SCOTUS asked to review new Second Amendment case

[Tilted]

Originally Posted by Pushrod

Thanks for the update. New court decisions under Heller are already coming in. See the News forum about the N.J. Handgun decision.

Yeah, I read a report on it, but the report didn't completely comport with the text of the order given by the court. I wanted to follow up to make sure the text that I saw (that purported to be the court order) was in fact the whole thing. I just haven't gotten around to it yet.

There's little doubt that the courts are going to be flooded with challenges, especially if (and after) the Justices clarify the state applicability issue. In that commentary I linked, the author quoted a judge from the Fourth Circuit Court of Appeals as saying that the influx of cases "threaten to suck the courts into a quagmire." He may have been dropping a hint to the Supreme Court - 'hey, help us out over here and give us a little more guidance, would you?'.

[EmptyTimCup]

Originally Posted by Tilted

On the other hand, in the Slaughterhouse Cases (1873) ruling, which pre-dated this incorporation doctrine, the Supreme Court effectively castrated the Privileges or Immunities Clause. For the most part, it has remained legally inconsequential ever since. Though people often refer to it notionally in casual conversations about rights, the reality is that, for most practical purposes, it died as an infant (the 14th Amendment was adopted in 1868).

would it be to much to ask for a synopsis ?

[Tilted]

Originally Posted by EmptyTimCup

would it be to much to ask for a synopsis ?

I guess you mean a synopsis of the Slaughterhouse Cases?

At the time, animal slaughtering operations - especially ones in and around population centers - created significant health risks for the community (e.g. from animal remains getting into water systems, from attracting insects). Some areas passed laws designed to help reduce those risks. One way of doing this was by designating centralized slaughterhouses, and requiring that all butchers in a given area do their work there. Louisiana passed just such a law. Many butchers felt that the way the centralized slaughterhouses were selected was unfair (being one of the incorporated slaughterhouses meant you got to collect fees for using your facility, and you made more money). Butchers were now required to pay fees to a particular entity and do their slaughtering in a particular place. Numerous unsuccessful suits were filed in state courts. Then, someone got the idea to challenge the law federally - based on the newly adopted Fourteenth Amendment - and they appealed to the U.S. Supreme Court to do so.

They argued that the law violated their basic right to labor freely - that the law essentially established a monopoly and hindered their ability to ply their trade. The Privileges or Immunities Clause of the Fourteenth Amendment reads thusly, 'No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States'. Pursuant to that clause, the butchers argued that their rights were being violated by the state of Louisiana (a legal claim that would have been foreclosed, for all practical purposes, before the Fourteenth Amendment, as the Bill of Rights was only applicable to federal laws). The real underlying question here was whether the Fourteenth Amendment had just been meant to protect the rights of newly freed slaves, or had been meant to expand the protections of rights for everyone (by protecting them against transgressions by their own states - those states having themselves been the traditional protectors of their citizens' rights).

Anyway, the Slaughterhouse Cases (so called because 3 technically separate cases had been combined before the Supreme Court) yielded a very controversial 5-4 decision, in which the majority interpreted the PoIC very narrowly. The high Court found that the 'citizens of the United States' language meant that the only privileges or immunities that were protected were those that arose specifically by virtue of citizenship in the nation - not the ones that arose by virtue of citizenship in the states. At that time, most rights were still associated with state citizenship. In accordance with the Supreme Court's ruling, the scope of rights that were protected by the PoIC was very limited - they included such things as certain maritime rights, certain rights to pursue federal offices (e.g. Representative, President), and the right to not be subject to bills of attainder or ex-post facto laws.

Speaking of the 13th, 14th and 15th Amendments, Justice Miller wrote in the majority opinion that

no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.

I quote the following long passage, also from Justice Miller's majority opinion, only to provide some insight into how much our attitudes have changed since then, with regard to the power that the federal government has, and should have, over the everyday lives of U.S. citizens - and how much our system has changed with regard to allocating such power between the states and the federal government.

Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?

All this and more must follow, if the proposition of the plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever in its discretion any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects. And still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. The argument we admit is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when in fact it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people; the argument has a force that is irresistible, in the absence of language which expresses such a purpose too clearly to admit of doubt.

We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.

As you might infer from the Court's comments - the notion that the the federal government (both its courts and Congress), as opposed to the states, would exercise vast control over our lives, was fairly foreign (and perhaps quite repugnant) to Americans during the late 1800's.

Now, the dissents in the Slaughterhouse Cases were quite strenuous. In the end, the legal importance of the Fourteenth Amendment, and its judicial interpretation, would follow more from the reasoning in those dissents than it would from the reasoning in the majority opinion. Eventually, the Fourteenth Amendment would serve to fundamentally alter the nature of the nation, the nature of the 'Republic'. That Amendment would go on to be one of the most, if not the most, oft-cited amendment(s) in litigation, it would dramatically change what it meant to be an 'American', it would rearrange the landscape on which future legal questions would be explored, it would become the legal gateway for the notion and effectuation of 'civil rights', and it would profoundly affect the lives of essentially every person that ever resided within the jurisdiction of the U.S. That said, the Slaughterhouse Ruling delayed the full force of its impact. Furthermore, it meant that its full force would only be legally realized through the Due Process and Equal Protection Clauses - not through the Privileges or Immunities Clause, which some might have thought likely to have become the heavy lifter of the trio. Effectively, the Privileges or Immunities Clause was dead on arrival - in a manner of speaking, almost still born.

Just to add my personal opinion with regard to the propriety of the Slaughterhouse Ruling - I tend to think that the majority got it wrong. To the extent that some might believe that we'd have been better off functioning more as a 'Republic', where the power of the federal government remained more limited, I believe it is the Fourteenth Amendment itself, and not subsequent 'activist' interpretations thereof, which shoulders the burden of having caused the changes. Those later interpretations (i.e. ones that had effects that were quite contrary to the effect of the Slaughterhouse Ruling) were probably 'right', to the extent that it is the job of the Supreme Court merely to interpret the will behind the Constitutional mandates.

[Pushrod]

Excellent explaination Tilted!
Although I tend to agree with what Justice Miller was trying to express, that the Federal Government does not (or should not) have a lawful privelege to enforce any laws governing inherent rights onto the states.
It should be the states that protect our inherent rights without question.

Unfortunately that is a scenerio for a perfect world, which we do not live anywhere near. Many states have, and continue to tread heavily on many inherent rights, instead of doing all in their power to protect them.

So maybe this is where the Federal Government should step up and dictate to the states that they need to allow and protect inherenet Rights, or their will be consequences. What those consequences are, I cannot completely fathom. Maybe financial (withholding funds seems to be common). I don't believe we should be giving the Feds too big of a whip over the States, as that is not how this Republic was ever meant to be.

A very sticky situation indeed, one that I can see the viewpoint from both sides.

[Tilted]

The Supreme Court has released the oral arguments schedule for January, and McDonald is not on it. I'm guessing it will be argued in March.

[Tilted]

Originally Posted by Pushrod

Excellent explaination Tilted!
Although I tend to agree with what Justice Miller was trying to express, that the Federal Government does not (or should not) have a lawful privelege to enforce any laws governing inherent rights onto the states.
It should be the states that protect our inherent rights without question.

I agree with you about Justice Miller's take - he was right about how it should be. The reason I think the decision was probably wrong is because the words of the Fourteenth Amendment changed the rules. So, though I would agree with how he supposed things should be, the Court's job was just to interpret what the Fourteenth Amendment meant - and in that regard, I tend to think the majority got it wrong in Slaughterhouse.

Originally Posted by Pushrod

Unfortunately that is a scenerio for a perfect world, which we do not live anywhere near. Many states have, and continue to tread heavily on many inherent rights, instead of doing all in their power to protect them.

So maybe this is where the Federal Government should step up and dictate to the states that they need to allow and protect inherenet Rights, or their will be consequences. What those consequences are, I cannot completely fathom. Maybe financial (withholding funds seems to be common). I don't believe we should be giving the Feds too big of a whip over the States, as that is not how this Republic was ever meant to be.

A very sticky situation indeed, one that I can see the viewpoint from both sides.

Yep. As it is now, I think all of the protections should be effective against the states and local governments. Things have changed dramatically, particularly as a consequence of the Fourteenth Amendment. We have given the federal government the role of protecting most civil rights, such that states have abdicated their role, in that regard, to some extent. So, we need to close the few remaining holes in the Fourteenth Amendment's incorporation of the Bill of Rights (extended).

[Tilted]

Originally Posted by Tilted

I've been reading some commentary on this case, and some of it suggests a possibility that is quite interesting - that the Supreme Court may choose to extend Second Amendment applicability to state and local laws through the Privileges or Immunities Clause of the 14th Amendment, rather than through the Due Process Clause.

http://www.scotusblog.com/wp/wp-cont...ici_profs1.pdf

This is an amici curiae brief filed with the Court before it decided to grant cert. I think it makes a pretty compelling case that the Court should do just what I was referring to above (and which I remain doubtful that it will do) - overrule Slaughterhouse and revive the PoIC. It seems a no brain-er that it should, but the high Court is generally loathe to unnecessarily directly overrule its own precedents.

It would certainly be an interesting outcome for this case, and open up an entirely new avenue through which one might seek rights protections - a new avenue that hasn't been defined, meaningfully explored, or limited before. Now, the process of defining it may well follow closely from how the due process avenue has been defined - but you just never know. Having a fairly clean slate to work with, it could develop into an entirely different animal. That could have broad and deep ramifications.

Oral arguments in this case could be interesting and could provide some insight into the Court's willingness to start down that avenue.

[Tilted]

People seem to be serious about this idea that the Court will actually consider the Privileges or Immunites Clause issue, and entertain overruling Slaughterhouse, finally - thereby 'cleaning up' the interpretation of the Fourteenth Amendment some. I think I'm even starting to believe it may happen. This is pretty cool - these days, we don't often get Supreme Court considerations that are this fundamental with regard to what the Constitution means.

Georgetown Law Center is apparently hosting a program/panel discussion on this very issue this coming Friday. Included among the panelist will be Alan Gura, the attorney who successfully argued Heller and who will (hopefully) argue McDonald sometime next year. I'm tempted to go, but I have an allergy to cities.

Georgetown Law - A Vain and Idle Enactment (Communications)

[Tilted]

The Petitioners in McDonald v City of Chicago filed their merits brief on Monday. I've only read about half of it thus far.

They are really making a hard push for incorporation through privileges and immunities. They are clearly looking to have this case take on an even broader, more fundamental, meaning. I'm coming around on the idea that it could happen - maybe it is time to 'un-Slaughter' (I stole that term) the Fourteenth Amendment.

Even without privileges and immunities in play, this case would pose an unusually fundamental Constitutional question - more fundamental than the average case that gets heard by the high Court these days. If the Court were to overrule Slaughterhouse, and re-birth the PoIC, then this case would take on even more fundamental nature - an interpretation of what the words of the Constitution (and a hugely important part, the Fourteenth Amendment) mean, that is so basic as to be rarely seen in the 21st century, and dare I say, even in the 20th. I'll go so far as to say this, though the eventual importance of the ruling might go on to have more understated practical effects, I think it would represent the most fundamental interpretation of Constitutional meaning that I have witnessed in my lifetime. I'm guessing no one else cares, but I think it is pretty cool.

[Tilted]

The NRA has also filed a brief in support of petitioners.