
1) Does anyone give weight to the explanation Bingham gave to Congress in 1871 (debates on the Enforcement Act) about his intent and understanding in/of the 1st section?
He was apparently asked to define the meaning of the 1st section so Congress could understand what they were enforcing. Bingham says his model was the wording of Art I §10 clauses binding the states guided by the direction of Barron.
The following are Bingham's statements taken from Section VII of Black's dissent (appendix) in ADAMSON V. PEOPLE OF STATE OF CALIFORNIA, 332 U.S. 46 (1947), that begins on page 110 of the opinion:
"I answer the gentleman, how I came to change the form of February to the words now in the first section of the fourteenth article of amendments, as they stand, and I trust will forever stand, in the Constitution of my country. I had read-and that is what induced me to attempt to impose by constitutional amendments new limitations upon the power of the States-the great decision of Marshall in Barron v. The Mayor and City Council of Baltimore, wherein the Chief Justice said, in obedience to his official oath and the Constitution as it then was: 'The amendments (to the Constitution) contained no expression indicating an intention to apply them to the State governments. This court cannot so apply them.'-7 Pet. page 250.. . . .
'In ree xamining that case of Barron, Mr. Speaker, after my struggle in the House in February 1866 to which the gentleman has alluded, I noted and apprehended as I never did before, certain words in that opinion of Marshall. Referring to the first eight articles of amendments to the Constitution of the United States, the Chief Justice said: 'Had the framers of these amendments intended them to be limitations on the power of the State governments they would have imitated the framers of the original Constitution, and have expressed that intention.' Barron v. The Mayor, &c., 7 Pet. 250.
'Acting upon this suggestion I did imitate the framers of the original Constitution. As they had said 'No state shall emit bills of credit, pass any bill of attainder, ex post facto law, or law impairing the obligations of contracts;' imitating their example and imitating it to the letter, I prepared the provision of the first section of the Fourteenth Amendment as it stands in the Constitution, as follows: 'No State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States, nor shall any State deprive any person, of life, liberty, or property without due process of law, [332 U.S. 46 , 115] nor deny to any person within its jurisdiction the equal protection of the laws.'
'I hope the gentleman now knows why I changed the form of the amendment of February, 1866.
'Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States. Those eight amendments are as follows: ( Here Mr. Bingham recited verbatim the first eight articles.)
'These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment. The words of that amendment, 'no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States,' are an express prohibition upon every State of the Union, which may be enforced under existing laws of Congress, and such other laws for their better enforcement as Congress may make. "
'In ree xamining that case of Barron, Mr. Speaker, after my struggle in the House in February 1866 to which the gentleman has alluded, I noted and apprehended as I never did before, certain words in that opinion of Marshall. Referring to the first eight articles of amendments to the Constitution of the United States, the Chief Justice said: 'Had the framers of these amendments intended them to be limitations on the power of the State governments they would have imitated the framers of the original Constitution, and have expressed that intention.' Barron v. The Mayor, &c., 7 Pet. 250.
'Acting upon this suggestion I did imitate the framers of the original Constitution. As they had said 'No state shall emit bills of credit, pass any bill of attainder, ex post facto law, or law impairing the obligations of contracts;' imitating their example and imitating it to the letter, I prepared the provision of the first section of the Fourteenth Amendment as it stands in the Constitution, as follows: 'No State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States, nor shall any State deprive any person, of life, liberty, or property without due process of law, [332 U.S. 46 , 115] nor deny to any person within its jurisdiction the equal protection of the laws.'
'I hope the gentleman now knows why I changed the form of the amendment of February, 1866.
'Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States. Those eight amendments are as follows: ( Here Mr. Bingham recited verbatim the first eight articles.)
'These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment. The words of that amendment, 'no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States,' are an express prohibition upon every State of the Union, which may be enforced under existing laws of Congress, and such other laws for their better enforcement as Congress may make. "
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2) Is there any incorporation implication in the southern states with discriminatory language (i.e., "free white men") in their constitution's RKBA provisions being forced to rewrite them to conform with the federal 2nd?
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3) Doesn't Presser affirm that the right to arms stands outside the Amendment and that the states are forbidden to disarm their citizens, enforced by a federal power emanating from both the Constitution and the fundamental principles?
I think that the right to arms could be argued to be federally protected from state infringement simply by the Constitution's promise to forever provide a republican form of government. Certainly the republic the framers embraced / established had as a essential (if not inseparable) component, an armed citizenry from which a militia could be drawn.
Essentially, the federal government can not allow one state to act in an un-republican fashion, such as disarming its citizens.
Could that case be made?
(I'm just a construction worker that reads a lot)
Thanks.
Since I've just finished skimming the Merits Brief, I have to say that htjyangs' analysis appears to be spot on!
ReelinRod, simply a very good first post. I thank you for your considered questions. Before I attempt to answer them, I would like to thoroughly read Mr. Gura's brief in the full. I'm sure in the meantime, some others will be along shortly, to give you their considered answers. Welcome to the FiringLine.
My own spot analysis of the brief is that Mr. Gura has laid out a rather forceful argument that the Court will have a hard time ignoring.
Oh! Don't worry about the length of your posts. Speaking and analyzing such weighty subjects requires lengthy posts. Um, you've noticed a few of mine, yes?
ReelinRod, simply a very good first post. I thank you for your considered questions. Before I attempt to answer them, I would like to thoroughly read Mr. Gura's brief in the full. I'm sure in the meantime, some others will be along shortly, to give you their considered answers. Welcome to the FiringLine.
My own spot analysis of the brief is that Mr. Gura has laid out a rather forceful argument that the Court will have a hard time ignoring.
Oh! Don't worry about the length of your posts. Speaking and analyzing such weighty subjects requires lengthy posts. Um, you've noticed a few of mine, yes?
Bartholomew Roberts
Moderator
Wow, I am surprised that they spent only 6 pages on the selective incorporation via due process argument. The majority of the brief argues for overturning Slaughterhouse.... they really went all out for it. They did an excellent job as well.
Hey, no guts, no glory
Gura's always said that he believes Due Process incorporation to be the weakest (and most narrow) way of doing it. His part on Due Process, rather than adding it as a possible "way out," claims that Due Process incorporation must be assumed by a verdict consistent with P&I incorporation.
Furthermore, this case does present a really good opportunity to close the books on Slaughterhouse.
Doing that is something that's not only long overdue, but it's something that makes this much more than a "gun rights" case.
Of particular interest is the 7-point dissection Gura does on Slaughterhouse:
- Slaughterhouse Contradicts History,
- Slaughterhouse Rests on a Mis-quotation, Reflecting a Premise Rejected by the Amendment’s Framers,
- SlaughterHouse Is Illogical,
- Stare Decisis Does Not Secure the SlaughterHouse Line,
- SlaughterHouse Is Not Truly Practical (and, Correcting This Court’s Privileges or Immunities Doctrine Would Not Upset Legitimate Reliance Interests),
- SlaughterHouse Is Largely Anachronistic,
- Modern Factual Understandings Render SlaughterHouse Untenable
He quotes Andrew Jackson Rogers, a representative who opposed incorporation because he thought it would dilute states' rights:
Reelin Rod, thanks for one of the best "first posts" I've ever seen! Please stick around. In answer to your questions:
1) I disagree with Bingham's idea that, "these eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment." In the late 18th and early 19th centuries, the protections of the Bill of Rights was largely assumed to apply to state governments. In Campbell v. The State of Georgia, Chief Justice Lumpkin wrote,
Barron dragged the question onto the main stage, and then gleefully strangled it. The 14th Amendment was a way of clarifying and codifying the idea that our rights were to be acknowledged by state governments.
2) That's a good question. Do you know which states still have "free white men" in their Constitutions?
I'd think that, in this day and age, the continued existence of such wording is probably an oversight, and one easily fixed by local action. Still, as long as the phrase was not used as grounds to discriminate, I wouldn't see it being a 14th Amendment issue.
3) Presser was as much about dispersing an armed parade as it was anything else, and it's quite problematic. Its eventual conclusion was to reassert the "states' rights" ideas of Cruikshank.
Hugh Damright
New member
In my view, the 14th says nothing about incorporating the USBOR, and it wasn't properly ratified, so it seems like an incredible stretch to say that it is the will of the people that we have incorporation of the USBOR.
And I think it is exactly the place of the courts to construe the 14th Amendment (and the rest of the US Constitution) so as to preserve the basic frame of government.
Some do ... but wasn't that the same speech where Bingham said that the essence of our frame of government is "centralized power / decentralized administration", and that the States were bound to abide by the USBOR because of a speech by Daniel Webster? Personally, I think Bingham was full of nonsense.
I don't think so ... prior to the 14th there was a Freedmens Bureau Bill which was modified to regard the RKBA, and it was not added to the list of civil rights (which might imply incorporation) but rather it was added to the "equal protection" clause ... I am not aware that any States had to rewrite their Constitutions to conform to the Second Amendment, but rather they had to end discriminatory gun laws.
Possibly, if we were talking about a State disarming all of its citizens ... but on the other hand, I think a republican form of government has police powers and gun laws.
Hugh Damright
New member
But the object, the P&I associated with US citizenship, do not include all of these rights. If they did, then Article IV, Section 2 of the US Constitution would mean that Virginians would have to let citizens from other States vote in our elections, serve on our juries, run for office, and so on. And if the right to be President is a privilege of US Citizenship, that would seem to mean that all US Citizens have a right to run for President, which isn't true. It appears to me that Andrew Jackson Rogers was confused, and that Gura must know better.
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Really? When? Last time I was in New York, I could not carry a gun, lest I run afoul of the Sullivan Act, a law that has the phrase "swarthy immigrants" in its text.
Try getting a CCW in Alabama if you're not white. There are still discriminatory gun laws, and selectively enforced ones, on the state level in several places.
Sure, because Gura just went to Cornell and Georgetown. Those are practically community colleges. He got all his notoriety for arguing some gun case or other when he was in his 30's. It's easy to wonder if he has any clue what he's doing.
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After a thorough reading and some little thought, I fail to see how any honest argument can be advanced that would be contrary to the assumption that the Court utterly failed in its duty to abide by the Constitution as amended.
The key of course, is honesty in your opponents argument.
The one weak point in the argument? In my opinion, he fails to tie the decision of Justice Washington in Corfield to the Bill of Rights itself. Not surprising however, as while there is much scholarship in the socio-economics of the decision, there is little scholarship in its legal sense. Due in part to Slaughter-House itself, I suspect.
I did note that Gura was familiar enough to note that in Corfield, Washington was using the, then, natural rights theory. You can really see this, especially as Gura talks about rights and towards the end, and addresses "alienage" laws. That's all language from the generally dismissed Lockean concepts.
Under the views of rights, at the time of the founding, citizens had rights that didn't always include aliens (and immigrants not yet citizens). It was a common thing back in those days and this view was inherited from the English Common Law.
The single best quote of the entire brief was the last paragraph of part II:
Washington went on to talk about just those little scenarios. States could say, which type of citizen could serve on a jury. Which type of citizen could vote in its elections or even be elected. Add to this, that the Constitution itself is explicit on what type of citizen can be President... Or did you forget that?
Washington defined a 2 part test on the privileges and immunities: (1) They belong, of right (and not merely indulgence) to the citizens of all free governments AND (2) have been enjoyed by the citizens of the several states since independence.
When you apply that to the Bill of Rights, almost all of them satisfy both qualifications.
The key of course, is honesty in your opponents argument.
The one weak point in the argument? In my opinion, he fails to tie the decision of Justice Washington in Corfield to the Bill of Rights itself. Not surprising however, as while there is much scholarship in the socio-economics of the decision, there is little scholarship in its legal sense. Due in part to Slaughter-House itself, I suspect.
I did note that Gura was familiar enough to note that in Corfield, Washington was using the, then, natural rights theory. You can really see this, especially as Gura talks about rights and towards the end, and addresses "alienage" laws. That's all language from the generally dismissed Lockean concepts.
Under the views of rights, at the time of the founding, citizens had rights that didn't always include aliens (and immigrants not yet citizens). It was a common thing back in those days and this view was inherited from the English Common Law.
The single best quote of the entire brief was the last paragraph of part II:
This Court is not merely presented with a situation in which the facts have “come to be seen so differently.” Casey, 505 U.S. at 855. The facts had never been examined by this Court at all. Slaughter-House announced a set of assumptions, which later courts would not re-examine. Notwithstanding the precedent, with respect to the Privileges or Immunities Clause, this is arguably a case of first impression.
Hugh, you really haven't read Corfield v. Coryell. I can tell, because of the way you phrased the above.Hugh said:
Washington went on to talk about just those little scenarios. States could say, which type of citizen could serve on a jury. Which type of citizen could vote in its elections or even be elected. Add to this, that the Constitution itself is explicit on what type of citizen can be President... Or did you forget that?
Washington defined a 2 part test on the privileges and immunities: (1) They belong, of right (and not merely indulgence) to the citizens of all free governments AND (2) have been enjoyed by the citizens of the several states since independence.
When you apply that to the Bill of Rights, almost all of them satisfy both qualifications.
Hugh Damright
New member
I said that Gura ought to know better, but really what I mean to say is that he must know better. I wasn't questioning his education or intelligence but rather I was questioning the integrity of his argument as I understand it (I haven't even read the thing I was just responding to a post). I think Gura must know that Roger's definition of "privileges or immunities" was inappropriate and, as I think I just demonstrated, untenable.
Further, I don't think this type of argument carries much weight ... I think Bradford's Original Intentions refers to this as "diaboli"(?) ... the idea being to take an extreme opposition statement, such as Rogers saying that the P&I was so broad that it "saps the foundation of the Government; it destroys the elementary principles of the States; it consolidates everything into one imperial despotism; it annihilates all the rights which lie at the foundation of the Union of the States" ... and conclude that the majority intended the P&I to be as broad as Rogers was saying.
Hugh Damright
New member
IIRC, Washington said that States could regulate the rights in question, for the common good ... but the point is that Article IV, Section 2 says that the States cannot regulate the P&I so as to discriminate against citizens from other States ... so while Washington may have said that a State can regulate the right to vote, if they can regulate it so as to exclude citizens from other States, then how is it a P&I under Article IV, Section 2?
Again, if the right to run for President is a P&I of US Citizenship, then that would seem to mean that all US Citizens have a right to run for President, and that is not true (because the Constitution says what type of citizen can be President) ... for example, someone from another country may move here and become a citizen of the US, but they still do not have a right to be President, so how is the right to run for President a P&I of US Citizenship?
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