Posted on 02/10/2010 5:21:00 AM PST by jim_trent
Today (this was back on November 16, 2009) the Petitioners in McDonald v. City of Chicago, the case on whether the Second Amendment applies to the states, filed their merits brief. You can read it here. It’s a truly remarkable brief. It devotes 55 pages to arguing that the Supreme Court should overturn The Slaughterhouse Cases (1873) and embark on a new era of a newly rejuvenated Privileges or Immunities Clause. It then gives a mere seven pages, at the very end of the brief, to applying existing doctrine and arguing that the Second Amendment is incorporated and applies to the states under the Due Process clause. It’s certainly an attention-getting way to brief the case. It’s not just arguing for a win: It’s arguing for a revolution.
(Excerpt) Read more at volokh.com ...
Art 1 Sec 8, Art 6 para 2, and the BoR. You do know how to read don't you?
IOW, restore true Federalism. We the People would get our Minimal Federal protections from the BoR. Under P&I, States can't infringe on those Rights, period. Like Gun control currently does in contravention of Art 6 para 2's injunction "laws of any State to the contrary notwithstanding". States could expand protection for other Rights not listed in the BoR, or they could set up their State Constitutions to be a list like the FedGov's Art 1 Sect 8. If it isn't listed, they can't do it. Full stop.
Conversely those 10th Amend powers left to the States, like banning gay marriage and banning abortion, would be stored where currently the FedGov's case law prevents them from doing so. You keep skipping over that point. Don't. Right now only Roe keeps States from being able to outlaw abortion. The courts overturn the attempts citing Roe.
You do know how a Republic with a Constitution is supposed to work don't you? Because you seem awfully clueless.
It's fine and dandy to quote something from the Constitution, but we've already established that under the current Due Process jurisprudence, that the Courts will ignore things they don't like and find things that are not in the text to support positions that they do like.
Do you think for an instant that the Supreme Court is going to read a right to possess a machine gun through the P&I clause, when they have restricted the 2nd Amendment under current jurisprudence?
You are just spouting of nonsensical "hope and change" nonsense, if you really believe that granting the Courts additional power is going to suddenly make them read the Constitution.
You've advanced nothing to address the problem of the Courts usurping State power. If they do it now, they will be even worse with an additional tool on their belt.
Roe would not disappear under the P&I clause. Instead, the Court will use the P&I Clause to strike down ALL laws regarding abortion.
The Court has already concluded that privileges and immunities are unenumerable. If that is the case, ANYTHING could be considered a P&I. You simply need to get a pervert Federal Judge to declare it such. Such would be the death of the Republic and rule by an unelected Federal Oligarchy.
It's obvious that you are doing nothing more than spouting off what you hope the Courts will do with the P&I Clause. When you get a J.D. come back and talk to me.
A gun case or Pandora’s box?
By Ken Klukowski and Ken Blackwell
Many have heard about the historic gun rights case going to the Supreme Court. Fewer have heard that this is also a major case for businesses and family values. It could lead to anything from court-ordered Obamacare to same-sex marriage. This is the biggest case of the year, and everyone has a stake in it.
On March 2, the Supreme Court will hear arguments in McDonald v. City of Chicago. It is a gun rights case, challenging Chicago’s categorical ban on handguns. The ban is essentially identical to the D.C. gun ban that was struck down by the Supreme Court in the 2008 case D.C. v. Heller, in which the court held that an absolute ban in the federal city violates the Second Amendment.
The question in this case is whether the Second Amendment applies to cities and states as it does to the federal government. The Bill of Rights applies only against actions of the federal government. Most of the Bill of Rights has since been applied to the states (or “incorporated,” to use the legal term) by the Fourteenth Amendment. The question in McDonald is whether the right to keep and bear arms is incorporated against the states.
So far, so good. More than 70 percent of Americans think the Constitution gives them a right to own a gun, and more than that think any provision in the Bill of Rights should give Americans rights against cities and states, not just the federal government.
The problem is that this case is more about the Fourteenth Amendment than the Second Amendment. Every provision from the Bill of Rights that has been incorporated to the states thus far has been incorporated through the Fourteenth Amendment Due Process Clause. There are all sorts of reasons that Due Process incorporation is problematic, but it’s the way the court has always done it. That’s why the National Rifle Association is focusing on this conventional approach in its brief to the court in McDonald v. Chicago.
However, the team representing Otis McDonald is pushing the court to consider a new route and incorporate the right through another provision, called the Privileges or Immunities Clause. Although that may sound like legal mumbo-jumbo, the reality is that it could change forever our system of federal and state government.
The Privileges or Immunities Clause says states cannot enforce any law that abridges the rights of U.S. citizenship. In 1873, just five years after the Fourteenth Amendment was adopted, the Supreme Court held in a landmark case called the Slaughterhouse Cases that this clause only extends to the states the rights of federal citizenship and strongly suggested that such rights must be found in the Constitution’s text. The high court thus rejected a claim brought by some Louisiana butchers asking it to strike down a state law regulating the slaughtering of animals around New Orleans.
What’s so important about that ruling is that there’s nothing in the Constitution about such an economic right. Had the court accepted the butchers’ argument and struck down the Louisiana law, federal courts would have the power to declare anything they want to be a right of U.S. citizenship and strike down any state or local law they don’t like.
The libertarian lawyers representing Otis McDonald in the current lawsuit acknowledge that their goal is to persuade the court to overrule the Slaughterhouse Cases. Then federal judges could use the Privileges or Immunities Clause to challenge state and local labor laws, commercial laws, employment laws and business regulations across the country.
That would destroy federalism as we know it in this country; life-appointed federal judges could override the decisions made by elected leaders that we, the voters, choose. The people ultimately making those decisions would no longer answer to us.
But that’s not the worst of it.
If the court overrules the Slaughterhouse Cases, the Privileges or Immunities Clause can mean anything courts say it means. The Supreme Court could declare a constitutional right to government-provided health care or “decent” housing, a free college education, a “living wage” or a clean environment, resulting in a court-ordered cap-and-trade system.
It also could completely change American culture, with the court having a new basis upon which to declare constitutional rights to abortion, same-sex marriage, obscene material or a child’s “right” to a public-school education over his parents’ objections. It’s because of these social issues, in particular, that the Family Research Council has weighed in on this case.
Although it should be about the Second Amendment, this gun rights case is, instead, a Trojan horse for everything except guns. It could remake America’s economy and culture. That’s why several conservative groups have weighed in with a brief asking the court to incorporate the Second Amendment through the Privileges or Immunities Clause but to do so without overruling the Slaughterhouse Cases.
McDonald v. Chicago is as big as it gets. All eyes will be on the Supreme Court early next year.
Ken Klukowski is a fellow and senior legal analyst with the American Civil Rights Union and authored the brief mentioned above in the case McDonald v. Chicago. Ken Blackwell is a senior fellow with the Family Research Council and the American Civil Rights Union and is the former U.S. ambassador to the U.N. Human Rights Commission.
*buzz* Wrong. What P&I does is that if I do something that is perfectly legal in my State and within the borders of my State, that someone in say... Wisconsin cannot try me in their Courts for it if it is illegal there.
Then federal judges could use the Privileges or Immunities Clause to challenge state and local labor laws, commercial laws, employment laws and business regulations across the country.
Actually, it goes boths ways. State courts could smack down Federal mandates as they exceed the FedGov's Constitutional limits and as those Federal Laws violate what the People of those States might prefer to enact at the State level under the 10th Amendment.
You guys really know how to turn this stuff on it's head.
Then what does any of this matter? With or without P&I we're still screwed.
Or are you arguing against this because it WILL make a difference giving us our freedom back and that scares the piss out of you.
Absolute nonsense. Where exactly did you get your J.D. from again? Oh yeah... Wait.
Actually, it goes boths ways. State courts could smack down Federal mandates as they exceed the FedGov's Constitutional limits and as those Federal Laws violate what the People of those States might prefer to enact at the State level under the 10th Amendment.
LOL! Really Now? Please cite authority for this position. I really would love to see it.
You guys really know how to turn this stuff on it's head.
You really have no clue about Constitutional law. Again, come back and talk to me when you get your J.D.
We'd be even more screwed under the P&I clause. We need to get the Federal Courts under control and make them actually follow the Constitution.
Or are you arguing against this because it WILL make a difference giving us our freedom back and that scares the piss out of you.
You can insist this all that you want, but that will not make it real.
Do you really trust the Federal Courts to behave? Really? Do you really want to give the Federal Courts more power? A simple yes or no will suffice.
Apparently, more than you.
How so? You just said they are ignoring the Constitution in any case.
I don't trust the Fed Gov. I don't trust the State Gov. Anything that stands between them and me is a good thing. An additional paper shield isn't much, but it's better than me having to hunt down and exterminate wanna-be tyrants personally.
The Federal Courts exert too much power as it is. Partially because of Slaughterhouse. Then again, the State legislatures and courts are exerting too much authority as well.
They both need a smack down. I see this case as righting that wrong.
Sorry that you are so twisted up over the whole "libertarian" thing that you can't see the logic. This is a personal problem though and is beyond my ability to help you.
Wrong.
You can exert far more power over the State government than you can over the Federal Government. That's why the Framers set up a Federalist system in the first place. This isn't a matter of giving you an additional paper-shield. It's the opposite. It's giving the courts a new sword to use against people.
Keep in mind that the judiciary is the most dangerous branch of government. They need to be limited as much as possible.
The Privileges or Immunities Clause?
Or the Due Process clause?
The one that wins. Gura, it would seem, wants to prove a point rather than win the case. I'm not getting the warm and fuzzies at the thought that Mr. Gura has some sort of conservative bee in his bonnet and that he's gambling with my 2nd Amendment rights to address some other issue.
I hate this Leftist interpretation of the BOR. The ammendments establish guaranteed rights while at the same time, 'restricting' the Feds in particular ways. Without these 'guarantees', we'd still be colonies 'cause nobody with a brain would join such a Union. And without certain restrictions on the Feds and the 10th ammendment to ensure State sovereignty on issues not specifically covered in the Constitution, only an idiot would sign on to such a plan.
Before the signing, had I lived in Virginia, I'd have thought of myself as a Virginian- not American. That would come later after the Constitution was signed and a Union formed.
Each ammendment contains either 'rights' that should exist or 'restrictions' that would be incumbent upon the new government at it's conception.
The first ammendment establishes freedom of speech and assembly (two rights) while adding a federal restriction on establishing a religion. Two rights, one restriction. The second ammendment talks about militia and security and then mentions one right, the right of the people to keep and bear arms. One right, no restrictions (on the feds). One could go through each ammendment and do the same- only to find that rights and restrictions can be found residing within the very same ammendment.
I think the 14th ammendment is redundancy and reflects an unwillingness to assign full power to the first 10 ammendments as the most basic of rights (along with govt restrictions) any citizen would have the 'priviledge' to enjoy as well as the 'immunity' from denial by other entities (states) of said rights.
Gay marriage? See ammendment 10, see what your state has decided.
Abortion? Again, see ammendment 10, see what your state has decided.(Caution, Declaration of Independence may have effect here by virtue of mentioning 'Life'- states allowing abortion might want to re-assess their charter as a majority of states would be within their right to end membership in said Union by such states who ignore the DOI[rejecting the DOI is tantamount to endorsing a DOD (Declaration of Dependence) anethema to freedom])
Forced to feed and house National Guard? See BOR- ammendment 3 restriction, trumps any state, tell them to take hike- call us if governor has a problem with that.
Red Light Cameras? See BOR ammendment 4- clearly an unreasonable search (searching every vehicle to nab a criminal) violates the people's right to be secure in...their effects (car). We'll call your governor and suggest other revenue raising ventures that do not violate the Constitution.
The above are but a sample of ways in which We The People have been priviledged, but haven't been, by a Court with too few wise Latinas. The second ammendment clearly states a 'right', while not placing any 'restriction' on the Feds (they're not even mentioned), as so many communists like to view the Bill of Rights.
The 14th just clouds the BOR with billowing words and OZ-like deception in an attempt to do (again) what was already done. Our feds have crapped on our constitution, our states have too, and if McDonald does anything I hope it exposes the malfeasance and fraud we've had to endure from this Court over the years.
For too long, we've had them dump scalding coffee in our laps with no recourse and, as a society, we have the scars to show for it. If I were a lawyer, I'd sue the courts (all of them) for being stupid shitheads. And, I'd win.
So says anonymous Intarwebs poster with the specious arguments...
Let me guess, you were also the door gunner on the space shuttle.
The little fact you keep tripping over, besides not closing your italics tags correctly, is that the Fed Courts are ALREADY being used as a "sword" against us. Kelo? McCain-Feingold? Roe? Miller?
Finally ruling that We as US Citizens have a certain amount of Immunity due to the Protections for our Rights puts entire areas of human endeavor off limits to the Government. State and Federal. This restores the idea that our Rights are paramount to government's limited authority.
This is a good thing.
I missed that little tidbit in the article. Thanks for posting THAT little piece of malicious drivel out.
"The whole of the Bill [of Rights] is a declaration of the right of the people at large or considered as individuals... It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of." - Albert Gallatin, October 7, 1789
Art 6 para 2
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority 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.
The First 10 Amendments to the Constitution as Ratified by the States December 15, 1791
Preamble
Congress OF THE United States begun and held at the City of New York, on Wednesday the Fourth of March, one thousand seven hundred and eighty nine.
THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution
RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States, all or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.:
ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.
That the BoR only applies against the FedGov is one of the WORST decisions ever to have come out of our Federal Court system. That it has been perpetuated nearly since the beginnings of our Republic only makes it that much worse.
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