Posted on 01/02/2010 8:18:36 PM PST by neverdem
Understanding the controversial 1873 decision at the center of the Supreme Court's upcoming gun rights fight
The Supreme Court has set a date of March 2, 2010, for oral arguments in McDonald v. Chicago, the case that will decide whether the revival of the Second Amendment won in 2008’s Heller case will extend to overturning gun control restrictions imposed by local and state governments.
The legal briefs from the plaintiffs, and many of their amici, are now circulating. And an interesting division in the preferred strategy for winning the case has appeared, one based on the daring legal gambit around which most of lead McDonald lawyer (and Heller lawyer) Alan Gura’s brief is built.
To understand Gura’s radicalism, we need to take a quick stroll through a century and more of legal precedent. For decades, the rights contained in the Bill of Rights (both explicitly enumerated and unenumerated) were interpreted to bind only the federal government (see the 1833 Barron case, regarding takings under the Fifth Amendment, for the beginnings of this line of thought). Then in 1868 the 14th Amendment was enacted to impose substantive limitations on the ability of state and local governments to infringe individual rights.
The 14th Amendment was passed in the historical context of Reconstruction, when many southern governments were violating the rights of newly freed blacks. As many of the briefs in McDonald detail quite convincingly, one of the rights that was almost universally understood to fall under 14th Amendment protection (or to use the lingo, one of the rights meant to be “incorporated” on the states via the 14th) was the Second Amendment right to keep and bear arms.
The 14th Amendment lists three distinct ways in which states and localities are prohibited from violating our rights...
(Excerpt) Read more at reason.com ...
2nd amendment ping
I hate to say this, and I’ll be flamed for doing so. But the federal constitution’s 2’nd amendment was never meant to secure the individual rights of anybody. I thought so for a long time until I started researching and studying the origins of our nation. The constitution was an agreement between the states and the confederacy (we never thought of the confederacy as the “federal government” until the north won the war and the 13’th Amendment was enacted). That’s why every state (not province) enacted their own constitutions; that was the deal between the government and their constituency. It’s up to Chicagoans and Illinoisans (are these really words?) to change their state’s constitution to ensure their rights to bear arms. The federal constitution’s 2’nd Amendment only insured that the confederacy wouldn’t attempt to ban guns within the states. Now federal laws against guns can be challenged in the federal Supreme Court because every federal gun law on the books is unconstitutional. But the states, pending they don’t have their own version of the 2’nd amendment, have the right to ban weapons. Washington DC’s gun ban was unconstitutional because it’s a federal jurisdiction, not a state. It was Abe and his unconstitutional war against the south that is responsible for every federal overreach we suffer under to this day.
Thanks for this link, it will be an important decision.
Too many legal theorists get caught up in trying to demonstrate in some way that the 14th has an affect on the 2d.
The right to bear came with us from England and was prexisting at the time of the Constitution. The 2d and the 9th are sufficient to preserve that right.
Imagine the response if one had advised the ratifiers that the right to bear wouldn’t exist until the 14th, and perhaps not even then.
This was an interesting read. It could be used in a number of ways from 2nd amendment rights to the invalidating of compulsary healthcare.
Interesting.
The Constitution is neither a "living document" nor a "dead letter". It has been modified many times.
Your posting would seem to suggest that the Fourteenth Amendment would have protected the rights of recently freed slaves except for the right to keep and bear arms for self defense; a right which pre-existed the Second Amendment.
ping
I disagree, and so did early state courts (there are state court decisions pre-Baron that find that the Second Amendment applied to the states).
Also, if the second wasn’t directed at the states before the 14th amendment, it certainly was after the fourteenth amendment. Discussions held during the ratification of the 14th were directed at the importance of extending the second to the states. (Scalia talks about this in Heller).
In light of the 14th, whether the 2nd was originally intended to apply to the states is moot and largely a question of historical interest as it does not affect the rights that you should currently possess.
No, what I'm saying is that prior to the 13'th Amendment, it was unheard of for the "federal government" to intervene directly with a state's residents. When we were formed, our states (not provinces) were 13 independent mini-countries that entered into a pact much like the European Union when it was formed. We were 13 independent "states" that entered into a confederacy in which the Constitution was the agreement between "these several states." With Lincoln's unconstitutional war came the thought that our agreement became a portion of government itself. It's no different than if the UN decided to be a government of its own and treat all of its member states, including the USA, as a provincial entity within its jurisdiction. So, the 2'nd Amendment was one of many guarantees against the confederacy turning into a government with jurisdiction within each sovereign state. In other words, the 2'nd Amendment wouldn't attempt to disarm the people of any one state; it was not a guarantee that a state didn't disarm its own citizens. That's why most, if not all states, have within their own constitution (their own contract with the residents of their state) a similar provision guaranteeing their right to bear arms.
You are right, and sadly. Because, although I love to pack my weapon, the 13'th amendment forward - after the north won an unrighteous war, is responsible for every federal overreach we suffer under today. We'll never be the nation we were founded as because of it. That's why the federal government can force the states to pay for federally enacted welfare, abuse the interstate commerce clause, and basically treat the states as provinces instead of sovereign states. The abuse began during the civil war, continues today, and will only get worse. Sad.
As the Chinese are supposed to say, “May you live in interesting times.”
I welcome the overturning of a precedent that has long bothered me, at the same time fearing the consequences. A ‘legal opportunity’ for the present mad-with-power judiciary extends far past any 2nd Amendment gains. A little background first, from Gura’s argument:
“Slaughterhouse illegitimacy has long been all-but-universally understood. It deserves to be acknowledged by this Court. Because Slaughterhouse rests on language not actually in the Constitution, contradicts the Fourteenth Amendment’s original textual meaning, defies the Framers’ intent, and supplies a nonsensical definition for Section One’s key protection of civil rights, overruling this error and its progeny remains imperative. No valid reliance interests flow from the wrongful deprivation of constitutional liberties. The reliance interest to be fulfilled remains Americans’ expectation that the constitutional amendment their ancestors ratified to protect their rights from state infringement be given its full effect.”
This is fine as far as it goes, but what about, say, the 5th Amendment? In the case Hurtado v. California, 110 U.S. 516 (1884), the Court ruled that indictment by a grand jury has not been incorporated under the Fourteenth Amendment as applying to the States; California and other former Spanish colonial territories would face a nightmare in having to institute a grand jury system, and an appeal by every single convict behind bars in those states (which would essentially open the prisons, since a right cannot be limited to the future only).
What about the 1st Amendment? We all know how the Left has already turned ‘freedom of religion’ into ‘freedom from religion.’ Once “Congress shall make no law” becomes “States shall make no law,” we face unchecked rule by judges alone. As an amicus brief puts it, “The Slaughter-House Cases should not be overruled. Doing so would render the Privileges or Immunities Clause a tabula rasa, which this Court in the future could interpret to mean anything this Court chooses, making that clause a cornucopia of various rights devoid of any textual support in the Constitution, with profound implications for both social and economic policy issues in this country, as future Members of this Court could constitutionalize their personal preferences, foreclosing political solutions on these matters.”
Of course, leftist judges presently ‘constitutionalize’ their personal preferences. We already live in interesting times.
That must be why the Constitution starts with the words "We the People".
The Constitution grants powers to the national government, while it restricts both the states and the federal government. The difference being that the national government has *only* the specific powers delegated to it, while the states are only restricted by the powers specifically denied to them.
The Constitution is a contract between the people, the states, and the national government.
Because the states held separate ratifying conventions, rather than having the state legislature vote on the issue, the contract cannot be just between the state governments and the national government.
BTW, it's the 14th amendment(Proposed 1866; eatified 1868) that is at issue here, not the 13th. The 13th ([Proposed 1865; Ratified 1865]> banned slavery.
Oh, and states do not have rights, only powers.
we never thought of the confederacy as the “federal government” until the north won the war and the 13’th Amendment was enacted
Not so. Actually, in Madison's Federalist #39, he points out that the Constitution is, operationally speaking, a mix between a federal and a national system. In a number of the Federalist essays, "Publius" clearly distinguishes between the federal system established by the Constitution and the confederal system that then existed under the Articles. I think what you're getting at is that after Lincoln, we moved from a federal system with the proper constitutional equilibrium to an increasingly imbalanced unitary system.
But the states, pending they don’t have their own version of the 2’nd amendment, have the right to ban weapons.
Not so, if we take what Madison said in Federalist #84 at face value, when he stated that the very words of the Preamble, about "we the people" who "establish and ordain" the Constitution was basically a carte blanche statement of contract between the people themselves (apart from their States) and the federal government established by the Constitution, which would imply that federal affirmations and protections of the peoples' inherent liberties operate independently of whether the States chose to affirm those liberties in their State constitutions.
The 13th and 14th amendments didn’t enable the government to do what they are currently doing. Neither of these empowers the government to act through the commerce clause or spending clause in ways that it previously could not. Additionally, neither creates unlimited grants of power to the government to enforce rights. The problem that we are in was caused by corrupt and chicken politicians, voters, and justices. The great depression era decided that “security” was more important than freedom, and we have been paying since.
Although correct in what “The Father of the Constitution” wrote, he never meant it to be what it is post civil war. Even Lincoln supported the right to sever from an overreaching confederacy. Never before the 13’th Amendment did the confederacy try to overstep into state policy. This created competition within the states to be the most libertarian. Now, it doesn’t matter what the states decide within themselves, the federal government reaches in and does as it pleases. This was exactly what the founding fathers wanted to prevent, thus making states sovereign to the point that neither would affect the another.
Since I live in one of the states which you point out does not contain an explicit protection of the right to keep and bear arms, I am sensitive about this issue.
I challenge your claim that "...the federal constitution’s 2’nd amendment was never meant to secure the individual rights of anybody."
Many people attempt to ascribe special meaning to the phrase "privileges and immunities" as if the words themselves have no independent meaning.
An "immunity" is a protection against the exercise of government power. When a person is granted "immunity" from prosecution, that prevents the government from exercising such a power against that individual. Similarly, "diplomatic immunity" prevents the enforcement of practically any law against those who are in the country as diplomats from another nation.
Clearly, the Second Amendment is an "immunity" which bars enforcement of any law by the federal government which infringes the right to keep and bear arms. This same immunity was intended to be expanded by the Fourteenth Amendment to include actions by the states against recently freed slaves.
Many of our nation's Founders KNEW that the existence of slavery within the U.S. was a compromise which would later threaten the existence of the U.S. To suggest that the victory of the "Union" over the Confederacy is not a legitimate exercise of the will of the majority would be identical, I think, to suggesting that the Founder's victory over the monarchy was not legitimate. Elections have consequences. Wars have consequences.
Oh, I agree with you in general principle, though I think you are talking about the "positive" (from an action point of view, not necessarily in the quality of the results) action of federal government interfering with the rights of the States, while I am talking about the "negative" principle of the federal government acting to prevent the States from interfering with the rights of the people. Two different things altogether.
But didn’t the original 13 states ratify the constitution thereby agreeing to the terms? And isn’t that ratification an acknowledgment of the Bill of Rights and an agreement to be bound by it?
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