Back in November of 07, I had a five part series over the history and interpretation, and of the 2nd Amendment by the courts. This was before the DC v Heller ruling.
Part 1 was an overview and a preview of DC v Heller (Then Parker v DC)
Part 2 was a focus on the original intent of the founding fathers.
Part 3 focused on the pre-Miller cases
Part 4 focused on the Miller case
Part 5 was a preview of DC v Heller
Those were written before the ruling on Heller. Other related posts I've had on Heller are these.
My comments on Heller
That leads to the current issue. Incorporation. The 2nd Circuit, led by now SCOTUS Justice Sonia Sotomayor ruled against it. The 9th circuit of all places, supports it under a due process claim. The 7th Circuit upheld the ban, setting up this case to be a SCOTUS showdown. The general history of incorporation is through "substantive due process" or "equal protection." The Privileges and Immunities clause is almost never used.
Soon, the Chicago Gun Case is being heard by SCOTUS. You can find all the background, the filings, and opinions at the Chicago Gun Case website run by the Second Amendment Foundation and Gura and Possessky law firm. Alan Gura was the attorney for Heller and he is back again for the McDonald case.
This case is similar to Heller in that it is a gun ban case regarding the 2nd Amendment. However, Heller was fighting federal law. McDonald is fighting a local ordinance which is a whole different matter. The precedent is long and bad going back to the post-reconstruction days following the Civil War.
After the Civil War, there were three constitutional amendments known as the Reconstruction Amendments. They were the 13th, 14th, and 15th Amendments. The 13th eliminated slavery (the Emancipation Proclamation only eliminated it in Confederate States). The 15th addressed voting rights. The 14th Amendment is at issue in the McDonald case and reads as follows.
|'''Section 1.''' All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.
'''Section 2.''' Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
'''Section 3.''' No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
'''Section 4.''' The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
The two provisions are at the heart of this case. Due Process is the backup plan and the conventional argument. The home run argument is Privileges and Immunities. McDonald is going for the home run, as seen in his brief. This is a real ballsy brief to say the least. It is 91 pages and most of it is attacking 136 years of bad precedence going back to the infamous Slaughter-House cases. Much less of it addresses substantive due process, which is the more conventional argument these days.
One of the most universally condemned SCOTUS decisions was the Slaughter-House cases. Most conservative and liberal legal academics alike agree that it was a poor decision. Slaughter-House was an 1873 decision that gutted much of the 14th Amendment. Most of the case was not related to civil rights or even argued. However, the court went beyond what was expected of a case dealing with a New Orleans butcher industry. In the words of Justice Miller
In the case of Paul v. Virginia,24 the court, in expounding this clause of the Constitution, says that 'the privileges and immunities secured to citizens of each State in the several States, by the provision in question, are those privileges and immunities which are common to the citizens in the latter [83 U.S. 36, 77] States under their constitution and laws by virtue of their being citizens.'
The constitutional provision there alluded to did not create those rights, which it called privileges and immunities of citizens of the States. It threw around them in that clause no security for the citizen of the State in which they were claimed or exercised. Nor did it profess to control the power of the State governments over the rights of its own citizens.
Its sole purpose was to declare to the several States, that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.
In short, according to Slaughter-house, which has not been completely overturned, states can take away rights because a state citizen is different than a US citizen. The Slaughter-House line of cases lead to the Cruikshank and Presser cases which said that the Second Amendment applies only to the federal government.
From Cruikshank, Justice Waite writing the opinion:
We have in our political system a government of the United States and a government of each of the several States. Each one of these governments is distinct from the others, and each has citizens of its own who owe it allegiance and whose rights, within its jurisdiction, it must protect. The same person may be at the same time a citizen of the United States and a citizen of a State, but his rights of citizenship under one of these governments will be different from those he has under the other. Slaughter-House Cases, 16 Wall. 74.
And Cruikshank (1876) comes from Slaughter-House. It gets worse, much worse.
The first amendment to the Constitution prohibits Congress from abridging "the right of the people to assemble and to petition the government for a redress of grievances." This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National Government alone.
You read that right. The fist amendment protections are limited to the national government alone. "Bullshit," you say. Today, this is no longer the case, but that was the case in 1876. That is their view of the Bill of Rights. The same reasoning they used in the first amendment, applied to the second Amendment. That reasoning for the second amendment is still in affect today, and one of the favorite talking points among the left today. If you love Cruikshank, you better love all of it. I don't like any of it. Checks and balances in favor of freedom are good for our country.
More from Justice Waite and the Court:
The second and tenth counts are equally defective. The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the "powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police," "not surrendered or restrained" by the Constitution of the United States.
The Fourteenth Amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not, any more than the one which precedes it, and which we have just considered, add anything to the rights which one citizen has under the Constitution against another. The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the States, and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty.
Presser (1886) reaffirmed Cruikshank. Presser can be read here. The opinion was written by Justice Woods. It was still the Waite Court in that period. It repeats Cruikshank when it comes to the 2nd Amendment. The last case SCOTUS addressed regarding the 2nd Amendment and state laws is Miller v Texas, which did not raise a 14th Amendment objection. Bad move. They followed Cruikshank, and added this.
And if the Fourteenth Amendment limited the power of the states as to such rights, as pertaining to citizens of the United States, we think it was fatal to this claim that it was not set up in the trial court. In Spies v. Illinois, 123 U. S. 131, 123 U. S. 180, objection was made that a certain letter was obtained from the defendant by an unlawful seizure, and the constitutional immunity was set up in the Supreme Court of Illinois, as well as in this Court, but it was not made on the trial in the court of original jurisdiction. It was held, both by the Supreme Court of Illinois and by this Court, that the defense should have proven that the letter was unlawfully seized by the police, and should then have opposed its admission upon the ground that it was obtained by such unlawful seizure. Said the Chief Justice:
"As the supreme court of the state was reviewing the decision of the trial court, it must appear that the claim was made in that court, because the supreme court was only authorized to review the judgment for errors committed there, and we can do no more. . . . If the right was not set up or claimed in the proper court below, the judgment of the highest court of the state in the action is conclusive, so far as the right of reviews here is concerned."
That is the binding precedence when it comes to the Second Amendment and state/local laws, at least until now. Presser, Cruikshank and Slaughter-House can be knocked out. McDonald is attempting to do just that, starting with Chicago.
The McDonald brief reads much like a history thesis, reintroducing John Bingham's thoughts who was the author of the first clause of the 14th Amendment. Much of the brief centers around the Northern originalist though in that period. John Bingham, Jacob Howard (Reconstruction Committee) and Thaddeus Stevens. It was understood and mentioned specifically by Stevens, that the Privileges and Immunities in the 14th Amendment referred to the Bill of Rights in the US Constitution. Obviously that includes the Right to Keep and Bear Arms. The Connecticutt Governor in 1866 was complaining of guess what...gun grabbing. Page 57 of the PDF file. - http://www.chicagoguncase.com/wp-content/uploads/2009/12/08-1521ts.pdf
McDonald asks the court specifically to overturn Slaughter-House, Cruikshank, and Presser. Charles Black (involved in Brown v Board of Education), who wrote "A New Birth of Freedom" (One of my textbooks I had to read) was cited in this brief. He stated that Slaugher-House was "probably the worst holding, in its effect on human rights, ever uttered by the Supreme Court." I'd argue Dred Scott, but Slaughter-House is a close second. Most scholars would probably cite Plessy v Ferguson in 1896, but I doubt that would be around if it wasn't for Slaughter-House and its cousin, the "civil rights cases" of 1883.
This brief also argues for relief under substantive due process, but that's not the significant home run attempt here.
ChicagoGunCase.com has all of the filings on their site, including the Amici Curiae of interest groups and others.
The NRA brief argued more strongly for due process, but did mention Privileges and Immunities as an alternative.
The Cato Institute attacked Slaughter-House.
The liberal Constitutional Accountability Center supports McDonald as well in a quite strong brief.
The Conservative Center for Constitutional Jurisprudence (Ed Meese) also had a supportive brief for McDonald on Privileges and Immunity grounds.
The libertarian Institute for Justice agreed with both the liberals and the conservatives.
37 States including Michigan signed a brief supporting McDonald. Thank you Mike Cox. Members of Congress also signed a support brief. Levin and Stabenow did not sign this. What a shocker. However, Dave Camp, John Dingell, Pete Hoekstra, Thad McCotter, Candice Miller, Gary Peters (That shocks me with his State Senate record), Mike Rogers, Mark Schauer (another shocker), and Bart Stupak all signed it. Only Vern Ehlers, John Conyers, Sander Levin, and Carolyn Kilpatrick did not among out house reps. Those were mostly on due process arguments. A state legislature brief was filed. Some Michigan state reps signed on board that brief. Brian Calley, Kevin Elsenheimer, Rick Jones, Mike Lahti, Richard LeBlanc, Matt Lori, Andy Neumann, Paul Opsommer, Randy Richardville, and Joel Sheltrown all signed their names to supporting McDonald.
Others supporting McDonald are think tanks from all over the spectrum, law enforcement groups (public policy grounds), several professors, and some prosecutors.
The anti-gun Brady Campaign and anti-gun NAACP filed briefs in support of neither party. Brady is pushing for "rational basis" review instead of the proper strict scrutiny standard in protecting fundamental rights. The NAACP brief does not want Slaughter-House addressed in this case and focused on public policy reasons to implicitly support the ban.
There is some controversy with the attempt to take out Slaughter-House, even among libertarians. Some interesting commentary at Reason Magazine, as well as by Professors Olin Kerr and Randy Barnett at Professor Volokh's blog.
As someone who is not all that fond of substantive due process (neither Lochner nor the abortion cases) I happen to support Alan Gura and McDonald's gutsy move. The Privileges and Immunities clause has been neglected since the Slaughter-House line of cases. It needs to be overturned. Without Slaughter-House, there is no Cruikshank or Presser, which was worse. There might not even have been Plessy if it wasn't for Slaughter-House. I am mostly textualist in my interpretations, and originalist when there is any ambiguity. The 2nd Amendment is clear. The 14th Amendment is even clearer. The intent is clear and open for all to read. It's time that the Bill of Rights - ALL of them, are officially incorporated through the 14th Amendment's Privileges and Immunities clause. This is about the Bill of Rights, no more, no less.