Chicago Gun Case Incorporation Lawsuit

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Hugh Damnright said:
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.
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You seem a little inconsistent in your interpretations, Hugh. On the one hand, Johnson, Howard, Wilson and the others are all radical malcontents who everyone ignored without even challenging the crazy things coming out of their mouth; on the other the interpretation you advance is but one of many possible interpretations (and one suggested by an opponent of the 14th) and not necessarily a correct one.... for example:

14th Amendment said:
Section 1. 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
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Looking at that, I fail to see how a state saying that jurors, voters, etc. must be residents would fall afoul of the 14th Amendment. I don't think the interpretation put forth is tenable.

However, I do think it interesting that one of the opponents of the 14th decried it because it "attempts to put the Freedmen's Bill into our Constitution" - not only does he use language similar to the argument you have been making - that the 14th Amendment duplicated many of the provisions of the Civil Rights Bill; but he carries it to its logical conclusion - that the 14th Amendment changes the Constitution to give the federal government power to enforce the privileges and immunities of citizens against the States.

Frankly, I think Gura's brief pretty well addresses your points more soundly than I could have.
 
Thanks for the welcome and the compliments. I'm new here but I'm no newbie. ;)

Hugh Damright wrote:

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.

Tom Servo wrote:

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.
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Section 5 of the First Reconstruction Act (March 2, 1867) made the removal of such language a condition for re-admittance to the Union (together with ratification of the 14th Amendment):

"That when the people of any one of said rebel States shall have formed a constitution of government in conformity with the Constitution of the United States in all respects, . . . and when such constitution shall provide that the elective franchise shall be enjoyed by all persons as have the qualifications herein stated for electors of delegates, . . . and when said State, . . . shall have adopted the amendment to the Constitution of the United States, proposed by the Thirty-ninth Congress, and known as article fourteen and when said article shall have become a part of the Constitution of the United States said State shall be declared entitled to representation in Congress, . . . "​

Ten rebel states held constitutional conventions between 1867-68 that produced constitutions in alignment with the US Constitution. Tennessee did not do so until 1870. Arkansas, Florida and Tennessee had the "free white men" qualifier prior to 1867; all were rewritten, removing the discriminatory language:

Arkansas:
"That the free white men of this State shall have a right to keep and to bear arms for their common defence." Art. II, § 21. (1836)

"The citizens of this State shall have the right to keep and bear arms for their common defense. Art. II, § 5 (1868, art. I, § 5).​

Florida:
"That the free white men of this State shall have a right to keep and to bear arms for their common defence." Art. I, § 21. (1838)

"The people shall have the right to bear arms in defence of themselves and of the lawful authority of the State." Art. I, § 22. (1868)​

Tennessee:
"That the free white men of this State have a right to keep and to bear arms for their common defence." Art. I, § 26. (1834)

"That the citizens of this State have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime." Art. I, § 26 (1870)​

I do not see how it is possible to argue that the states did not understand that the 14th made the entire federal Constitution (including the BoR and 2ndA specifically) binding upon them.

Tom Servo wrote:

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.
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I find Presser intriguing for a couple of reasons.

I find very interesting Justice Wood's altering of the Cruikshank holding from quoting the indictment, "bearing arms for lawful purpose" to "the right of the people to keep and bear arms."

"It was so held by this court in the case of U. S. v. Cruikshank, 92 U.S. 542 , 553, in which the chief justice, in delivering the judgment of the court, said that the right of the people to keep and bear arms 'is not a right granted by the constitution. Neither is it in any manner dependent upon that instrument for its existence. . . . "​

That precise quote from the 2nd Amendment absolutely solidifies that the specific right protected by the 2nd does not flow from the 2nd, a premise that could only be surmised from Cruikshank's use of the indictment's characterization.

After re-affirming that the 2nd Amendment protected right to arms is not granted by the Amendment or dependent upon it in in any manner, the Court arrives at the unavoidable dilemma that the 2nd Amendment does not apply to the states (cites to Barron, Fox, Twitchell, Cruikshank, etc).

Here's where it gets interesting for me. Presser then seeks to discover if there is any federally protection for the right to arms held by the citizens of the states existing without reference to the 2nd Amendment. That is a very interesting tack to take IMO.

The Court first finds that the general militia concept is a fundamental component of this nation as well as the states:

"It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, . . . "​

What does that fundamental tenet demand?

". . . and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, . . . "​

There is then a federal protection interest in the state citizen's right to arms and that protection exists on two planes.

It exists in the "general powers" (those laid out specifically in the Constitution) and in the "prerogative of the general government." I believe that word, prerogative, is describing an inferred power that exists as fundamental principle of our Constitutional Republic.

Again, because the Constitution promises to the states to forever provide a republican form of government (Article IV, § 4, "general power") a power is thus granted by inference to keep that promise (prerogative); to secure the continuance of our all of the founding principles.

The Court then addresses specifically the mechanism behind this federal power that binds state action. The states can not prohibit the people from keeping and bearing arms because that action would:

". . . deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government."​

This is most definitely not an affirmation of "state's rights." This explains a mingled dependence; the states are barred from disarming their citizens because those armed citizens are also the resource upon which the security of the federal government depends.

The principle works both ways; the federal government can not act to disarm state citizens because the states rely on those people for their security.

Which is a reason the 2nd Amendment exists of course. :D

Thanks again for the welcome!

.
 
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Hmmm, I really expected the NRA to concentrate on the due process argument, and they did; but they still gave 11 pages of a 47 page brief to P&I arguments.

I'm a little surprised in that I thought the P&I arguments would be more the sideshow than the main thrust. I guess that is a good thing so far as it signals how strong the due process argument is that they can dedicate that much ink to P&I.
 
I do not see how it is possible to argue that the states did not understand that the 14th made the entire federal Constitution (including the BoR and 2ndA specifically) binding upon them.
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I don't follow this ... the States had to end discriminatory gun laws ... how did we jump from there to the conclusion that the Second Amendment was binding upon the States?



I fail to see how a state saying that jurors, voters, etc. must be residents would fall afoul of the 14th Amendment.
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I agree. But I think it would "fall afoul" of Article IV, Section 2 to construe the P&I to be so broad as to include such things. Doesn't Article IV, Section 2 mean that Virginia cannot discriminate against citizens from other States within the area of "privileges and immunities"? And since clearly Virginia can discriminate against citizens from other States when it comes to the right to vote, be on a jury, etc. doesn't that demonstrate that these rights cannot be part of the P&I?
 
Hugh Damright wrote:

I don't follow this ... the States had to end discriminatory gun laws ... how did we jump from there to the conclusion that the Second Amendment was binding upon the States?
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Are you saying that those state constitution RKBA provisions were just simple gun control laws, mere acts of the legislature?
 
And since clearly Virginia can discriminate against citizens from other States when it comes to the right to vote, be on a jury, etc. doesn't that demonstrate that these rights cannot be part of the P&I?
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No, it doesn't; but even if it did, it doesn't help your case that the 14th Amendment is not meant to incorporate the fundamental civil rights like those enumerated in the Bill of Rights (since none of the points you are discussing are covered by the first 8 amendments).
 
Thanks Al for the link.

Read it and the petitioner's brief.

Both are a great read and I'll just have to wait for the decision from the SCOTUS.

The question has been discussed in this thread very well and I can't add anything to it. I absolutely think we will win this case hands down FWIW.

I also believe the Slaughterhouse decision will be dismantled for the "lunacy" it represents.

Man, I can't wait to read the SCOTUS decision. It will be another Heller IMHO. :)
 
In my searches for legal arguments on the original Privileges and Immunities clause (Art IV sec 2), I stumbled upon a very good article that had been published as a "Note" at 83 Tex L Rev. 1483, Corfield v. Coryell and the Privileges and Immunities of American Citizenship, by David Upham.

The gentleman is an attorney and Assistant Professor of Politics, University of Dallas. In a brief email exchange, David sent me the complete paper. I thank him for that.

His "note" is 52 pages and in his own words: "largely an adaptation of chapters 2–7 from my unpublished dissertation: Exploring “That Unexplored Clause of the Constitution”: The Meaning of the “Privileges and Immunities of Citizens” Before the Fourteenth Amendment (2002) (Unpublished Ph.D. dissertation, University of Dallas)."

I believe it explains a lot on original understanding and how the P&I clause was first viewed, before the Slaughter-House Cases" was decided. It certainly adds to the debate over what the Congress meant when passing the 14th amendment. I also believe this to be a "sleeper." That is, it deserves a much wider distribution and appreciation in the legal community.

For those interested, you can read it here. For those of you that take the time to download and read this paper, I think you will agree that it highlights how the original meaning was lost.
 
The people at Volokh Conspiracy had been hotly debating Alan Gura's brief. (The relevant threads are here and here.) Prof. Orin Kerr rightly said of Gura's brief: "It’s not just arguing for a win: It’s arguing for a revolution." The fact that Gura went all out in favor of the PoI Clause makes it very clear that this is a libertarian campaign.

That said, I'm not sure that it is as hopeless as Prof. Kerr thinks it is:

a) The PoI argument is only radical from a purely doctrinal perspective. The reality is that most of the Bill of Rights have already been incorporated and the Court has already recognized many other rights as fundamental, some of them were clearly not thought of as such during the late 18th-late 19th centuries. Therefore, practically, I'm not sure that swapping substantive due process for PoI will have significant real world impact. From a purely doctrinal perspective, swapping the weakly supported substantive due process argument for the much more strongly supported PoI argument is a plus. I can't help but notice that for all of Prof. Kerr's alarm about the radicalism of this doctrinal shift, he did not write a single sentence contradicting all the evidence Gura summoned in his brief.

b) I think the professor also overstates the extent to which conservatives respect stare decisis. Just last term, the center-right justices struck down the precedent Michigan v. Jackson in Montejo v. Louisiana. The Court also eviscerated New York v. Belton in Arizona v. Gant and Conley v. Gibson in Ashcroft v. Iqbal. That's just from last term. If I go back term by term, I can find many more such examples. Let me also note that only 2 members of the Court were in the majority in all 3 cases: Scalia and Thomas.

(Memo to Alan Gura: You might want to remind the Court of its recent handiwork.)

This is not to say that conservatives don't respect stare decisis. It is to say, as Gura's brief (quoting the late Justice Thurgood Marshall) pointed out, stare decisis is not an inexorable demand. While it is true that these precedents are not as old as the Slaughterhouse cases, they don't exactly fit in with the professor's thesis. Let me also note that in 2007, the Court struck down Dr. Miles Medical Co. v. John D. Park & Sons in Leegin v. PSKS. That case was nearly as old as the Slaughterhouse cases. In terms of real world impact, overturning these precedents probably has more real world impact than the doctrinal shift Gura is advocating. The professor understates the extent to which Justice Scalia is willing to throw the legal system into chaos because of his fidelity to the Constitution. Anyone familiar with Justice Scalia's jurisprudence on the 6th Amendment will know the degree to which he turned the entire criminal justice field upside down over the past 10 years.

c) In my last post, I already suggested a way for the Court to limit any potential abuse of the PoI Clause. The Court can declare that the PoI only incorporates those rights that were widely recognized as fundamental in the late 19th century.

I'm not suggesting that it is likely for the PoI argument to be affirmed by the Court. I am only suggesting that it may not be as hopeless as the professor thinks it is.
 
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I think the "revolutionary" aspect of overturning Slaughterhouse will be less in how that overturns existing precedent (which has all been done through due process mostly) but more in terms of how it may be applied in the future against the states. Looking at the discussion of what the P&I clause covers, you've got endless opportunities for new litigation on 14th grounds.

You are talking a whole new ballgame on a wide range of subjects; but yes, I don't think there is much question that Gura is deliberately aiming to take out Slaughterhouse rather than simply making the argument because it might help his case.
 
This is an interesting read

from the highroad.us


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The comments at the link are also interesting reading.

Kopel on the Petitioner's and NRA Briefs (link) http://volokh.com/2009/11/17/nra-brief-in-mcdonald-v-chicago/comment-page-1/

November 17, 2009 7:59 pm

Last night, Orin noted the filing of the Petitioner’s brief in McDonald v. Chicago, the case that will decide whether the 14th Amendment makes the 2d Amendment applicable to state and local governments. As Orin noted, that brief is almost entirely devoted to incorporation under the Privileges or Immunities clause. It directly asks the Court to over-rule Slaughterhouse, Cruikhank, and Presser.

In my view, it’s a superb brief. It’s worthy of study by law students and anyone else who wants a great example of legal writing that is passionate and forceful, yet also sober and serious.

In the brief’s short discussion of Due Process, attorney Alan Gura aptly writes: “A ‘law’ depriving one of life, liberty or property ‘must not have exceeded the limits of legislative power marked by natural and customary rights.’” (quoting Frederick Gedicks, An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment, 58 Emory L.J. 585, 644–45 (2009).) This is an important point; “substantive due process” may be ill-named, but it is founded on legitimate, originalist doctrine.

Many folks have been wondering why the Gura brief concentrates so heavily on the bolder theory (Privileges or Immunities) rather than the one that courts have used over the last century (Due Process). Here’s the answer: After Heller, the Second Amendment Foundation (SAF) and the National Rifle Association each filed separate lawsuits against the Chicago handgun ban. The cases were consolidated in the Seventh Circuit; after the panel ruled, SAF and NRA each filed separate petitions for certiorari. The Supreme Court granted cert. in the SAF case, McDonald v. Chicago. A few weeks later, the Court added NRA to the case as a party. So NRA is now a “Respondent in Support of Petitioners.” The suburb of Oak Park, which had been sued by NRA but not by SAF, was also added as a party.

So as a party, NRA filed its brief yesterday. The lead attorneys on the brief are Stephen Poss (attorney of record), Stephen Halbrook, and others. The NRA brief takes the more conservative approach. It mainly argues for incorporation via Due Process, with only a brief discussion of Privileges or Immunities. NRA does not ask for any cases to be over-ruled, since Slaughterhouse, Cruikshank, and Presser are all P or I cases, and predate the Court’s recognition of selective Due Process incorporation.

Because the Question Presented by the Court asked about both P or I and Due Process incorporation, it was appropriate that one party brief focused on the former, and the other party brief on the latter.

Amicus briefs (including one I am writing) in support of Petitioners are due Monday, Nov. 23. The Chicago and Oak Park briefs are due Dec. 30, since the Court granted them a two-week extension. Amicus briefs in support of the Chicago and Oak Park handgun bans are due one week after that.

When the amicus briefs start appearing a few days, I will blog about the most important or interesting ones.
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Are you saying that those state constitution RKBA provisions were just simple gun control laws, mere acts of the legislature?
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In my mind, what fired up the 39th Congress was gun laws, IIRC in Alabama and Mississippi, which said that negroes could not have guns. The Freedmens Bureau Bill and the 1866 Civil Rights Act addressed discriminatory gun laws by requiring equal benefit and protection of laws regarding the protection of person and property, and this equal protection clause carried over to the 14th. I can see how the States had to abide by the 14th's equal protection clause by ending discrimination in regards to the RKBA, but the fantastic leap to the conclusion that the Second Amendment binds the States is too much for me.

I don't know why we want to focus on reconstruction acts and States having to take the word "white" out of their Constitutions, but regardless, how do we jump from there to the conclusion that the Second Amendment binds the States? I seem to be missing the connection there, was the assertion that the States had to take the word "white" out of their Constitutions and that therefore the USBOR and especially the Second Amendment binds the States?


since clearly Virginia can discriminate against citizens from other States when it comes to the right to vote, be on a jury, etc doesn't that demonstrate that these rights cannot be part of the P&I?
No, it doesn't
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I'm not sure that I understand ... I think you are saying that Virginia can discriminate against citizens of other States when it comes to the P&I, despite Article IV, Section 2 ... but that doesn't seem rational to me.
 
I'm not sure that I understand
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I am saying Hugh, that because Virginia can discriminate against citizens from other States when it comes to the right to vote, be on a jury, etc , it does not mean that these rights are not a part of the P&I.

If I were less busy, it would be intellectually fun to discuss the point further; but as it is I have to make money at my day job as well as satisfy my intellectual curiousity on the P&I clause. I can either spend that time discussing it with you here or I can spend that time reading the McDonald briefs. I hope you won't take offense that I have decided the McDonald briefs are probably going to better teach me about the P&I clause. I know those briefs certainly will teach someone more than my posts here have :D
 
freonr22, what Bubbles posted was nothing more than the post by David Kopel over at the Volokh Conspiracy.

If Bubbles had done this here, it would have been deleted as a drive-by post. That said, it makes your post also a drive-by post. I'm gonna leave it up, on this one occasion, only because it reinforces exactly what a drive-by is: That is, a post that contains a link or copy & pasted material with no real comments by the person placing the post.

Please everyone, remember this in the future: If you post a link or any cut-n-pasted material, you must give some opinion or discussion about the link or material.
 
That said, it makes your post also a drive-by post.
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So, it's a drive-by of a drive-by. :)

The debate on the Volokh site is worth delving into, though. Orin Kerr doesn't believe we'll get a majority on PorI, but I find his betting criteria to be a bit glib. Regarding Roberts and Alito, he remarks that he "[doesn’t] think they’re revolutionaries, and the brief calls for a revolution."

The main problem with his arguments is that the Court had an easy out. If they wanted to stick with a narrow path to incorporation, they could have taken the NRA case, which argues for selective incorporation.

The fact that they took McDonald means they're interesting in revisiting the PorI clause, which means taking a hard look at Slaughterhouse. Gura's brief does an wonderful job of proving the deficiencies of the case.

One concern I'm seeing across the board is, "just how broad would such a ruling be, and where will the Court place boundaries?"

David Bernstein points out:

So, by deciding McDonald on P or I grounds, the conservatives can (1) help ensure the survival of the individual right to bear arms, and ground it in a much less controversial historical context, while leaving more room for federal than for state regulation of firearms; (2) start the process of transferring liberty jurisprudence from the D.P. Clause to the P or I Clause, which should help undermine Roe v. Wade and other rights with no historical basis as of 1868; and (3) allow some room for the Court to engage in serious review of a very narrow category of abusive economic regulations, along the lines of the cases brought by the Institute for Justice (requiring hairbraiders to take a two-year cosmetology course, creating a government-imposed cartel in funeral caskets, etc.)
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Antipitas, I see your point and apologize, I am/was trying to check out the developments of this case on Calguns, thr.org/and us and here and share the info across the sites for the users. I will structure it better in the future, the only point was to share the info, and I see your point.
 
No prob, freon. We are intentionally more strict than many (most?) other sites. The phrase, "take the high road" which became the name of our sister-site, was coined here, first. We continuously raise the bar here. One of the general goals is: More Signal, Less Noise.

Oh, I have been reading the various threads over at the Conspiracy. Kind of instructive to note the various takes. Also instructive that they have a dopple-ganger in J. Aldridge.
 
The dirty little secret about the constitution is that with rare exceptions such as constitutional amendments, it is whatever a majority on the Supreme Court say it is. That's why even if PoI is revived, the ballgame is the same: Win 5 votes. It's just that the arguments are different. Even without PoI, liberal justices have been using substantive due process to invent new rights. I really don't see how things can be any worse. On the other hand, reviving PoI helps discredit substantive due process. Furthermore, if conservatives get to define it, that will restrict any potential abuse by lower courts.

In the mean time, the exciting debate continues. Prof. David Bernstein recommends a way to control PoI which is remarkably similar to my own suggestion. At the other end of the libertarian scale, Prof. Randy Barnett (the man who argued Gonzalez v. Raich) went all out in defense of PoI.

I also finished the Rutherford Institute brief and I took away 3 points:

i. One of the points is the same as something I mentioned earlier: It will be very odd if the Court allows the incorporation of other rights but not the right to keep and bear arms.

ii. The brief cited Chicago crime statistics to repudiate the idea that the city's gun control has anything to do with lowering crime.

iii. In order to prevent the Court from assuming that the institute is full of gun nuts who are against any and all regulations, they offered up storage regulations and background checks as what they regard as reasonable. This concession is wise. If the Court concludes that a party before it is a bunch of lunatics, then the case is over.
 
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