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To: Repeal The 17th
I would for like someone to explain how it matters in a practical sense
whether the case is founded on the “privileges or immunities clause”
or on the “due process of law”.
I do not understand what difference it makes to John Q. Citizen.

I'm no lawyer, but I read a lot of stuff since I came to this forum.

When you read the history of the “privileges or immunities clause” of the 14th Amendment, you'll find the right to keep and bear arms specifically spelled out as one of the reasons the 14th Amendment was needed. SCOTUS effectively neutered the “privileges or immunities clause” of the 14th Amendment in the Slaughterhouse case, and its progeny, Presser, Cruikshank and Miller(not the Miller case about sawed off shotgeuns in the 1930s - the other Miller case from the 1890s).

By nuetering the “privileges or immunities clause” of the 14th Amendment in the Slaughterhouse case, the SCOTUS basically hamstrung any more 9th and 10th Amendment jurisprudence and leaves the feds and states bound only by the "due process" clause.

The "due process" clause has since been qualified by SCOTUS into standards of review that black robes use as they see fit.

Substantive due process protects all rights from deprivation without rational basis - that is to say, the Government may not burden exercise of a right without having a reason for doing so. However, this reason may be pretextual or barely sufficient under rational basis review, and thus the protections of substantive due process for blanket rights are very weak indeed.[2]

Rights that are deemed "fundamental," though, may only be abridged if a compelling state interest exists, and the abridgment is narrowly tailored to suit that interest. In other words, to abridge a fundamental right, the state must pass "strict scrutiny."


25 posted on 03/05/2010 7:25:50 AM PST by neverdem (Xin loi minh oi)
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To: neverdem

Thanks, you seem to have a better grasp on this than I do.
Was Gura arguing for the whole loaf
while the NRA was willing to settle for half a loaf?


30 posted on 03/06/2010 3:55:51 AM PST by Repeal The 17th (Thank you for your contribution. Your comment has been submitted for review.)
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