Free Republic
Browse · Search
News/Activism
Topics · Post Article

Skip to comments.

DC Circuit strikes down DC gun law
How Appealing Blog ^ | 03/08/2007 | Howard Bashman

Posted on 03/09/2007 8:10:02 AM PST by cryptical

Edited on 03/09/2007 10:38:14 AM PST by Admin Moderator. [history]

BREAKING NEWS -- Divided three-judge D.C. Circuit panel holds that the District of Columbia's gun control laws violate individuals' Second Amendment rights: You can access today's lengthy D.C. Circuit ruling at this link.

According to the majority opinion, "[T]he phrase 'the right of the people,' when read intratextually and in light of Supreme Court precedent, leads us to conclude that the right in question is individual." The majority opinion sums up its holding on this point as follows:

To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment's civic purpose, however, the activities it protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.

The majority opinion also rejects the argument that the Second Amendment does not apply to the District of Columbia because it is not a State. And the majority opinion concludes, "Section 7-2507.02, like the bar on carrying a pistol within the home, amounts to a complete prohibition on the lawful use of handguns for self-defense. As such, we hold it unconstitutional."

Senior Circuit Judge Laurence H. Silberman wrote the majority opinion, in which Circuit Judge Thomas B. Griffith joined. Circuit Judge Karen LeCraft Henderson dissented.

Judge Henderson's dissenting opinion makes clear that she would conclude that the Second Amendment does not bestow an individual right based on what she considers to be binding U.S. Supreme Court precedent requiring that result. But her other main point is that the majority's assertion to the contrary constitutes nothing more than dicta because the Second Amendment's protections, whatever they entail, do not extend to the District of Columbia, because it is not a State.

This is a fascinating and groundbreaking ruling that would appear to be a likely candidate for U.S. Supreme Court review if not overturned first by the en banc D.C. Circuit.

Update: "InstaPundit" notes the ruling in this post linking to additional background on the Second Amendment. And at "The Volokh Conspiracy," Eugene Volokh has posts titled "Timetable on Supreme Court Review of the Second Amendment Case, and the Presidential Election" and "D.C. Circuit Accepts Individual Rights View of the Second Amendment," while Orin Kerr has a post titled "DC Circuit Strikes Down DC Gun Law Under the 2nd Amendment."

My coverage of the D.C. Circuit's oral argument appeared here on the afternoon of December 7, 2006. Posted at 10:08 AM by Howard Bashman


TOPICS: Breaking News; Constitution/Conservatism; Culture/Society; US: District of Columbia
KEYWORDS: 2ndamendment; banglist; devilhasiceskates; districtofcolumbia; firsttimeruling; flyingpigs; frogshavewings; giuliani; gunlaws; hellfreezesover; individualright; rkba; secondamendment; selfdefense
Navigation: use the links below to view more comments.
first previous 1-50 ... 1,001-1,0501,051-1,1001,101-1,150 ... 1,201-1,238 next last
To: ctdonath2
He flat-out refused to answer my earlier question. I saw no need to answer his.

Mind your own business -- God, you're nosy!

1,051 posted on 03/11/2007 1:45:55 PM PDT by robertpaulsen
[ Post Reply | Private Reply | To 1048 | View Replies]

To: robertpaulsen

They're functionally equivalent to what Miller was in trouble for having, and which SCOTUS ostensibly couldn't see an obvious military use for.

I'd go so far as to say: in observing that the defense didn't show up to court, and recognizing the serious relevance of the case, SCOTUS was looking for a way to make the case go away without making a binding ruling - as to do so would be unfair to both sides. Better to a relevant yet easily-answered question which sends the case back thru the system, allowing Miller to pursue his case (if he ever showed up (difficult, being dead)). It's not unusual for courts to seek any way to weasel out of making a ruling (even in Parker, only one plaintiff was granted a full ruling).


1,052 posted on 03/11/2007 1:47:52 PM PDT by ctdonath2 (The color blue tastes like the square root of 0?)
[ Post Reply | Private Reply | To 904 | View Replies]

To: robertpaulsen
Here I am trying to get past the first page of the verdict

You've posted an awful lot about this verdict for not having gotten past the first page of the verdict.

1,053 posted on 03/11/2007 1:54:56 PM PDT by ctdonath2 (The color blue tastes like the square root of 0?)
[ Post Reply | Private Reply | To 1050 | View Replies]

To: robertpaulsen

Mind my own business? I have just as much interest in this thread as you do. He asked a relevant question, and others are interested in your answer - which wasn't.


1,054 posted on 03/11/2007 1:56:49 PM PDT by ctdonath2 (The color blue tastes like the square root of 0?)
[ Post Reply | Private Reply | To 1051 | View Replies]

To: ctdonath2
"They're functionally equivalent to what Miller was in trouble for having"

No. They have been declared suitable for military use. So has the M79 and the M249 SAW. That's what's relevant.

For you to say shotgun "A" is allowed therefore shotgun "B" should be allowed is ludicrous. If the U.S. Army thought there was merit to a 17" shotgun they would have told Colt to build one. They didn't. They told Colt to build it 20".

(but ... but ... what about 19.8" robertpaulsen?)

1,055 posted on 03/11/2007 1:57:35 PM PDT by robertpaulsen
[ Post Reply | Private Reply | To 1052 | View Replies]

To: ctdonath2
"You've posted an awful lot about this verdict for not having gotten past the first page of the verdict."

Gosh. Maybe I did read it after all.

Couldn't have. You said I didn't.

1,056 posted on 03/11/2007 1:59:49 PM PDT by robertpaulsen
[ Post Reply | Private Reply | To 1053 | View Replies]

To: ctdonath2
"and others are interested in your answer - which wasn't."

Then I suggest the "others" get on HIS case (not mine) to answer the question posed to him.

1,057 posted on 03/11/2007 2:01:54 PM PDT by robertpaulsen
[ Post Reply | Private Reply | To 1054 | View Replies]

To: Texas Federalist
There are two clauses in the text of the Second Amendment. The prefatory clause, and the operative clause. The prefatory clause is merely a "for instance" type of thing. The operative clause is the actual "meat" of the text. The Right of the people to keep and bear arms shall not be infringed. Full stop.

It's a right of the people and it shall not be infringed. By anyone.

The only way to "remove" someones access to their Rights is via incarceration for crimes that person may have committed. Simply making possession or carrying of arms a criminal offense via legislation "offends" the Seconds Constitutional protection.

Federal law. State law. Local ordnance. Home owners association. School board. Not a single one has "authority" to infringe an individuals RKBA.

Past due time to remind them all of this...

1,058 posted on 03/11/2007 2:12:14 PM PDT by Dead Corpse (What would a free man do?)
[ Post Reply | Private Reply | To 1040 | View Replies]

To: ctdonath2
it is legal to own

Depends. Some DD's are listed under the NFA of '34 and as such had to be registered pre-84. Unless you are a government agency, newer Class III toys and some DD's are strictly off limits. The Master Key and the AA-12 are both NFA DD's.

1,059 posted on 03/11/2007 2:14:21 PM PDT by Dead Corpse (What would a free man do?)
[ Post Reply | Private Reply | To 1046 | View Replies]

To: sig226
Your statement falls back on Barron v. Baltimore, which in 1833 decided that the bill of rights applies only to the federal government.

Well, any part of the Bill of Rights that speaks of "Congress shall make no law" clearly is not refering to the States. After all, some States had various established religions in place for many years after 1789. Fortunately for this argument, the 2nd Amendment is not phrased that way.

More convincingly, the 10th Amendment would seem to make clear that regulating the ownership of arms, being protected by the 2nd Amendment, is therefore both (1) not a power delegated to the United States, and (2) is a power prohibited by the 2nd Amendment to the States.

1,060 posted on 03/11/2007 2:15:54 PM PDT by Andrew Byler
[ Post Reply | Private Reply | To 900 | View Replies]

To: Andrew Byler
sig226:
"-- Your statement falls back on Barron v. Baltimore, which in 1833 decided that the bill of rights applies only to the federal government. --"

Well, any part of the Bill of Rights that speaks of "Congress shall make no law" clearly is not referring to the States. After all, some States had various established religions in place for many years after 1789.


The "Congress" reference is easily explained by the framers not wanting to step on the grandfathered power that States had over their "established religions in place for many years after 1789."

The 1st goes on to enumerate speech, press, assembly, and petition as rights of the people.. -- Rights which neither Congress nor any other official, fed/state/local, could ignore as per the supremacy clause of Article VI.

Fortunately for this argument, the 2nd Amendment is not phrased that way.
More convincingly, the 10th Amendment would seem to make clear that regulating the ownership of arms, being protected by the 2nd Amendment, is therefore both (1) not a power delegated to the United States, and (2) is a power prohibited by the 2nd Amendment to the States.

Well put Andy. -- All of the BOR's outline powers prohibited to the states, thus reserved to the people.

1,061 posted on 03/11/2007 3:03:46 PM PDT by tpaine (" My most important function on the Supreme Court is to tell the majority to take a walk." -Scalia)
[ Post Reply | Private Reply | To 1060 | View Replies]

To: Andrew Byler

How do you explain the fact that the BOR was not enforced on the states until the early 1900's?


1,062 posted on 03/11/2007 3:25:36 PM PDT by robertpaulsen
[ Post Reply | Private Reply | To 1060 | View Replies]

To: tpaine
Kind of hard to believe that the founders were permitting states to do away with something that the BOR said was "necessary" - i.e. a popular militia (as opposed to a "select" militia like the NG). Of course we do know how the founders felt about select militias - basically they were the same as the standing army and to be feared.

As one of the signers of the Declaration of Independence said "The mind that aims at a select militia, must be influenced by a truly anti-republican principle; and when we see many men disposed to practice upon it, whenever they can prevail, no wonder true republicans are for carefully guarding against it. Richard Henry Lee, The Pennsylvania Gazette, Feb. 20, 1788.

Other founders weighed in on who was a member of the militia - "Who are the militia, if they be not the people of this country...? I ask, who are the militia? They consist of now of the whole people, except a few public officers." - George Mason

And ... "Whenever Government means to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise a standing army upon its ruins." -- Eldridge Gerry, August 17, 1789, signer of the Declaration of Independence and the Articles of Confederation, 5th Vice President of the US under Madison. He was one of the three men who refused to sign the Constitution because it did not have a Bill of Rights.
1,063 posted on 03/11/2007 3:29:23 PM PDT by RKV ( He who has the guns, makes the rules.)
[ Post Reply | Private Reply | To 1061 | View Replies]

To: tpaine
The fact that they ignored the very clear wording of Article VI does not change its wording.

'They' in that sentence was a reference to the courts and states that ignored Article VI for decades after the constitution was adopted. I did not mean the signatories to the constitution. I think the meaning of Article VI is crystal clear, but history shows that it was ignored.

1,064 posted on 03/11/2007 4:14:14 PM PDT by sig226 (see my profile for the democrat culture of corruption)
[ Post Reply | Private Reply | To 1022 | View Replies]

To: RKV; y'all
"-- Kind of hard to believe that the founders were permitting states to do away with something that the BOR said was "necessary" - i.e. a popular militia --"

Only gunngrabbers find it easy to believe such rationalizations. -- It was just an accepted fact, for over 150 years, [till 1933] that neither the state or feds had power to prohibit weapons.
-- Sure, some towns like NYC had local ordinances against concealed carry, -- but that type of law was only enforced against the 'criminal element', and ignored by most honest men.

Once the camels nose [NFA of '33'] was under the tent, -- both fed & state 'legislators' have never looked back. -- Much to th delight of some, even here on FR.

1,065 posted on 03/11/2007 4:38:52 PM PDT by tpaine (" My most important function on the Supreme Court is to tell the majority to take a walk." -Scalia)
[ Post Reply | Private Reply | To 1063 | View Replies]

To: robertpaulsen
"What, states can create Post Offices and print money?"

In Article I, Section 8, it says that the congress shall have the power,
"To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;"
and
"To establish Post Offices and Post Roads;"

Further along, it says,
"No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money;"
and then it says,
"No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State. . ."

I suppose that a state could create its own post office as long as it delivered the mail only within that state, or that a state could create its own post office in the event of an enemy invasion. And I suppose that several states could obtain permission from congress to enter into a compact to deliver mail among the states in the compact. It would be helpful if the legislators in those states were immune to criticism in the form of torchlight marches and hanging people in effigy. I'm surprised that New York hasn't tried it, the unions could add another 100,000 members to bloat themselves at the public trough.

"This Constitution, and the Laws of the United States . . .
shall be the supreme Law of the Land;
and the Judges in every State shall be bound thereby,
any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
How could this be more clear?

1,066 posted on 03/11/2007 4:40:44 PM PDT by sig226 (see my profile for the democrat culture of corruption)
[ Post Reply | Private Reply | To 1033 | View Replies]

To: robertpaulsen

It's not showing yet - and I'm not the only one having expressed that opinion.


1,067 posted on 03/11/2007 4:51:01 PM PDT by ctdonath2 (The color blue tastes like the square root of 0?)
[ Post Reply | Private Reply | To 1056 | View Replies]

To: Dead Corpse

Being NFA doesn't completely eliminate ownership. I can go buy new DDs now, just have to file paperwork and pay $200.

I just bought a brand new, way-post-'84 NFA SBR. Hardly "strictly off limits". (Where'd you get the '84 date?)

The only thing "strictly off limits" is post-'86 machineguns. Anything else is legal with proper paperwork; if hard to get, either is a state restriction (all NFA banned in HI) or simply an inadequate market (I'd like to buy a new XM-177 howitzer, but don't see any sellers).


1,068 posted on 03/11/2007 4:55:01 PM PDT by ctdonath2 (The color blue tastes like the square root of 0?)
[ Post Reply | Private Reply | To 1059 | View Replies]

To: sig226
"How could this be more clear?"

If true, the courts ignored it for 150 years. They're still ignoring it on some amendments, making it 220 years now.

Now, you can either believe there was some massive conspiracy by the courts spanning 150 years or you can admit that your assumption about the "clear" meaning of the Supremacy Clause was wrong.

How much longer, how many more posts, are you willing to make yourself look foolish? It's up to you.

1,069 posted on 03/11/2007 5:06:40 PM PDT by robertpaulsen
[ Post Reply | Private Reply | To 1066 | View Replies]

To: robertpaulsen

I look a fool? You're the one who can't understand why the states can't print money. Your sophistry is annoying.


1,070 posted on 03/11/2007 5:41:02 PM PDT by sig226 (see my profile for the democrat culture of corruption)
[ Post Reply | Private Reply | To 1069 | View Replies]

To: robertpaulsen
And the second amendment debates over "the plain simpleness of the good ole fashioned English" have been going on for how long now?

Obviously, since the first gun grabber decided to spit on the 2nd.

1,071 posted on 03/11/2007 7:32:16 PM PDT by takenoprisoner
[ Post Reply | Private Reply | To 1037 | View Replies]

To: takenoprisoner
While the 2nd Amendment does not define or limit arms, it is inferred to mean whatever arms are available. And not only does the 2nd Amendment not define the sort of arms, it also does not restrict modifying of available arms.

This argument was made by the majority on the DC Circuit; specifically to squash the specious argument that the 2nd Amendment only protects flintlocks. They point out that the weapons mentioned in the 2nd Militia Act were state of the art weapons, not antiques. They presumed that the intent of the Congress was to keep the militia armed with the most modern weapons the People could afford. Since members of that Congress also drafted the 2nd Amendment, it is logical to assume that they would want this technological development to continue under the protection of the 2nd Amendment. (And IIRC, the DC Circuit did speculate on how the Supreme Court might have ruled had Miller been represented.)

1,072 posted on 03/11/2007 7:32:50 PM PDT by Redcloak (The 2nd Amendment isn't about sporting goods.)
[ Post Reply | Private Reply | To 947 | View Replies]

To: tpaine
All guns are frightening to the Brady Bunch.
1,073 posted on 03/11/2007 7:35:04 PM PDT by Redcloak (The 2nd Amendment isn't about sporting goods.)
[ Post Reply | Private Reply | To 1044 | View Replies]

To: ctdonath2
"They are just getting copies of it, and need at least a few minutes to figure out what happened."

And to spin it as well.
1,074 posted on 03/11/2007 7:47:03 PM PDT by FortWorthPatriot (Μολὼν Λαβέ)
[ Post Reply | Private Reply | To 172 | View Replies]

To: robertpaulsen
And the second amendment debates over "the plain simpleness of the good ole fashioned English" have been going on for how long now?

It isn't a debate when one side is intentionally dishonest, and is deliberately attempting to alter the meaning. "The right of the people" - not states, not militias - "to keep and bear arms" meaning, to retain possession of, and carry - "shall not be infringed" meaning, zero encroachments on the foregoing. Period.

1,075 posted on 03/11/2007 8:39:36 PM PDT by coloradan (Failing to protect the liberties of your enemies establishes precedents that will reach to yourself.)
[ Post Reply | Private Reply | To 1037 | View Replies]

To: Redcloak

The Framers even anticipated technological advancement, by spelling out the patent office.


1,076 posted on 03/11/2007 8:40:58 PM PDT by coloradan (Failing to protect the liberties of your enemies establishes precedents that will reach to yourself.)
[ Post Reply | Private Reply | To 1072 | View Replies]

To: zendari

There's not much distinction, as citizens have owned MOST of the weapons of war since the beginning. Armed ships were common, and that was what would be used when letters of Marque and Reprisal were issued by the Congress. Also, to this day, some folks own artillery (though the BATFags restrict it greatly) and beltfed weapons. Some collectors even own warplanes. Personally I want most of the above, including an LPH as a yacht. (an LPH is an amphibious assault ship, designed for carrying Marine infantry and helicopters.)


1,077 posted on 03/11/2007 11:41:59 PM PDT by dcwusmc (We need to make government so small that it can be drowned in a bathtub.)
[ Post Reply | Private Reply | To 415 | View Replies]

To: the OlLine Rebel

bump


1,078 posted on 03/12/2007 5:31:34 AM PDT by dangerdoc (dangerdoc (not actually dangerous any more))
[ Post Reply | Private Reply | To 201 | View Replies]

To: dangerdoc

Geezy weezy! It sure skyrocketed since Friday!


1,079 posted on 03/12/2007 6:14:25 AM PDT by the OlLine Rebel (Common sense is an uncommon virtue.)
[ Post Reply | Private Reply | To 1078 | View Replies]

To: ctdonath2
Mea culpa. 86. Slip of the fingers.

But yes, some DD's are off limits. Try and buy a frag grenade or HE rounds for a .50 BMG and see what I mean.

Some SBS (Short Barreled Shotguns) are DD's that you can put on a Form 4. Certain "street sweepers", or other short length shotguns, are NFA restricted and good luck getting the BATFE to sign off on your forms.

SBR's just need the right paperwork filled out, the right palms greased, and the receiver engraved.

For DD's and AOW's, it's pretty much up to the BATFE's arbitray BS whether or not they want to sign off on it.

Contrast this to my point that none of these arbitrary classifications should exist at all.

1,080 posted on 03/12/2007 6:29:54 AM PDT by Dead Corpse (What would a free man do?)
[ Post Reply | Private Reply | To 1068 | View Replies]

To: Redcloak

Going along with this idea, "well-regulated" not meaning "ruled" as liberals want to see it, but "equipped/armed".


1,081 posted on 03/12/2007 6:45:36 AM PDT by the OlLine Rebel (Common sense is an uncommon virtue.)
[ Post Reply | Private Reply | To 1072 | View Replies]

To: coloradan
It isn't a debate when one side is intentionally dishonest, and is deliberately attempting to alter the meaning.

Yep. On web forums, that's called "trolling". Which is about all there is to Bobby...

1,082 posted on 03/12/2007 6:52:50 AM PDT by Dead Corpse (What would a free man do?)
[ Post Reply | Private Reply | To 1075 | View Replies]

To: Dead Corpse

Nope, it's still all available ('cept post-'86 MGs). You can get the go-boom stuff, it's just that you have to pay the $200 tax on each round. Ok, so that turns in to a practical ban...which was the point of NFA in the first place (ex.: $200 tax on a $5 MG in 1935). Only reason we tolerate NFA now is that inflation over 70+ years has brought the value of $200 down to a tolerable tax on good quality stuff (and comparably, the taxed stuff has risen in quality to warrant such prices - suppressors shouldn't be $1000, but if you're going to pay $200 tax on one you might as well get something really quiet and indestructable). If the tax had been indexed to inflation, we'd have gotten a case to SCOTUS overturning NFA already.


1,083 posted on 03/12/2007 7:20:32 AM PDT by ctdonath2 (The color blue tastes like the square root of 0?)
[ Post Reply | Private Reply | To 1080 | View Replies]

To: ctdonath2
It isn't the tax that is onerous. It's the fact that there is such a small pool, relatively, of NFA weapons that a $400 rifle is going for $12000 before you start paying government fees.

Also, I need to make a correction to part of my earlier statement. Taking a look around, it turns out the Remington 870MKS is considered an AOW (All Other Weapons) and only requires a Form 4 and a $5 tax. However, it's expensive and Knights Armament won't sell 'em to just anyone. I've only found one person for far that says they were able to purchase one.

1,084 posted on 03/12/2007 7:33:22 AM PDT by Dead Corpse (What would a free man do?)
[ Post Reply | Private Reply | To 1083 | View Replies]

To: robertpaulsen

The debate has been going on so long as some insist on redefining plain terms, in an attempt to make the sentence say something other than what it plainly says.


1,085 posted on 03/12/2007 7:44:12 AM PDT by ctdonath2 (The color blue tastes like the square root of 0?)
[ Post Reply | Private Reply | To 1037 | View Replies]

To: Dead Corpse

You're blurring subcategories and laws.
AOWs require a $5 tax. New ones may be made.
Non-AOW, non-MG items require a $200 tax. New ones may be made.
MGs require a $200 tax. New ones may NOT be made for civvies.

NFA per se is decreasingly onerous. The tax, $5 or $200, is by inflation falling from practically prohibitive to merely obnoxious.

922(o) - often confused with NFA - bans post-'86 MGs altogether. It is ONLY full-auto things that have the limited supply, and thus are costly per high demand.

(FWIW: I have 3 NFA items.)


1,086 posted on 03/12/2007 7:58:34 AM PDT by ctdonath2 (The color blue tastes like the square root of 0?)
[ Post Reply | Private Reply | To 1084 | View Replies]

To: tpaine
The Brady type mind is infected with PC socialism.

True.

We have a surplus of nanny/police state supporters on this site as well. 

1,087 posted on 03/12/2007 8:54:03 AM PDT by zeugma (MS Vista has detected your mouse has moved, Cancel or Allow?)
[ Post Reply | Private Reply | To 1044 | View Replies]

To: El Gato

The text of 14A most certainly does not "incorporate" the BOR as applying against the states. Any such incorporation ("selective incorporation") was achieved via judicial activism and findings of "substantive due process" - yet another fiction.

My understanding of the original intent of 14A was to force states to treat citizens equally (blacks and whites for example) - even in a state's appication and enforcement of seemingly unfair state law (no person shall hold office unless he believes in God for example).


1,088 posted on 03/12/2007 8:55:27 AM PDT by KeyesPlease
[ Post Reply | Private Reply | To 860 | View Replies]

To: The KG9 Kid
Someone with intestinal fortitude and money needs to openly bring a 'prohibited' weapon into D.C. today with the attitude of 'Go ahead. Charge me'.

I wouldn't worry about that. Plenty of the peeps on the street are already pack'n.

1,089 posted on 03/12/2007 11:27:17 AM PDT by LifeOrGoods? (God is not a God of fear, but of power, love and a sane mind.)
[ Post Reply | Private Reply | To 5 | View Replies]

To: KeyesPlease
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States

Help me here...

I understand the BOR to be a limitation on federal government.

How would natural rights, enumerated in the constitution, be subject to violation by other government entities?

Wouldn't the "privileges or immunities" clause explicitly extend the protection of the constitution?

1,090 posted on 03/12/2007 12:10:15 PM PDT by NY.SS-Bar9 (DR #1692)
[ Post Reply | Private Reply | To 1088 | View Replies]

To: NY.SS-Bar9
"Wouldn't the "privileges or immunities" clause explicitly extend the protection of the constitution?"

That was the thinking at the time -- the "privileges or immunities" clause would encompass the rights of the people and the states would then be obligated to protect those rights under the 14th.

That was shot down by the U.S. Supreme Court the very first time it was tried in the Slaughterhouse Cases of 1873.

"How would natural rights, enumerated in the constitution, be subject to violation by other government entities?"

As you said, the BOR only applied to the federal government. The feds couldn't prohibit free speech, for example, but states could (if it wasn't protected by the state constitution).

This is called federalism. Or, I should say, it was called federalism.

1,091 posted on 03/12/2007 5:02:23 PM PDT by robertpaulsen
[ Post Reply | Private Reply | To 1090 | View Replies]

To: robertpaulsen
Q: Wouldn't the "privileges or immunities" clause explicitly extend the protection of the constitution?

rp: That was the thinking at the time -- the "privileges or immunities" clause would encompass the rights of the people and the states would then be obligated to protect those rights under the 14th.

Agreed. That was what the 14th was understood to mean at the time it was promulgated.

That was shot down by the U.S. Supreme Court the very first time it was tried in the Slaughterhouse Cases of 1873.

IOW, the Court ruled against the original understanding.

1,092 posted on 03/12/2007 6:21:19 PM PDT by Ken H
[ Post Reply | Private Reply | To 1091 | View Replies]

To: Ken H
"That was what the 14th was understood to mean at the time it was promulgated."

Understood by who? That wasn't the understanding of the majority of those who voted for it.

"IOW, the Court ruled against the original understanding."

Turns out they didn't.

1,093 posted on 03/12/2007 6:36:34 PM PDT by robertpaulsen
[ Post Reply | Private Reply | To 1092 | View Replies]

To: Ken H; y'all
Rights, Responsibilities, and Communitarianism
Address:http://www.friesian.com/rights.htm

Here's an interesting [anti-communitarian] take on privileges & immunities from the above site:

"-- as the 14th Amendment forbids the States from passing laws "which shall abridge the privileges or immunities of citizens of the United States."
The unamended Constitution itself says (Article IV, Section 2):  "The Citizens of each State shall be entitled to all Privileges and Immunities of citizens in the several States."
"Privilege" could to be interchangeable with "liberty" or "power." The great English jurist, William Blackstone (1723-1780), whose Commentaries on the Laws of England formed the basis of American understanding of English Common Law, defines the terms thus:

The rights themselves, thus defined by these several statutes, consist in a number of private immunities; which will appear to be indeed no other, than either that residuum of natural liberty, which is not required by the laws of society to be sacrificed to public convenience; or else those civil privileges, which society hath engaged to provide, in lieu of the natural liberties so given up by individuals.


Thus, "immunities" tends to cover natural rights that are retained pretty much in their original form.

The right to self defense would belong in that category. On the other hand, "privileges" are rights (as powers) that substitute in a civil form for certain other natural rights which are not retained in their original form.

An example of that would be a natural right to retribution through revenge, which is surrendered for a civil power, or privilege, to seek redress for wrongs and retribution through judical proceedings.
Punishments for wrongdoing are then applied by a presumably dispassionate authority, whose judgment will not be distorted by personal grievance.
A fairly clear boundary can then be drawn between just retribution and revenge, where in the state of nature that would be very difficult.

Today "privilege" is usually contrasted with any kind of "right," in the sense that rights are natural and inalienable while privileges are granted, contingent, and revocable, as most States say that a driver's license is a "privilege, not a right"; but we see James Fenimore Cooper, in his The American Democrat, using the expression "inalienable privilege," which shows that our contrast between "rights" and "privileges" is quite recent. --"
1,094 posted on 03/12/2007 6:51:02 PM PDT by tpaine (" My most important function on the Supreme Court is to tell the majority to take a walk." -Scalia)
[ Post Reply | Private Reply | To 1092 | View Replies]

To: robertpaulsen
Understood by who?

The ones who were doing that "thinking at the time".

1,095 posted on 03/12/2007 7:03:54 PM PDT by Ken H
[ Post Reply | Private Reply | To 1093 | View Replies]

To: zeugma
"-- We have a surplus of nanny/police state supporters on this site as well. --"


Otherwise know as Communitarians.  



Rights, Responsibilities, and Communitarianism
Address:http://www.friesian.com/rights.htm


"--- A whole movement exists, billing itself as "Communitarianism," that promotes an effort to restore the notion of responsibility and to establish a balance both between rights and responsibilities and between individuality and community.

The movement is spearheaded by sociology professors Robert Bellah, in Habits of the Heart, and Amitai Etzioni, in The Spirit of Community.
Their viewpoint is shared by many others, including historian Garry Wills; and it is reflected in the title of Hillary Clinton's book on the responsibilities of government in child rearing, It Takes a Village.

Communitarians, however, promote a certain view of rights and responsibilities that is quite different from that of John Locke, Thomas Jefferson, James Madison, etc.

It is more in the tradition of G.W.F. Hegel, where the community, or the state, is more real than the individual and the individual who does not fit in with the social norms or the law is objectively irrational.

Hegel has been regarded, justly, as the father of modern totalitarianism.
How different these attitudes are comes out in the Communitarian treatment of things like seat-belt and motorcycle helmet laws. Etzioni would deny to the automobile or motorcycle rider the right to decide for themselves whether to wear seat-belts or motorcycle helmets because, if they are injured, the public is liable to end up paying for their injuries. Thus the riders have a duty to protect themselves in such a way as to not impose a burden on the public through their injuries.

This is interesting reasoning, for the denial of the right of choice about seat-belts and motorcycle helmets is really predicated on the concession of another right: that the injured riders have the right to be treated at public expense. The claim of that right is then used to deny the other [3].

The question is not even asked: do those who don't want to use seat-belts or motorcycle helmets really want their liberty curtailed for the privilege of their injuries being treated at public expense?

The consequence, then, is not that Communitarians want to balance rights and responsibilities; it is that they want to deny certain rights in favor of certain other ones, without asking whether that is the particular choice other people really want to make. ---"
1,096 posted on 03/12/2007 7:20:12 PM PDT by tpaine (" My most important function on the Supreme Court is to tell the majority to take a walk." -Scalia)
[ Post Reply | Private Reply | To 1087 | View Replies]

To: tpaine
Justice Clarence Thomas on Privileges, Immunities, and the 14th Amendment:

[Justice Washington in Corfield, 1825] endorsed the colonial-era conception of the terms "privileges" and "immunities," concluding that Article IV encompassed only fundamental rights that belong to all citizens of the United States.4 Id., at 552.    

 Justice Washington's opinion in Corfield indisputably influenced the Members of Congress who enacted the Fourteenth Amendment. When Congress gathered to debate the Fourteenth Amendment, members frequently, if not as a matter of course, appealed to Corfield, arguing that the Amendment was necessary to guarantee the fundamental rights that Justice Washington identified in his opinion.

See Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L. J. 1385, 1418 (1992) (referring to a Member's "obligatory quotation from Corfield"). For just one example, in a speech introducing the Amendment to the Senate, Senator Howard explained the Privileges or Immunities Clause by quoting at length from Corfield.5 Cong. Globe, 39th Cong., 1st Sess., 2765 (1866).

Furthermore, it appears that no Member of Congress refuted the notion that Washington's analysis in Corfield undergirded the meaning of the Privileges or Immunities Clause.

J. Thomas, Saenz v Roe, dissenting.

_______________________________

Robert Bork: [The P&I] Clause is inscrutable and should be treated as if it had been obliterated by an ink blot. --The Tempting of America 166

1,097 posted on 03/12/2007 7:48:10 PM PDT by Ken H
[ Post Reply | Private Reply | To 1094 | View Replies]

To: Ken H
Well, there you have it; -- imho, Justice Thomas will go down in history as one of the finest; -- and Bork will go down as one of the biggest jokes.
1,098 posted on 03/12/2007 8:12:55 PM PDT by tpaine (" My most important function on the Supreme Court is to tell the majority to take a walk." -Scalia)
[ Post Reply | Private Reply | To 1097 | View Replies]

To: Ken H
"The ones who were doing that "thinking at the time".

Both of them?

I'm saying that those who thought the 14th applied the BOR to the states thought the P&I Clause would be the vehicle for doing so. Those who thought that way were a) in the distinct minority (a handful) and b) wrong.

The overwhelming majority of those who passed the 14th did not think it applied the BOR to the states in any way, shape, manner, or form. This was confirmed by legislation they attempted to pass subsequent to the 14th (legislation that would have been unnecessary if the BOR applied to the states), the U.S. Supreme Court ruling in the Slaughterhouse Cases a mere five years after ratification (which the Congress then did nothing about), and subsequent court rulings for the next 60 years.

It was only then that activist courts starting using the Due Process Clause of the 14th (NOT the P&I Clause) to selectively incorporate the BOR. Parts of the BOR are STILL not incorporated.

1,099 posted on 03/13/2007 5:59:02 AM PDT by robertpaulsen
[ Post Reply | Private Reply | To 1095 | View Replies]

To: Ken H
"concluding that Article IV encompassed only fundamental rights that belong to all citizens of the United States"

Why would he conclude that? Article IV says very clearly, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

It essentially says that a state cannot treat a citizen of another state differently than their own. Guess what? The slaves were not citizens of any state. They had no privileges and immunities. And after they were freed, the states treated them exactly that way.

The 14th was passed (as part of a trilogy of amendments) to give the slaves some basic privileges and immunities -- they were declared "citizens of the United States" and were entitled to those privileges and immunities that were part of the national government.

1,100 posted on 03/13/2007 6:10:56 AM PDT by robertpaulsen
[ Post Reply | Private Reply | To 1097 | View Replies]


Navigation: use the links below to view more comments.
first previous 1-50 ... 1,001-1,0501,051-1,1001,101-1,150 ... 1,201-1,238 next last

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
News/Activism
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson