Will the Supreme Court Incorporate the Second Amendment and Restore the Privileges or Immunities Clause?

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Following up on Brian Doherty's post about today's huge announcement that the Supreme Court will hear arguments in McDonald v. Chicago, it's also worth noting that the Court will not only decide whether the Second Amendment applies to the states, but whether that application occurs via the Due Process Clause or the Privileges or Immunities Clause of the 14th Amendment. This matters because restoring the Privileges or Immunities Clause has the potential to secure not just gun rights, but economic liberty as well. Remember that the Privileges or Immunities Clause, which the Supreme Court gutted in 1873, was designed to enshrine the free labor philosophy of the anti-slavery movement and to protect substantive individual rights—including the Bill of Rights—from state abuse. For the full story behind that, see here and here.

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  1. The Slaughterhouse cases, imo, rank in the top five worst Supreme Court decisions of all time.

    Justice Thomas has openly hinted that he would like to re-examine the privileges or immunities clause “in an appropriate case.” I hope we have found him the appropriate case.

  2. Ooh, ooh! Pick me! I know! I Know!

    No.

    Next question.

  3. Also would pave the way for same sex marriage.

  4. […] it’s also worth noting that the Court will not only decide whether the Second Amendment applies to the states, but whether that application occurs via the Due Process Clause or the Privileges or Immunities Clause of the 14th Amendment

    That would be a needless redundancy, considering the 2nd Amendment bars the states from infringing on the people’s right to bear arms. Since the Amendment does not explicitly indicate that only the Congress cannot infringe, and since it explicitly indicates this is a right reserved to the people (no mention of the states), and since the states ratified the Constitution with the Amendment, it should be clear that the right to bear arms applies also to all the States by virtue of the Amendment alone, no need to rely on the later Amendment.

    The real risk of relying on the Due Process or the Immunities clause is that the court may dismiss both as arguments for the right to bear arms instead of simply looking at the Amendment itself. It would be like saying “oh, since none of the clauses apply, then the 4th Amendment does not apply to the States!”, which would be an incorrect conclusion.

    1. Actually, you are wrong. The USSC has, as they say, “incorporated” most of the Bill of Rights to the States by way of the due process clause of the 14th Amendment, but not the 2nd, 3rd, or 7th. I mean, you can freely assert your opinion that the 2nd applies to the States, but the fact is that so far no Supreme Court has agreed with you. In Heller, the Court held only that the 2nd applied to DC, because it is a federal enclave. Thus the logic of your post has never been applied, and the USSC may or may not consider similar logic.

      However, the outcome of this ruling will not affect the vast amount of case law that already has incorporated, for example (again, using your example), the 4th Amendment to the States. So what you said “it would be like saying,” in fact, is something that no one is or would be saying.

  5. Good point Old mexican. There are people who call themselves libertarians and who post here that will tell you that the Bill of Rights only was intended to apply to the feds. Seriously.

  6. This may open the door for things not wanted by the majority, same sex marriage for instance, but even still, its time to put the 2nd Amendment where it belongs with the 1st and the others, back into prominence.

    Of all the amendments to be violated the most (per the Federalist Papers), the 2nd gets kicked hard by the softies and the liberals.

    Things change when good people aren’t restricted to their choice of firepower by a government that can promise neither safety nor prosperity against a demanding State.

    1. Of all the amendments to be violated the most (per the Federalist Papers), the 2nd gets kicked hard by the softies and the liberals.

      Just as the 4th amendment gets “kicked hard” by conservatives. Although I have never quite understood why.

      Things change when good people aren’t restricted to their choice of firepower by a government that can promise neither safety nor prosperity against a demanding State.

      Things also “change” when bad people are not restricted to their choice of firepower, which I am pretty sure is the aim of firearms regulation.

      Also, I don’t think that any Supreme Court will ever rule that the people cannot be restricted in their “choice of firepower.” I have never heard of a credible source arguing that the 2nd amendment bars our various governments from regulating access to high-powered military weaponry; for examples think of RPGs or SAMs. The current arguments are revolving around regulations of handguns, rifles, and shotguns.

      For another example, however this decision goes it will not overturn Miller, and US citizens will not be allowed to tote machine guns. It’s fairly narrow ground.

  7. SCOTUS had three cases to choose. They may have picked this one because of the chance to hear arguments on P&I.

    I hope Gura does a better job. He just about gave away machine guns in the last cases which was unrelated.

    Supreme Court judges like to bring up disparate issues to get the thinking how a lawyer may view that.

    The chance that Heller may gut the federal government ability to regulate machine guns by the 1934 was a big concern to the DOJ.

    I expect that in the P&I arguments that many other issues may be brought up and I hope he thinks of ways to counter them so not to scare the justices away from giving back P&I.

    Gura has the job to have a way that the justices can reinstate P&I. Incorporation is pretty much a given under due process and I think the justices have already decided that.

    I hope they integrate the Mahoney NY case.

    1. How will this decision overturn Miller (the 1939 decision)?

      This decision is not about whether a federal act will apply to the citizens of the States (which was the case in Miller wherein they ruled that the National Firearms Act of 1934 did not violate the 2nd amendment). It is about whether the States (or cities) can make their own regulations individually (or “severally” as it is often put in Constitutional terms), or whether THOSE actions violate the Second Amendment.

      In other words, does the Second Amendment restrict state and local governements? This would have no bearing on federal laws and their Constitutionality.

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