Killing Slaughterhouse

Understanding the controversial 1873 decision at the center of the Supreme Court's upcoming gun rights fight

(Page 2 of 2)

Even groups that support Gura's strategy of relying on the Privileges or Immunities clause to incorporate the Second Amendment urge caution. The brief filed by Arms Keepers notes that the Court must take care to “ensure that a revived Privileges or Immunities Clause will not become a Frankenstein’s Monster in later jurisprudence.” Thus, the brief asks the Court for “an interpretation that incorporates fundamental enumerated constitutional rights and nothing else."**

A brief from a group of state legislators also openly rejects the notion that the Court need explicitly overrule Slaughterhouse to incorporate the Second Amendment via the Privileges or Immunities Clause, arguing that the economic rights at issue in that 19th century case should not be considered an enforceable privilege or immunity.

Gura counters that “Nobody has a legitimate reason to fear a faithful interpretation of the Constitution, and nobody has any legitimate reason to fear effective and complete protection of civil rights. There are people who do fear what they might perceive to be a bad case following from the decision in McDonald, but the fact a future court might make an erroneous decision is no excuse to make an erroneous decision in this case.”

There are deeper political and ideological streams beneath some Second Amendment fans' disquiet with the Slaughterhouse strategy. “I think clearly some of these people [who want McDonald to win without overturning Slaughterhouse] are not really interested in securing the right to arms,” Gura thinks, “so much as they are interested in constraining civil rights in other ways.”

Some libertarian scholars, though, have never liked the idea of using the 14th Amendment to impose federal power over state law, whether or not the specific result might be one that extends rights in a salubrious direction. For example, Gene Healy, now with the Cato Institute, wrote in 1999 that “in practice, the Fourteenth Amendment has often operated as a grant of legislative and executive power to judges. And that power has been used to violate the very rights it was meant to secure.” Healy also noted a disturbingly high number of law students seeing “in the Fourteenth Amendment an irresistible engine for reshaping society along egalitarian lines.”

Libertarian philosopher Roderick Long noted, in the context of the Kelo eminent domain case, that “I am opposed to giving the Federal government the power to impose libertarian standards on the States, for the same reasons that I would oppose giving the United Nations the power to impose libertarian standards on the U.S. This is not because I think federalism takes precedence over individual rights, but rather because I think federalism is a better long-run strategy for protecting individual rights.”

Orin Kerr, a legal analyst writing at Volokh.com, thinks that Gura is neglecting his specific responsibilities towards the gun rights question at issue and is doing some libertarian wish fulfillment overreach when it comes to overturning Slaughterhouse. “Most Supreme Court briefs focus on trying to win the case,” Kerr wrote, “whereas this brief seems to treat that as an afterthought and instead is trying to use this case to achieve a long-time goal of the libertarian legal movement.”

Kerr thinks there is no way the current Supreme Court will accept Gura’s arguments. Kerr’s colleague at Volokh.com, the anarcho-libertarian legal theorist Randy Barnett, thinks Kerr's points don't hold up. First, Barnett notes that the Court had a chance to take up the National Rifle Association’s challenge to the same Chicago laws, a challenge that did not rely so heavily on a Privileges or Immunities Clause argument. Yet the Court chose to hear Gura’s argument, indicating they might not be as contemptuous of such thinking as Kerr guesses.

Also, Barnett notes that Kerr’s claims are “based in what he thinks will be the Justices’ dislike for the interpretation of the Privileges or Immunities Clause described in the brief. The conservatives will hate the references to ‘natural rights’ while the liberals will hate the references to ‘property.’ Fair enough. But notice that the brief does not offer Alan Gura’s theory of the Privileges or Immunities Clause. All the phrases to which Orin objects are taken from quotes from the historical sources. Was Gura supposed to conceal these sources from the Court or faithfully report them?”

Gura also thinks Kerr’s take on the strategy is mistaken. Gura tells me that he’s merely asking the Court to actually deal with the explicit language and meaning of the 14th Amendment. “It is always helpful when the Court decides cases based on the Constitution’s text and history. That way even those who might disagree can take comfort in knowing the Court actually addressed the meaning of the Constitution. It would make not just the opinion in McDonald more stable and accepted, generally speaking this approach increases people’s confidence in the Court. And we could get the 14th Amendment that we’ve always been meant to enjoy.”

It’s possible—legal analysts such as Kerr think it likely—that some of the pro-Slaughterhouse amici will get their way, and McDonald will be won on more traditional substantive due process grounds (the means through which other elements of the Bill of Rights have been incorporated against the states). Gura’s brief offers that argument as well, and if he wins that way, it would be a far less surprising victory than one based on killing Slaughterhouse.

If McDonald is won without the death of Slaughterhouse, it will still be a cheering victory for a core constitutional right. But if Gura wins the way he wants to win, he will have succeeded in creating a constitutional revolution of sorts, one with both promise and peril for keeping government power within prescribed limits.

Timothy Sandefur, a lawyer with the Pacific Legal Foundation who worked on a joint brief between that group and the Cato Institute, knows that a revived Privileges or Immunities Clause could be problematic in certain hands, noting especially that some progressive lawyers will surely use it to argue for some federal welfare rights allegedly contained within it. “But the left is going to do that anyway; they can also argue for welfare rights under equal protection and due process. There is no need [for supporters of a classical liberal vision of rights] to tie our hands because of a fear the left is going to abuse” the Privileges or Immunities Clause.

Senior Editor Brian Doherty is author of This is Burning Man (BenBella), Radicals for Capitalism (PublicAffairs), and Gun Control on Trial (Cato Institute).

**An earlier version of this article incorrectly stated that the Arms Keeper Brief called for overturning Slaughterhouse. It does not.

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  • ktc2||

    Awww...who quaint some people still think the constitution matters!

    That's sweet.

  • ktc2||

    Ugh! who = how

  • ||

    Aaaagh! The court overturning laws to protect Constitutional rights IS NOT JUDICIAL ACTIVISM!

    Unless, of course:

    (1) The law it overturns happens to be one you like, or

    (2) You believe that the Court, as a "coequal" branch of government, issues only advisory opinions on Constitutional matters, such that the legislature and executive are free to ignore Court rulings that a given statute is unconstitutional.

  • ||

    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.

    That train left the station a long time ago, folks. Griswold v Connecticut, Brown v Board, Roe v Wade, etc. Did the ACRU just arrive in a time machine from 1950 or something?

  • ||

    This is probably the Drug Warrior's biggest nightmare. Lose this and not even the Commerce Clause can shield the holy cause.

  • Roderick T. Long||

    Thanks for the link -- although that quote from me is a bit misleading taken out of context, since it was part of an argument whose final upshot was to favour the federal govt. imposing libertarian standards on the states, given the present circumstance in which the states have been largely absorbed into the federal government and have lost much of their decentralist character anyway.

  • Kroneborge||

    Boy, just imagine a future where the consitutuion means what is says. Instead of having to twist and turn it to get to a legalize meaning.

  • Stephan Kinsella||

    Reminds me of a great line by Joe Sobran: "What we need is an amendment forbidding the circumvention of the Constitution. It could read: “The Constitution shall not be circumvented.” I just got a big laugh from any lawyers who may be reading this."
    (Quoted here http://www.kinsellalaw.com/wp-.....review.pdf .)

  • Paul||

    Then in 1868 the 14th Amendment was enacted to impose substantive limitations on the ability of state and local governments to infringe individual rights.

    You know, liberals of all people should already be aware of this. Anyone remember 2 Live Crew? Congress wasn't making a law, Florida was trying to make a law, and yet it was a 1st Amendment case.

  • ||

    Liberals haven't been pro-free-speech in over a decade, dude.

  • Untermensch||

    Not entirely true. They have been selectively in favor of free speech. If you are a member of certain key minority demographics that vote democrat you can say whatever you want, no matter how stupid, ignorant, or offensive, and they will defend your right to say it. On the other hand, if you belong to groups traditionally associated with the other side of the aisle, then you have no rights to free speech in Libland.

  • Michael Ejercito||

    You know, liberals of all people should already be aware of this. Anyone remember 2 Live Crew? Congress wasn't making a law, Florida was trying to make a law, and yet it was a 1st Amendment case.


    Indeed.

    Although the First Amendment was originally intended to only limit Congress, that was modified in 1868 when the Fourteenth Amendment was ratified.

  • Paul||

    State deprive any person of life, liberty, or property, without due process of law

    You know, I've read this amendment a dozen times, and never saw this staring me in the face: So the state can deprive you of life so long as they follow due process...

  • ||

    Yes, that is why execution is legal.

  • Hobo Chang Ba||

    You're right though - as long as a court finds property "blighted" and developers use "due process" this section of the 14th amendment is rather meaningless. Politicians can always structure due process to get what they want.

  • Kroneborge||

    of course they can. It's called the death penalty, and due process is a trial by jury of your peers.

  • ||

    No, NO, NOOOOooooo!!! You do not get a jury "of your peers". That is a relic of English Common Law that commoners could not be jurors in cases against nobles and vice versa. Since there is no de jure aristocracy in this country there is no application of this.

  • ||

    You get to be judged by 12 people who weren't clever enough to get out of jury duty.

  • Paul||

    I hear what you guys are saying and it would be obvious to me. But some people claim that the 'cruel and unusual' makes the death penalty unconstitutional.

  • ||

    Yep. SCotUS ruled that near the end of the Warren era, and funny how stare decisis didn't hold there.

  • Michael Ejercito||

    Of course not. That ruling was a mistake, as the death penalty certainly was not cruel and unusual in 1789, and no subsequent amendment can reasonably be construed to redefine cruel and unusual.

  • Untermensch||

    cruel and unusual was understood early on to apply to certain sorts of punishment like hanging, drawing and quartering. Since in principle this was the sort of punishment the American founders theoretically faced for rebelling against English rule, this general sort of determinedly cruel punishment intended to cause physical suffering was what was in mind. Simple execution was not considered cruel nor unusual. So to argue that the Constitution forbids execution as cruel and unusual is historically myopic at the least.

    None of which argues whether we should execute or not on other grounds, but from any sort of reasonable reading of the Constitution that considers both meaning at the time and subsequent practice as witness of intent won't seriously argue that it prohibits execution on its own.

  • Michael Ejercito||

    But some people claim that the 'cruel and unusual' makes the death penalty unconstitutional.


    It was not considered cruel and unusual in 1789, nor did any subsequent amendment change that.

  • ||

    This goes to the "Living Document" argument that the Constitution is a guideline and not to be interpreted exactly as the framers had intended 220 years ago. I do by into this argument a bit. For instance, the second amendment specifically states "the right to bear arms", it does not say guns or muskets. The intention of the framers was that the people could form militia's with the best weapons of the time. If we strictly interpret the Constitution then we have to let any militia carry nukes and tanks, which I am not in favor of. Because these technologies were not around then, it is impossible for anyone to accurately determine what the framers would think of allowing militia's to arm themselves with nukes.

    Basically, I think the strict constructionist argument fails to treads water because you cannot apply 19th century thought to solve 21st century problems.

  • Paul||

    the 'cruel and unusual' phrase.

    My B.

  • Roderick T. Long||

    I'd be happier if it said "cruel OR unusual." Otherwise someone could claim that cruelty becomes fine as long as it's usual. However, I think it would be reasonable to interpret "cruel and unusual punishments" as though it were like "large and small animals" -- meaning not "animals that are large and small" but "both large animals and small animals." So I do think the Bill of Rights prohibits cruel punishments even if they're not unusual -- and I do think it would thereby be reasonable to take this as banning capital punishment (since the provision means to ban what's actually cruel, not just what the framers considered cruel).

  • Untermensch||

    “Actually cruel” is not an objective category, which is the problem. You cannot verify what is or is not “cruel”. Some would argue that locking someone up for their entire life is more cruel than letting them die a quick and merciful death. The decision is always (and inescapably) based on what someone (founders, current society, etc.) “considers cruel.” You can argue that our understanding of what is cruel has changed and that the Constitutional protection should apply, but don't believe that somehow we have arrived at the objectively right decision on that matter, since there is not one.

  • Michael Ejercito||

    So I do think the Bill of Rights prohibits cruel punishments even if they're not unusual -- and I do think it would thereby be reasonable to take this as banning capital punishment (since the provision means to ban what's actually cruel, not just what the framers considered cruel).


    Capital punishment was not considered cruel in 1789, when the Eighth Amendment was ratified, nor did any subsequent amendment modify or repeal the Eighth.

  • ||

    why do we need the 14th amendment here? The constitution doesn't say "federal government" or "congress" in the 2nd amendment.

  • The Total Idiot||

    Technically, the 14th amendment (and the 13th) was a moot issue. However, we never did fully implement article 1, section 9 or 10, the attainder clause, as it was interpreted by the founders. If you read through the papers, and subsequent court cases, it was explicit that attainder was any targeting of law by the legislature, i.e. the legislature placing separate law for different people. See federalist 57, us. v brown, aptheker v secretary of state, yick wo v. hopkins. It applied equally to the states and federal government, and the only way slavery could be maintained... was to have separate law for the slaves. It did not matter if the law was civil or criminal. The people themselves were bound from any takings of property, or rights from any minority without also forfeiting their own. General law, applied to congress, their friends, and the whole of society was all that was allowed.

    Quite a far cry from the myriad laws affecting different groups today.

  • Tim Cavanaugh||

    Since it's always my job to bring the rain:

    We should presume the court took this case specifically to knock down the incorporation-of-individual-rights-by-privileges-or-immunities argument, for the umpteenth time. Stevens, Ginsburg, and the Wise Latina will not want to undermine state powers of zoning, health and welfare services, etc. Alito, Thomas and Roberts can get to the outcome they want through due process, not p/i. And Scalia will rule for the pro-gun side only on due process grounds.

    That's if he rules for the pro-gun side at all. Scalia is committed to a limited view of what is incorporated under the 14th, and based on rulings like Troxel v. Granville, I think he's willing to rule for that principle even when the outcome isn't something he'd go for philosophically.

    Granted the Second Amendment may be more dear to him than the right of pushy grandparents to visit their kids' kids. But who knows? It's not like he grew up in Montana hunting elk.

    Bottom line: The right and the left sides of the court are in rare consensus about one aspect of his case: They don't want any further incorporation through privileges or immunities.

  • ||

    OK, but the question sits there - why grant cert to McDonald where the petition did raise this? You really don't have to affirm Slaughterhouse - there just aren't that many challenges to it. You take NRA and rule on the substantive due process grounds (either way).

  • ||

    The quote from the ACRU's brief, "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.", prompts my comment.

    This is deliciously disingenuous! The Slaughterhouse Cases were decided the way they were, originally, for precisely the reason set out in that brief. "My God!, if Negroes have such extensive rights, why the world would be turned upside down! Not to mention those Catholics, Irish, Mexicans ... heaven forbid such a result!" You can almost hear the words being spoken in the conference on that decision, can't you, when you read the original decision.

    That's the whole point of petitioner's brief: free all of us. The boys who fought - on both sides, you can't have a "good" war without an enemy - "died to make men free" as a popular tune of the Civil War era had it; the U.S. Supreme Court re-created slavery and included the white population in it. Now the present Court has the opportunity, explicitly before it, to do so. It would save us all a great deal of trouble and bother if they were to do so at this time in this case. There would be an enormous upsurge in non-statutory civil rights litigation - almost enough to make me want to come out of retirement and re-hand my shingle, by Joe! - but that's to the good as it might displace some of these tiresome "The nasty Christians want to talk about their god at football games" suits. The most recent of which, by the way, seeks a court injunction preventing any mention of Christ or Jesus in music being played to celebrate .. wait for it ... Christmas. Now, I'm a Buddhist, but that's just crazy! "Yes, you can celebrate your birthday. No, you can't mention your name or any explicit reference to you, personally, you know." Stone barking mad!

    The Arms Keepers brief is simply incomprehensible and insupportable. Unquestionably, there are more rights enjoyed by humans than those enumerated in the Bill of Rights! The men who wrote the damned Constitution in the first place and the Bill of Rights that followed it ratification said so, often and in public and in writing. (No, Johnny, not on the Internet. Al Gore didn't invent it until 1990.) So, of necessity, any and all of those rights both exist and are deserving of protection by the courts, state and federal.

    The "group of state legislators" brief can likewise be dismissed as self-serving and pitiful. "... arguing that the economic rights at issue in that 19th century case should not be considered an enforceable privilege or immunity.", this article says. More nonsense. Economic rights are the cornerstone of freedom, all sorts of freedom. If you can lose your job for not voting for the "correct" candidate, you are not politically free. Bah! Time-serving, self-gratifying parasites, every one! Footnote 1 on page 9 of their brief gives them away: "Amici submit this brief in their individual capacities, not on behalf of any State Government itself, but their views are informed by their experiences as State officials, and their interest in Federal and State Government institutions." I just bet! "their interest in ...Government institutions." Oh, what an admission against interest is that! Thieves, worried that their fence might be forced out of business; that's what that is! Precious. And you folks interested in state government operations ought to take note of who in your state is listed in the Appendix to *that* brief. I have and will vote against every damned one of them!

    And of course the Court is against it; it would entail curtailment of their power as well. Goes without saying, doesn't it?

  • Stephan Kinsella||

    "This is deliciously disingenuous! The Slaughterhouse Cases were decided the way they were, originally, for precisely the reason set out in that brief. "My God!, if Negroes have such extensive rights, why the world would be turned upside down! Not to mention those Catholics, Irish, Mexicans ... heaven forbid such a result!" You can almost hear the words being spoken in the conference on that decision, can't you, when you read the original decision. "

    If that was their thinking, do you think the Congressmen who enacted this, and the state officials who ratified it, were any less prejudiced? If not, why would they enact a bill that would do this? Obviously, they didn't think they were. They construed the language similarl narrowly to the way the Supremes did.

  • ||

    Perhaps you should wander over to Volokh Conspiracy and look up the J. Aldridge/Bingham drinking game.

  • ||

    The Congressmen who enacted it were, almost without exception, members of the Radical Reconstructionist wing of the Republican Party. Post-civil war, they dominated Congress until about 1876, give or take an election.

    The states' ratifications were again dominated by the same radicals, motivated by a desire to punish the rebels and former slave-owners. Ratification was relatively fast, given the speed of communications at the time, largely for the reason that at the state level the same folks controlled the outcomes. Rather a similar method to that adopted by the Obama administration over the last year, to shove through its agenda before folks woke up from the "systemic economic failure" smokescreen.

    The Supreme Court was, almost without exception, an entirely different and older generation of political critters and were responding out of an entirely different view of the proper role of rights, etc. Not to mention an older view of the proper place for those less white and well-to-do, with the last being as important as the first. "No dogs and no Irishmen" was still a common sign in saloons in the Northeast and note please that the dog gets top billing.

    The Fourteenth was a product of its time and place, written as such things usually are, in language for which anything might be claimed in order to secure it passage. The routine course of political and legal life could be relied upon to supress the occurence of a more radical and unintended outcome and it did so for most of the intervening years. Now, however, with a surge in genuine anti-government sentiment making an appearance - although certainly unlikely to be of much overall effect - it is possible that the present Court may do the deed and give life to the expressed language.

    juris-imprudent: Yes, I was three Thai beers into the boot when I commented; it's rather more fun at the time of writing, although the quality of the result suffers.

  • ||

    Ike: you actually seem to think the "Radical [sic] Reconstructionist wing of the Republican Party" in the 1870s was basically proto-Obama Progressivism. They weren't those stodgy, racist old dudes on the Supreme Court! Nooo, they would be perfectly happy having their white daughters marry black fellers, and would be pleased as punch to know that a half-black President would be in office in 2009--and that maybe his Court could finally, after 130 years, put their color-blind dreams into place.

    "The Fourteenth was a product of its time and place, written as such things usually are, in language for which anything might be claimed in order to secure it passage."

    Right. Which means it had ambiguous terms and passages. Which means it cannot be clearly construed to grant to Congress all the powers the modern libertarian centralists would for some reason like it to have.

  • 2999||

    As much as the SCOTUS is detestable and evil, they still represent the best chance for protecting and restoring our liberties.

    That is pretty sad.

  • ||

    Your last line sounds like the answer I gave to a GWB supporter who urged me, years ago, to dump the LP: He said his man W was realistically the best hope for liberty in our lifetimes. I would have given the same reply to any McCain supporter who had dared to suggest a similar thing about Johnny-boy in the last election -- but none of them had the nerve (or perhaps all of them simply had too much integrity) to do so.

  • ||

    Somebody help me: Was it once the accepted practice in State courts to pursue double jeopardy? To force people to testify against themselves? To deny the accused the right to confront his or her accusers and their witnesses? To deny the right of a speedy trial or trial by jury?

    In other words, didn't the State courts have to make good on the principles of jurisprudence guaranteed by the Constitution long BEFORE the 14th Amendment? And wasn't it clear that those guarantees were intended to apply to all regular courts, state or federal, that might be convened under the authority of the US Constitution?

    If not, could someone please point me to case law that declares otherwise? I'm serious about this. How could we have gone on for almost 100 years with federal courts observing constitutions and State courts doing whatever they (or their respective State constitutions) pleased? Something about that picture isn't right.

    If the jurisprudence guarantees of the Constitution apply to the Federal government and all inferior governments, as we might rightly expect, then how can anybody argue with a straight face that the 2nd Amendment does not also apply in the same way? On the other hand, if, once upon a time, State and local courts routinely stomped on the individual's jurisprudence rights as established in the Constitution, then I suppose I shouldn't be surprised if other constitutionally declared rights were accepted as being constraints on the Federal government alone.

  • Stephan Kinsella||

    " Somebody help me: Was it once the accepted practice in State courts to pursue double jeopardy? To force people to testify against themselves? To deny the accused the right to confront his or her accusers and their witnesses? To deny the right of a speedy trial or trial by jury?

    In other words, didn't the State courts have to make good on the principles of jurisprudence guaranteed by the Constitution long BEFORE the 14th Amendment?"

    The Bill of Rights was only a limitation on federal power before the 14th Amendment. That's why official state religions, say, Congregationalism, were perfectly permissible in 1791, when the Bill of Rights was ratified. (http://www.stephankinsella.com/2009/12/02/state-and-religion/)

    States were to be limited by their own bills of rights and republican form of government. The Constitution established a new, federal government, and the anti-federalists were very worried it would grow out of control (hmm, wonder why), so they insisted at the time of ratification of the Constitution (1789) that the federalists agree to quickly add a Bill of Rights to further limit the Federal Government's powers.

  • ||

    Oops. "How could we have gone on for almost 100 years with federal courts observing constitutions..." should have been "How could we have gone on for almost 100 years with federal courts observing US constitutional restrictions..."

  • Stephan Kinsella||

    by the way I set out what I think is the appropriate libertarian take on the 14th amendment here: http://www.stephankinsella.com.....amendment/

  • ||

    what I think is the appropriate libertarian

    Drink!

  • ||

    ? can you splain what you mean? link?

  • ||

    Ah, yes: authoritarian libertarianism. Freedom according to writ.

    Freedom is what happens when we are protected in our liberties as individuals by the proper use of the government and when we are likewise protected from its improper use. Anything more complicated than that is merely an excuse to enforce our own favorite version of life or to reward our political and business allies and to punish our opponents. Liberty is a process, not an outcome.

  • ||

    This otherwise informative article by Brian Doherty says that, "The brief filed by Arms Keepers...calls for Slaughterhouse to be overturned...." That's incorrect, and a correction to the article would be appreciated.

    The brief for Arms Keepers does NOT call for Slaughter-House to be overturned. Instead, the brief urges applying the right to keep and bear arms to the states “without overturning the Slaughter-House Cases” (page 2), “without overturning Slaughter-House” (page 4), “without overturning Slaughter-House” (page 6), “without overturning precedents like Slaughter-House” (page 22), “without overturning Slaughter-House” (page 24), and without overturning precedents like Slaughter-House (page 32).

  • Ride Fast||

    [...] Invalidating Slaughterhouse [...]

  • Ted||

    Although Slaughterhouse was a 5-4 decision, it seems strange to claim that Slaughterhouse "defies the framers' intent" when it was decided only a few years after the amendment was written. This isn't like today, where we're trying to interpret language written 200 years ago. When Slaughterhouse was decided, the authors of the 14th amendment were members of congress.

  • ||

    And the Supreme Court was merely putting their collective oar in the water for the Old Regime of Rule by Rich White Men by limiting the extent of the amendment. A full generation's difference in age and many many in Congress were the first in their families to ever hold elective office, let alone be what the elite of the time viewed as one of their own.

  • ||

    Healy also noted a disturbingly high number of law students seeing “in the Fourteenth Amendment an irresistible engine for reshaping society along egalitarian lines.”

    And we couldn't have that now...things might actually move forward if the government had to start treating people as individuals instead of members of groups and stop doling out favors and subsidies to the latter...god forbid.

    You can always count on Kerr and his stable of likeminded retread whores to badmouth the libertarian position. A free society relieved of the burden of arbitrary government action and redistribution is their worst nightmare because it makes their role as gatekeepers and obfuscators irrelevant.

  • Kaisha ||

    "as future Members of this Court could constitutionalize their personal preferences, foreclosing political solutions on these matters."

    Yeah, that never happens now...

  • ||

    Gura counters that “Nobody has a legitimate reason to fear a faithful interpretation of the Constitution, and nobody has any legitimate reason to fear effective and complete protection of civil rights. There are people who do fear what they might perceive to be a bad case following from the decision in McDonald, but the fact a future court might make an erroneous decision is no excuse to make an erroneous decision in this case.”

    I saw Alan Gura at a Federalist Society debate a few months ago, where he spoke about how he thought SCOTUS might rule on this issue. I gotta say, the man is brilliant. And this quote is merely on illustration of it.

    Oh, and BTW - both Mr. Gura and the other person in the debate (Virginia Commonwealth's Attorney for the City of Richmond, Michael Herring) agreed that it was quite likely that the Court will find the Second Amendment incorporated against the states - it's just a question of how they go about doing it. They seemed to agree that it was more likely the Court will go via the due process route, although Alan said he's going to push for overturning Slaughterhouse.

    We live in interesting times.

  • ||

    To all,

    I wish to state that the Supreme court, in the Slaughterhouse Cases, held that because of the Fourteenth Amendment there were now two separate and distinct citizens under the Constitution of the United States; a citizen of the United States, under the Fourteenth Amendment and a citizen of the several States, under Article IV, Section 2, Clause 1 [FOOTNOTE]:

        “We think this distinction and its explicit recognition in this Amendment (the 14th Amendment) of great weight in this argument, because the next paragraph of this same section (first section, second clause), which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several states. The argument, however, in favor of the plaintiffs, rests wholly on the assumption that the citizenship is the same and the privileges and immunities guaranteed by the clause are the same.” 83 U.S. 36 (1873), page 74.

    And:

        “In the Constitution of the United States, which superseded the Articles of Confederation, the corresponding provision is found in section two of the fourth article, in the following words: ‘The citizens of each State shall be entitled to all the privileges and immunities of citizens OF the several States.’ ” 83 U.S. 36 (1873), page 75.

    The last was later reaffirmed in Cole v. Cunningham:

        “The intention of section 2, Article IV (of the Constitution), was to confer on the citizens of the several States a general citizenship.” Cole v. Cunningham: 133 U.S. 107, 113-114 (1890).

    The privileges and immunities of citizens of the several states are those described by Corfield, cited in the Slaughterhouse Cases. This is reaffirmed in Hodges v. United States:

        “In the Slaughter House Cases, 16 Wall. 36, 76, in defining the privileges and immunities of citizens of the several States, this is quoted from the opinion of Mr. Justice Washington in Corfield v. Coryell, 4 Wash. Cir. Ct. 371, 380.” Hodges v. United States: 203 U.S. 1, at 15 (1906).

    So there are now two citizens under the Constitution of the United States. One needs to find out information on both. For a citizen of the United States that is easy. Just about anywhere. For a citizen of the several States one will have to begin here:

    http://citizenoftheseveralstat...../index.htm

    ____________

    FOOTNOTE

    The Effects of the Fourteenth Amendment on the Constitution of the United States

    http://www.australia.to/index......p;id=15882

    ____

  • bob march||

    SO... You are claiming that our 2nd amendment rights dont apply accept in Washington DC???? You must realize the stupidity of this viewpoint. If you dont like guns, dont buy one.

  • ||

    To all, (Part 1 of 2)

    I am writing to inform you that the links I provided in my prior comment (Dan Goodman 12.19.09 @6:06am), two entries up, no longer work. The new locations for them are:

    ____________

    FOOTNOTE

    The Effects of the Fourteenth Amendment on the Constitution of the United States

    http://www.australia.to/2010/i.....amp;id=327

    Also,

    A Look At Corfield (On Citizenship)

    http://www.australia.to/2010/i.....amp;id=331

    ____________

  • ||

    To all, (Part 2 of 2)

    There is also the following which I think would be appropriate.

    Comment on Petitioner's Brief: McDonald v. City of Chicago

    http://www.australia.to/2010/i.....Itemid=126

    http://www.americanchronicle.c.....iew/136777


    ____________

  • abercrombie milano||

    My only point is that if you take the Bible straight, as I'm sure many of Reasons readers do, you will see a lot of the Old Testament stuff as absolutely insane. Even some cursory knowledge of Hebrew and doing some mathematics and logic will tell you that you really won't get the full deal by just doing regular skill english reading for those books. In other words, there's more to the books of the Bible than most will ever grasp. I'm not concerned that Mr. Crumb will go to hell or anything crazy like that! It's just that he, like many types of religionists, seems to take it literally, take it straight...the Bible's books were not written by straight laced divinity students in 3 piece suits who white wash religious beliefs as if God made them with clothes on...the Bible's books were written by people with very different mindsets.

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