Posted on 02/26/2010 5:03:19 AM PST by marktwain
Washington, DC - -(AmmoLand.com)- Are the 50 states required to obey the Second Amendment?
Or can they do whatever they want, with no obligation to respect our right to keep and bear arms?
Thats whats at stake in the Chicago gun-ban case, McDonald v. City of Chicago, at the U.S. Supreme Court, where oral arguments will be heard this Tuesday, March 2, with a decision expected in June.
Im hitting the road tomorrow (for two Texas conventions) and will be at the Court for eyewitness reports. The circus atmosphere does not appear to be in the air yet this case could have more far-reaching consequences than the Heller case.
Theres no disagreement that when the Second Amendment and the Bill of Rights were ratified in 1791, they were designed to control the federal government only, not the states. Did the 14th Amendment change that?
The Colonists and the Founders were intensely afraid that a strong central government would eventually confiscate the rights cherished by early Americans the very things that made America great and that have drawn people here like magnetism.
It was not a baseless fear, as we can see clearly from constant and growing federal usurpations of our rights and freedoms, with massive accumulations of power in Washington, D.C.
The First Amendment says it plainly: CONGRESS shall make no law (emphasis added). The whole idea was to control the central government, not the states (which had their own protections and statements of rights).
The idea that the states should also be obligated to respect the fundamental rights in the national Bill of Rights didnt arrive until 1868, with the 14th Amendment. And that was a result of the end of slavery the former Confederate states did everything they could think of to deny virtually any rights to newly freed slaves especially the right to keep and bear arms.
Congress, led by the northern states, declared that all Americans had rights and that, 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 (the key 52 words of the 14th Amendments 435 words, emphasis added). The historical record is emphatic in noting that the right to arms, especially for freedmen, was a prime mover in passing this amendment.
That language is clear, but heres where it gets tricky, and the heart of the McDonald case. Passage of 14A didnt automatically protect all citizens. What exactly are all the rights, privileges and immunities of the people? For reasons too complex to go into now, rights in the Bill of Rights have been applied to control the states, but only one at a time, by the U.S. Supreme Court.
There were two main ways to do this the Privileges and Immunities clause (which protects only citizens), and the Due Process clause (which applies to any person). The Court has essentially abandoned the P&I clause, and relied mainly on Due Process.
A set of cases, combined into The Slaughterhouse Cases (look that up, its fascinating) pretty much gutted the Privileges and Immunities clause, by saying the only rights you have as an American are extremely narrow. The P&I clause has essentially been a dead letter since that case in 1873 and this is why McDonald v. Chicago is seen as so critical it could breathe life into the heart of the 14th Amendment. The Second Amendment is the subject matter, but the 14th Amendment is whats at stake. OK, OK, theyre both at stake.
With a key chunk of the 14th essentially dead, the High Court has relied on Due Process to apply (legal eagles say incorporate) the Bill-of-Rights rights against the states. Thats why states cant search and seize your property without a warrant (well, in theory at least the states have usurped enormous powers too). The Due Process clause is why free speech cannot be denied by the states (again, only in theory the abuses here are so great its the subject of my next book: Bomb Jokes At Airports And 186 Other Things Youd Better Not Say).
So now were at the case in hand. Chicago has pretty much outlawed or severely infringed firearms rights for anyone in the city. All the citys powers are basically derived from the state of Illinois. Does Chicago have legitimate power to outlaw your rights? It says yes.
Is Chicago obligated, under the 14th Amendment, to honor and respect your rights? It says no, it can do as it pleases and screw your rights, just like other abhorrent petty tyrants currently running loose without nooses in the United States. (FWIW, Illinois, Maryland and New Jersey filed briefs supporting Chicago, a total of three arguing against RKBA rights.)
I say, along with a huge chunk of this great country, that the states should be as totally bound to protect and safeguard the rights you have as an American citizen as all government should be. (38 briefs were filed in defense of our rights, including one by 251 congressmen and 58 senators). I go a bit further and say the bigots who have been denying and repressing your rights all this time belong in prison, but were not likely to go that far. This time.
People who know about these things believe it is most likely that, if the High Court decides the states are obligated to honor the Second Amendment (and by implication, the entire rest of the Bill of Rights) they will apply the Due Process clause to justify their reasoning. Thats how its always been done, thats the most safe and precedent-ready route, and thats the best argument to press. Or is it?
Hopes are huge and the Court has subtly signaled that it is ready to finally breathe life into the P&I clause, and that has become the dominant argument for the petitioners (McDonald, et al.) and their attorneys, led by Alan Gura. The Court has all it needs to go the Due Process route, why not give it the encouragement it needs, seems to want, to rebirth P&I.
And heres where it gets really interesting. McDonald v. Chicago is seen as the best opportunity in more than a century to fix the harm done by Slaughterhouse. There is virtually unanimous consensus that Slaughterhouse was bad law, decided for bad reasons, and that it needs to be overturned. It has killed off a crucial part of a crucial constitutional amendment, and the times, and the Court, and the legal system are ready to set it right. It means upsetting a huge apple cart, but its time.
Even though the subject matter of McDonald is gun rights, and a positive decision will have enormous positive impact on everyones right to arms, many on the political left are supporting this case. Talk about strange bedfellows. They want that 14th Amendment restored because they see it as a linchpin for all sorts of possible civil rights they envision in the future. Think of every wacky demand the left makes, and then imagine these are found, one by one, to be civil rights the federal government can force the states to honor and protect.
Yes, were delighted that the states may be forced by our friends the feds to honor our right to keep arms and our right to bear arms. We can conveniently overlook and rationalize any concerns about federalism the concept that states are sovereign and independent, and in many matters can decide on their own how their territories will be run. Force from federal mandates seems just fine to protect free speech or stop search-and-seizure abuse, or to protect RKBA. But how well that flies if its newly discovered privileges and immunities (polygamy? drugs? animal rights? affirmative action? debt? medicine? carbon neutrality? diversity? greenness? diet?) remains to be seen.
Those are far fetched and unlikely concerns, according to most people in the know. And the idea of losing the case, leaving states free to trample our precious right to arms, is just unthinkable. Giving up the best chance weve had in our history to right the wrongs of Slaughterhouse is not an easy option to consider. But the NRA, with laser aim on reinstating the rights of Chicagoans, has stepped into the fray, and asked for and received part of the tiny argument time (30 minutes) Alan Gura has before the Court.
The NRA has retained Paul Clement, the former solicitor general whose experience before the Court is unrivaled (and who wrote the pro-rights brief signed by 58% of the U.S. Congress for this case). The NRA wants to make sure the Due Process arguments are firmly made, since Mr. Gura has chosen the somewhat riskier focus on the Privileges and Immunities clause (though both camps make arguments for both approaches). The NRAs request for time, unusual but not unheard of, was definitely a fly in the ointment, but an ointment they felt needed a stir and examination.
To be sure, many of the friend-of-the-court amicus briefs filed in this case brought up and documented well the value, need and reasons to re-establish the P&I clause but it would break very new ground. So the NRAs position is not out in left field they are recognizing and making the more traditional case based Due Process. Its a double-barreled approach for success. which is a good thing. Probably. You never know when the Supreme Court gets its hands on an issue.
The most dangerous game may be the side note about Chicagos gun-registration scheme. If you can have a gun there at all it must be re-registered every year, most guns simply cannot be registered, and if you miss your renewal date (and fee for every gun you own) the gun(s) becomes permanently unregisterable and contraband. Is that OK? The Courts handling of this policy if they decide to touch it (and it seems they may have to based on the facts of the case), is fraught with danger for gun rights.
So there you have it.
In the amicus brief my company Bloomfield Press filed with lead attorney Chuck Michel and dozens of district attorneys, gun rights groups from Texas, Virginia and Arizona, sheriff Richard Mack who was behind the original Brady law case (which he won) and others, we mainly left the 14A arguments for others. Instead, we addressed some essential points that got far less attention.
Our brief establishes this crucial point: the Second Amendment protects an American right that is long standing, deeply rooted and truly fundamental, and therefore meets the tests for incorporation under the 14th Amendment.
We did this with five separate arguments, two of which were a direct result of the work I did with attorneys Dave Kopel and Stephen Halbrook on my 10th book, Supreme Court Gun Cases. We found 92 gun-related cases the Court had heard (starting in 1820) up to that time (2003) and they were uniformly consistent with an individual right to keep and bear arms. (By my count, the Court has actually heard 103 gun-related cases at this point. McDonald will be the 104th).
In 14 of these prior cases the Court repeatedly stated every basic tenet of self defense in effect today. The Heller case forced the modern-day judiciary to finally unambiguously recognize and accept self defense as a core reason and justification for the right to arms in the first place. The public already understood this well. We carefully documented which classic cases supported which aspects of self defense (innocence, reasonable belief, grounds for belief, actions not words, necessity, equal force, immediacy ends, retreat and chase, plus rightfully armed, mutual combat, wounding and withdrawal) to show how solidly grounded these rights and issues are in the High Courts existing jurisprudence.
Supreme Court Gun Cases
Supreme Court Gun Cases Supreme Court Gun Cases is now available as a complete and fully searchable PDF eBook online or as a mailed CD (for a fraction of the original 672-page books price, which is now out of print). http://www.gunlaws.com/supreme.htm
The Heller Case: Gun Rights Affirmed! has the complete case that saved the Second Amendment, with 400 key quotes highlighted and plain English analysis, plus summaries of the first 96 gun cases the High Court has decided. http://www.gunlaws.com/hc.htm
My next post is planned for the evening before the oral argument (Im breaking my infrequent-posts rule, but you understand). Ill be down at the courthouse to see the theatrics, though Im not expecting much. The wind went out of those sails with the Heller case (and camping out in early March is a much tougher gig than in D.C. in October). Still, with both the left and the right focused on this seminal 14A hearing, well, Ill let you know what I find. Fortunately, Ill spend the night in my hotel. Alan.
P.S. In Heller, when we waited with bated breath for the bottom-line result we wanted to hear Affirmed. And we did. In this case, were rooting for Reversed. That means the lower court decision supporting Chicagos gun-rights denial, which is being challenged here, is overturned.
The McDonald v. Chicago petitioners website, with background: http://www.chicagoguncase.com
The amicus brief joined by Bloomfield Press: BLOOMFIELD PRESS McDonald v. Chicago amicus curiae brief
Background on all Supreme Court Gun Cases: http://www.gunlaws.com/supreme.htm
My initial summary and press release on the issues: http://www.gunlaws.com/McDonald_v_Chicago_BP_Amicus.htm
Every amicus brief filed: http://www.abanet.org/publiced/preview/briefs/feb2010.shtml#mcdonald
Supreme Court official website: http://www.supremecourtus.gov Alan Korwin Bloomfield Press We publish the gun laws. 4848 E. Cactus, #505-440 Scottsdale, AZ 85254 602-996-4020 Phone 602-494-0679 Fax 1-800-707-4020 Orders http://www.gunlaws.com alan@gunlaws.com Call, write, fax or click for free full-color catalog
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States
And that disagreement is what prompted the 14th Amendment after the civil war, when former slave states refused to give the freed men the right to bear arms. This infringement, as Condi Rice once explained well into the 20th century. It was mostly Democrats who were restricting blacks from owning and wielding firearms in their own self defense.
The issue of 14th Amendment incorporation has been done by the Supreme Court in piecemeal fashion over time.
The Supreme Court case next week is designed to address that issue ... decision will likely not come until summer as is the normal case with Supreme Court rulings. Stock up with popcorn, it's going to be a really good show.
Do they realize that the safeguards against their attaining near total power over the nation actually keeps their sorry rear ends afloat?
Consider what would happen if Obummer and the rest of the far-left national socialist democrats attained the power they seek Do they really think that Conservatives and other Liberty and freedom loving people would sit still for such a circumstance?
Do they really think that we would stand for them to be in complete charge of our lives?
If case they haven't figured it out we wouldn't and if they think we're Pissed off now......
Well, just wait and see if these safeguard on our Liberties and Freedoms are swept away in the name of National Socialist Healthcare or Global warming or some other Leftist Bull S....
You are correct. One of the earliest treatises on the Constitution (by Rawle) specifically says that the Second applied to both the FedGov and the states. The "Constitution only applies to the FedGov" idea arose with the onset of the "abolitionist" movement to prevent the FedGov from interfering with slave ownership in states with a large number of slaves.
William Rawle was a protege of Benjamin Franklin, and an eminent practicioner of the law:
"RAWLE & HENDERSON LLP, the oldest and one of the most distinguished law practices in the United States, was founded by William Rawle in Philadelphia in 1783. Rawle was a grandson of Francis Rawle, Jr., a Quaker merchant, economist, author and lawyer, who emigrated from Plymouth, England to the Province of Pennsylvania in 1686."
"William Rawle studied law at Middle Temple, London in 1781, and returned to Philadelphia to open the Rawle Law Offices on September 15, 1783. William Rawle quickly took his place among Philadelphia's legal elite, managing a successful law practice and participating in the formation of the new republic. Rawle's reputation as a lawyer vaulted him into the position of delegate to the Pennsylvania Constitutional Assembly of 1789. Rawle's public service continued when he accepted President Washington's request to become the first U.S. Attorney for the District of Pennsylvania. As U.S. Attorney, Rawle was instrumental in suppressing the Whiskey Rebellion in Western Pennsylvania and prosecuting the leaders of the insurrection. In 1792, Washington offered Rawle the position of federal judge for the new Pennsylvania district. When Rawle declined that post, Washington offered the position of U.S. Attorney General, which Rawle also declined, choosing instead to maintain his thriving private law practice and to serve existing clients and organizations in various positions of leadership."
"Rawle became the first chancellor of the newly-formed Philadelphia Bar Association in 1822, and remained in that position until his death. Rawle was a member of the American Philosophical Society, a trustee of the University of Pennsylvania, president of the local anti-slavery society, and founder and president of the Pennsylvania Historical Society"
Rawles book "A View on the Constitution" was used as a core text in Constitutional law in many law schools (including West Point).
Both Second Amendment Sisters and Maryland Shall Issue (Maryland’s citizens defense league) will be at the SCOTUS as early as 8:30 or 9:00 am to support McDonald in the McDonald v. Chicago hearing (scheduled to be heard at 10:00 am). I understand the NRA will rally at the Capitol, directly across the street.
You can bring signs, banners, and portable sound systems but no plastic pipe or wooden things to use to hang banners. And you may not stand on the steps (although the Bradys and others have broken protocol in the past).
You may not take signs into the building, although you may use the public restrooms. The Metro and pay parking are available at Union Station (exit and head to the left, down First St.). It’s a little over 2 blocks.
I hope a lot of folks will join one of the groups supporting McDonald on March 2.
Thanks for the ping- always appreciated, Joe.
The right to keep and bear arms is so essential that it got 2nd mention and was aimed at The People. Subsequent rulings to the contrary are wrong (have the Courts been wrong before?)
It is actually more basic than food and you'll notice, we don't tax food. Well, we shouldn't tax guns or ammo either.
A loaf of bread is nice, but when it's gone, you get hungry. Try beating a home-invader with one, if it's not stale and French, he'll hardly notice. But, with a gun you could put meat on the table and poke holes in the perp who doesn't have your best interests at heart (politicians certainly fit here as well as any burglar).
Essential as arms are to the security of the free state, those who couldn't afford ammo could be given 'ammo-stamps' according to some needs test. Like food stamps, if you already have enough ammo hanging around, you could trade them to your friends for cash to buy other necessities like booze, crack, whatever. It wouldn't cost much, a couple hundred rounds would likely last a year or more.
The 14th ammendment seems like a correction of past judicial errors where, had the BOR been interpreted correctly, it wouldn't have been necessary. How many more 14ths will we need in the future?
To see how fundamental our rights are as compared to say, England, look no further than the 4th ammendment. They have cameras all over the place which would be a violation of our "secure in their places", while we have them at intersections (which clearly violates the 4th) and will eventually install them incrementally everywhere else 'cause The State doesn't lose sleep over anyone's lost 'rights' and people are basically lazy (judges+politicians too).
If we're ever to change the direction of the courts (to stay on course with the U.S. Constitution), we may have to privatize it- give bonuses to those who get it right and pinkslips to those prefer to advance an agenda while violating the rule of law with impunity.
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