Understanding the controversial 1873 decision at the center of the Supreme Court's upcoming gun rights fight
Brian DohertyThe 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: “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.” READ MORE REASON
Warren Hathaway says:
ReplyDeleteOverturning Slaughterhouse is not the answer. Realizing that there are two citizens under the Constitution of the United States since the adoption of the Fourteenth Amendment is.
In the Slaughterhouse Cases, the Supreme Court held that citizenship of a State was separate and distinct from citizenship of the United States; that a citizen of a State was separate and distinct from a citizen of the United States:
“Of the privileges and immunities of the citizen of the United States, and of the privileges and immunities of the citizen of the State, and what they respective are, we will presently consider; but we wish to state here that it is only the former which are placed by this clause (Section 1, Clause 2 of the Fourteenth Amendment) under the protection of the Federal Constitution, and that the latter, whatever they may be, are not intended to have any additional protection by this paragraph of the amendment.” Slaughterhouse Cases: 83 U.S. (16 Wall.) 36, at 74 (1873).
That there are two citizens; a citizen of the United States, and a citizen of a State who is not a citizen of the United States, is shown in the following case of the Supreme Court of the United States, Sun Printing & Publishing Association v. Edwards (194 U.S. 377):
"As Delaware must, then, be held to have been the legal domicil of Edwards at the time he commenced this action, had it appeared that he was a citizen of the United States, it would have resulted, by operation of the Fourteenth Amendment, that Edwards was also a citizen of the State of Delaware. Anderson v. Watt, 138 U.S. 694. Be this as it may, however, Delaware being the legal domicil of Edwards, it was impossible for him to have been a citizen of another State, District, or Territory, and he must then have been either a citizen of Delaware or a citizen or subject of a foreign State. In either of these contingencies, the Circuit Court would have had jurisdiction over the controversy. But, in the light of the testimony, we are satisfied that the averment in the complaint, that Edwards was a resident ‘of’ the State of Delaware, was intended to mean, and, reasonably construed, must be interpreted as averring, that the plaintiff was a citizen of the State of Delaware. Jones v. Andrews, 10 Wall. 327, 331; Express Company v. Kountze, 8 Wall. 342.” Sun Printing & Publishing Association v. Edwards: 194 U.S. 377, at 381 - 383 (1904).