Posted on 03/02/2010 6:03:50 PM PST by neverdem
In 1861, America began a war to end slavery. Shortly thereafter, we began another battle — Reconstruction — to end the incidents of slavery, culminating in the ratification of the Thirteen, Fourteenth, and Fifteenth Amendments. But from today’s arguments in McDonald v. City of Chicago, you would never know any of that had ever occurred, let alone that the Fourteenth Amendment — including specifically its Privileges or Immunities Clause — was enacted for the specific purpose of putting an end to a Southern tyranny that included the systematic disarmament of newly free blacks and their white supporters in order to keep them in a state of servile terror.
McDonald involves a challenge to Chicago’s decades-old handgun ban, which has shown itself to be no more effective at limiting violent crime than the one struck down by the Supreme Court two years ago in District of Columbia v. Heller. But it appears that any similarity between the two cases may end there.
Heller, in which I was co-counsel to the plaintiffs, was a milestone case because it represented the Supreme Court’s first serious look at the question of gun rights, specifically whether the Second Amendment protects an individual’s right to keep handguns at home for lawful self-defense. The Court correctly said yes to that question, rejecting the nonsensical idea that the Second Amendment only protects some sort of “collective” right on the part of states to arm their own militias. Notably, both Justice Scalia’s majority opinion and the principal dissent authored by Justice Stevens were couched in overtly originalist terms. In other words, although the justices split 5–4 on the outcome of the case, all nine seemed to agree that their interpretation of the Second Amendment should be guided by an appreciation of the relevant historical context. And while the two sides disagreed significantly about key aspects of that history (including the prevalence of gun regulation during the Founding era), they certainly paid meticulous attention to it.
And that is where this morning’s arguments in McDonald present such a jarring contrast to the justices’ reasoning in Heller.
McDonald presents two questions, one easy and one a bit more difficult. The easy question is whether the right to keep and bear arms applies not just to the federal government, which was the issue in Heller, but to state and local governments as well. The answer is yes, undoubtedly. The harder question is how.
Unlike the federal government, states are not directly bound by the Bill of Rights. Instead, state and local governments are bound by the Fourteenth Amendment, which requires them to ensure that all people receive both due process and equal protection of the laws and forbids them from abridging “the privileges or immunities of citizens of the United States.” Over the years, the Supreme Court has “incorporated” nearly all of the two-dozen or so discrete provisions in the Bill of Rights against the states, but it has done so through a controversial doctrine called “substantive due process.” Lawyers for the would-be gun owners in McDonald argued, correctly, that a more originalist approach would be to take a fresh look at the text, history, and original public meaning of the Fourteenth Amendment and conclude, as have virtually all modern scholars and practitioners familiar with the issue, that the right to keep and bear arms is protected first and foremost by the Privileges or Immunities Clause — not the modern doctrine of substantive due process.
Powerful support for that approach comes not just from the congressional debates over the adoption of the Fourteenth Amendment and the extensive coverage those debates received in leading periodicals, but also from the abundant historical evidence about what prompted Congress to propose the Fourteenth Amendment in the first place. Simply put, it was the tyranny of Southern states and their brazen attempt to keep blacks in a state of constructive servitude while terrorizing anyone who presumed to stand in the way. The legislative record contains extensive reports of forced disarmaments and lynchings, often at the hands of militias and other officials acting under color of state law. Reconstruction Republicans were outraged by that conduct, as was the public. As a result, few (if any) rights were mentioned as regularly in connection with the Fourteenth Amendment as the right to keep and bear arms.
That history is stark, undisputed, and, if today’s arguments are any indication, seemingly irrelevant to the Court’s decision whether the Fourteenth Amendment protects the right to keep and bear arms. If so, that’s a tragedy. Correction: the continuation of a tragedy.
— Clark Neily is a senior attorney with the Institute for Justice and was one of three attorneys who litigated on behalf of gun owners in District of Columbia v. Heller.
OK SOOOOOOO,
Gun control is RACIST?
Sorry couldn’t resist.
Thanks for a very informative posting.
Gun control has always been racist. That’s why Democrats are for it.
OH YES!
To me, legal arguments always seem to lack common sense.
I know how to resolve this ambiguity regarding the 14th Amendment. Let’s get rid of it, along with the 15th, 16th and 17th Amendments. This would put us well on the road to recovery as a nation.
Gun control has always been a Jim Crow law, and as in its origin implemented and enforced by Democrats.
makes sense if I’m understanding this correctly...equal protection under the law should not differ between jurisdictions. in essence city of chicago citzenry is being treated different than the rest of the state.
McDonald presents two questions, one easy and one a bit more difficult. The easy question is whether the right to keep and bear arms applies not just to the federal government, which was the issue in Heller, but to state and local governments as well. The answer is yes, undoubtedly. The harder question is how.
Because I believe that the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of our Fourteenth Amendment jurisprudence, I would be open to reevaluating its meaning in an appropriate case.
J. Thomas, dissenting, Saenz v Roe 1999
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Repeating my prediction from Feb. 23--
In a 5-4 decision, SCOTUS will incorporate the Second Amendment via the Due Process Clause. Clarence Thomas will write a brilliant concurring opinion in which he refers back to Saenz, and explains why the the original understanding of the Privileges or Immunities Clause protects the RKBA.
I think you're unduly pessimistic. Heller recognized an individual right to keep and bear arms. McDonald will probably get the Second Amendment incorporated, IMHO. All sorts of cases are pending about what is reasonable regulation versus "shall not be infringed." I think what happened to the poll tax is instructive.
I agree.
Clarence Thomas will write a brilliant concurring opinion in which he refers back to Saenz, and explains why the the original understanding of the Privileges or Immunities Clause protects the RKBA.
Alito and Kennedy might join Thomas.
I hope you are right but I’ve lived in this liberal Chicago politician dominated state for over 40 years and I don’t see it changing in my life time.
We are considering a move to Missouri or Kentucky but moving away from children and grand children is difficult.
Why is it when the Supreme Court upholds the Constitution, liberals start sputtering and saying that SCOTUS made a wrong decision???
Rhetorical Question. No response needed.
The danger, though, is that if the privileges and Immunity clause is used, liberals think they can expand rights like abortion and homosexual marriage.
I say let them try. What right allows you to kill someone else?
On homosexual marriage we need to stay away from polygyny and polygamy arguments and use biology and children to our benefit. These will fall to the culture wars our government schools are creating. The children of tomorrow already are exposed to so much sex that nothing is sacred.
Man/woman marriages lead to children and families and children need both parents to balance their growth. Furthermore you can discriminate by sex.
Actually, it might be the exact opposite. A foid will become the default ccw license and like homeschooling IL will be paralyzed and won’t be able to regulate it.
We might be nearly the freest in the nation on guns, just like homeschooling.
“Lawyers for the would-be gun owners in McDonald argued, correctly, that a more originalist approach would be to take a fresh look at the text, history, and original public meaning of the Fourteenth Amendment and conclude, as have virtually all modern scholars and practitioners familiar with the issue, that the right to keep and bear arms is protected first and foremost by the Privileges or Immunities Clause — not the modern doctrine of substantive due process.”
Not according to United States v. Cruikshank (1876) a U.S. supreme court grueling MUCH much closer to the actual passing of the 14th Amendment(ratified in 1868).
http://en.wikipedia.org/wiki/United_States_v._Cruikshank
The Lawyers should be ashamed of such an argument not only for its factually frivolous basis.
but for the fact that none other then Judge Sonia Maria Sotomayor presently mentioned this case.
Of course that presumes that the liberals are willing to face the fact that the case not only explicitly spelled out that the 2nd amendment did not apply to the States but the 1st did not apply to the States either.
I of course am Game for upholding that ruling, as it will help bring an end to the Federal Governments war on religion, and at last open the door to a far more strict and actually meaningful interpretation of the 2nd amendment.
One that does not disarm the States as the existing “reasonable exceptions” do as clearly demonstrated by this Tennessee guardsman case:
http://www.thenewamerican.com/index.php/usnews/constitution/2807-rich-hamblen-challenges-the-supreme-court-to-uphold-the-second-amendment
If you have a “right” to a gun, then why is this even before the Supreme Court?
Why is everyone holding their breaths waiting to hear what they say?
You do not have a right to a gun.
Guns ARE your rights!
If you have a gun, your rights depend only on your willingness to use it against the neighbor or tyrant who would take them.
If you are unwilling to do so, then your “rights” are whatever somebody else says they are.
I spit on a “Supreme Court”, legislature or town council and the people who put them in office who say anything on the matter.
“Unlike the federal government, states are not directly bound by the Bill of Rights.”
This does not make sense to me. The Feds can’t abridge free speech but states can, or states can do unreasonable search and seizure and are not subject to prohabition on cruel and unusual punishment? What would be the point of the bill of rights then?
The 14th Amendment simply clarified the following section in order for it to apply to freed slaves and to ensure that SCOTUS couldn’t find some way to say it doesn’t apply to them:
Article IV - The States
Section 2 - State citizens, Extradition
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
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