The website for all the Chicago case filings is here. For 19th century history, Stephen Halbrook is by far the most important scholar. His articles include: The Freedmen’s Bureau Act and the Conundrum Over Whether the Fourteenth Amendment Incorporates the Second Amendment, Northern Kentucky Law Review (2002); Personal Security, Personal Liberty, and The Constitutional Right to Bear Arms: Visions of the Framers of the Fourteenth Amendment, Seton Hall Constitutional Journal (1995); The Right of Workers to Assemble and to Bear Arms: Presser v. Illinois, One of the Last Holdouts Against Application of the Bill of Rights to the States, University of Detroit Mercy Law Review (1999); and (co-authored with Cynthia Leonardatos and me), Miller versus Texas: Plice Violence, Race Relations, Capital Punishment, and Gun-Toting in Texas in the Nineteenth Century–and Today, Journal of Law and Policy (2001).
The lead attorney in the Supreme Court case of McDonald v. Chicago is Alan Gura. He did an excellent job in District of Columbia v. Heller, so the new case is in very good hands.
Instapundit » Blog Archive » SECOND AMENDMENT UPDATE: Supreme Court grants cert. in Chicago case. “It chose one of the Chicago … says:
[...] SECOND AMENDMENT UPDATE: Supreme Court grants cert. in Chicago case. “It chose one of the Chicago cases — McDonald v. Chicago (08–1521) — a case brought to it by Alan Gura, the Alexandria, VA. lawyer who won the 2008 decision for the first time recognizing a constitutional right to have a gun for personal use, at least in self-defense in the home (District of Columbia v. Heller).” Interestingly, they’re asking about Privileges And Immunities, too. Some background here. [...]
Chris says:
So, does Gura think the 14A incorporates the 2A solely in virtue of the meaning of the terms of the 14A, or is it partly in virtue of the place of self-defense rights in the American tradition?
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September 30, 2009, 8:48 amSean says:
Thanks for the pointer, but your links seem to be broken.
[DK: Thanks. I just fixed them. It seems that one cannot cut and paste a text with embedded links into WordPress.]
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September 30, 2009, 8:52 amIK says:
So with the same 5 from the Heller case, and the same issue before them (a government body preventing citizens from owning handguns), and having already decided before than the 2nd Amendment prevents such laws, are Chicago’s gun ban laws a snowball in hell?
One can certainly hope so. With its teens killing each other by with rocks and sticks, surely Chicago has better things to focus its law enforcement efforts that if someone who passes a background check can own a gun in their own home.
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September 30, 2009, 9:20 amJPSappclerk says:
This should be an exceedingly interesting case because judicial conservatives have traditionally loathed the incorporation doctrine. Thus, rather than engaging in maladroit arguments as to whether the right to bear arms is a fundamental right, a more consistent approach might be to argue that the slaughterhouse cases should be overturned and that the right to bear arms should be viewed as a privilege and immunity granted to citizens of the United States. That would be more aggressive than CJ Roberts prefers as a judicial minimalist, but it would be the most intellectually honest means for a judicial conservative to hold that the 2nd Amendment applies to the states. Either way, I am cautiously optimistic that Heller portends another victory for lawfully armed citizens here.
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September 30, 2009, 9:36 amJohn Burgess says:
If you’re using Firefox, the plug-in “Copy to HTML” Ver. 2 works very nicely to copy text with the URL of the page. I use it mostly for headlines in my own WP blog.
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September 30, 2009, 9:38 amPeter says:
I read the law review articles cited in the appellant’s brief for the proposition that the 14th am was popularly understood as extending the bill of rts to the sts. They cite the fact that speeches of howard and bingham claiming the 14th extending the bill of rts to the sts were published in newspapers.
Balance that against the fact that the newspaper reports of speeches favoring ratification by men such as Trumbull claimed only that the amendment would constitutionalize the civil rts act of 66. also balance it against the fact that critics of the 14th am came up with all sorts of charges regarding the amendment, ie that it would extend the rt to vote to blacks or promote miscegination. yet they did not argue that it would extend the bill of rts to the sts.
in sum it really isnt even a close question. the public debate over ratification in the states featured almost no claims that it would extend the bill of rts to the sts. if popular understanding is critical to originalism, there is no way an originalist can claim the 2d amendment or any other portion of the bill of rts applies to the states.
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September 30, 2009, 10:05 amthecabbage says:
I hope Gura wins and gets a fee award from the city. I’d much rather see my parking ticket dollars go to him than to Daley’s buddies.
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September 30, 2009, 10:17 amOren says:
The flip side is that there is no way that the modern incorporation doctrine born of the post-Warren era can be read to exclude incorporation of the 2A.
I’m looking forward to the fireworks.
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September 30, 2009, 10:18 amADF Alliance Alert » Background reading for Supreme Court’s new 14th/2d Amendment case says:
[...] Kopel reports at The Volokh Conspiracy: “The website for all the Chicago case filings is here. For 19th century history, Stephen [...]
Escapee says:
You’re looking at it backward, Peter. The Fourteenth franchised a new class of federal citizen, who if “resident” in the states is to be accorded the privilieges and immunities of the state citizen. The Citizen of the state is already protected by their state’s constitution.
It is unfortunate that most Americans believe that they are of this corporate class of “citizenship”. These “persons” have no claim to primary state Citizenship nor to the limitations on the federal government clearly spelled out in the Constitution and its first ten Amendments.
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September 30, 2009, 10:32 amLior says:
Note that the grant includes the question of incorporation under the Privileges or Immunities Clause in addition to the Due Process Clause. I’m looking forward to these fireworks.
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September 30, 2009, 11:10 amCarl from Chicago says:
If I was Steve Halbrook ... I’d be feeling a wee bit snubbed right now. Would I be justified in feeling that way?
Why on earth would they have granted McDonald and not NRA? Was it because McDonald was the most developed regarding P or I clause?
I am actually pretty happy they granted only McDonald. I think this will allow the court to more narrowly rule ... and allow petitioners a more lucid and directed argument (not muddled by another legal team and their priorities).
Now ... on rights incorporated via due process ... are they necessarily fundamental, and necessarily subject to strict scrutiny? I could see a 9–0 vote for incorporation, but could also see four justices also saying that Chicago’s ban doesn’t violate the second amendment.
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September 30, 2009, 11:18 amGeneral Disarray says:
Peter, you ought to read Dave Hardy’s (relatively) new article, Original Popular Understanding of the 14th Amendment as Reflected in the Print Media of 1866–68. He provides some evidence that seems to directly contradict your position.
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September 30, 2009, 11:28 amSupreme Court Grants Cert. In Important Second Amendment Case | DailyWrit says:
[...] and David Kopel has an intersting collection of background reading available on Volokh Conspiracy here. Notably, well-regarded conservative judges Frank Easterbrok and Richard Posner both ruled against [...]
DjDiverDan says:
As a poster above pointed out:
However, Judicial conservatives have also been much more willing to embrace original understanding textualism. The conservatives can kill two birds with one stone here by closing down the “selective incorporation” jurisprudence under the 14th Amendment’s Due Process Clause, while returning the Privileges or Immunities Clause to its original intent — that it was intended and understood to make all of the Bill of Rights, including the 2nd Amendment, applicable to the States. What the Court won’t need to reach here is whether or not the Privileges or Immunities Clause sweeps up with it the unenumerated rights reserved in the 9th Amendment — maybe in some later case the Judicial Liberals can use that (i.e., the 9th Amendment, incorporated through the Privileges or Immunities Clause of the 14th Amendment) to finally (and at long last) put at least some patina of textual support to the Court-created rights of Privacy, including the abortion cases. So there’s really something here for everyone if those in favor of incorporation sell it.
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September 30, 2009, 11:59 amPeter says:
General Disarray:
I did read that article. In addition to citing the comments of the two congressmen, he cites, as I recall, a single NY Times, a single NY Herald article and one letter. I believe the article ends up arguing that since the country was slient in the face of the statements of HOward and Bingham, it necessarily consented to incorp of the bill of rts. Silence equals consent, says the author. I say silence indicates lawmakers failed to communicate their understanding to the public. Surely someone, somewhere would have protested. In addition, I believe there is a refutation by a professor at the end of the article that does a pretty effective job of explaining that three or four articles and a letter do not constitute adequate evidence for the proposition that the states knew they were subjecting themselves to the 14th amendment.
Better yet–go to JSTOR. Pull up the newspaper archives for NY Times, Boston Globe, Chicago Tribune (there may be others) for 1866–68. Do a search for the bill of rights for the 1866–68 period (or bill of rights/ratification if you prefer) and see what you get. I’ve done it–you get nothing, or very close to it.
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September 30, 2009, 12:02 pmSkyler says:
Can someone give a thumbnail sketch on the significance of the privileges and immunities clause regarding the second amendment? People seem to react to that strongly here and elsewhere but I’m not clear as to why.
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September 30, 2009, 12:24 pmGrey says:
I’ve always been curious about the attitude of the “2nd Amendment crowd” (if I may) toward such questions. Post–Heller, there was a real “We did it!” euphoria; indeed, I remember many Conspirators waxing poetic, reflecting on the fact that there’s been a real movement making this a cause celebre in law journals and other publications over the past couple of decades.
That always struck me as a bit odd, and perhaps a bit scary. Do we think it’s OK for a dedicated group of people coming from a similar ideological viewpoint to “win” an issue by concerted effort and sheer volume of scholarship?
This is a non-partisan point, I hope you understand. I think it would fail many people’s shoe-on-the-other-foot tests, so I’m interested to see how many might rationalize their views on it.
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September 30, 2009, 1:02 pmPaperNuncio says:
Yes. The problem with your statement is “similar ideological viewpoint” though. Tribe and other liberal legal scholars and historians came together on the issue before Heller with people on the more “conservative” side, if you will. Tribe did seem to do some strange mental gymnastics during the Heller briefs, but besides that, there seemed to be a broad plurality of people behind Heller. So, when a multi– or at least bipartisan group of people come to strong conclusions and show that the legal history, American history, and social science really support the conclusion, then I would ask Grey why that’s a bad thing?
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September 30, 2009, 1:18 pmSkyler says:
Yes, it’s a good thing when reason prevails over poor scholarship and an agenda of removing historic rights. Right is right, so there really is no “other foot” for the shoe.
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September 30, 2009, 1:19 pmRKV says:
Escapee –Would this new class of citizen (“The Fourteenth franchised a new class of federal citizen”) be the same class of citizen who had to get a Federal passport, long prior to the passage of the 14th Amendment? The State Department issued something more than 130,000 passports prior to 1873 (approximating the period from founding to the passage of the 14th). So those 130,000 American citizens were not just citizens of a state, were they?
Grey — You seem disingenuous or a best confused. “Win” in this case, means that courts will enforce the plain meaning of the text of the Constitution as amended. This is not about ideology, rather, it’s about whether an explicitly stated individual Constitutional right can be ignored by the judiciary or not. That’s a pretty important thing, and your reference to “shoe-on-the-other-foot” seems anything but “non-partisan.” For my part, I’d suggest we have the benefit of the whole Constitution, all the time.
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September 30, 2009, 1:25 pmBT says:
Hey cabbage, maybe if Gura wins Daley will just cut him in on some Olympics loot!!!!
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September 30, 2009, 2:20 pmOren says:
That’s a good joke, or at least it would be if it didn’t concern the laughable state of protection afforded to our inalienable rights by the utter jokes that occupy the highest Courts of the Various States.
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September 30, 2009, 2:34 pmEscapee says:
Following the War for Independence and the Treaty of Paris, the American states were sovereign countries with the right to conduct commerce with the other countries of the world; and the people were citizens of those individual states.
The power to represent the states internationally was subsequently delegated to the newly-formed Union with the ratification of the Constitution. See the Preamble and Article 1.
Prior to the Fourteenth Amendment, citizenship in the federal United States was through state citizenship or through naturalization. Or do you know of another way RKV?
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September 30, 2009, 3:34 pmRKV says:
“Prior to the Fourteenth Amendment, citizenship in the federal United States was through state citizenship or through naturalization. Or do you know of another way RKV?”
Indeed I do Escapee. Because I happen to know my American History and you apparently do not. You may recall that there was another part of the United States during the pre-14th Amendment era. Every heard of “territories?” If a person was born in a federal territory (Northwest Territory, Dakota Territory, etc.) they could not be a citizen of a state, could they, and yet, they were in fact, American citizens? You are really making this too easy. When you find yourself in the fever swamps its time to leave. And you’re there.
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September 30, 2009, 6:42 pmwlpeak says:
Hmm, not to endorse Escapee’s position, but I seem to recall people thinking anyone who held the 2nd to describe an individual right must also reside in a similar bog.
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September 30, 2009, 9:31 pmr says:
Excuse me, Orem,
Uh, re originalism vs incorporation of any sort. See Article 6 section 2 of The Constitution. The Constution is the supreme law of the land period, end of sentence. Zero wiggle room. Want to change it?
See article 5.
Barron was a bigger screwup than Slaugherhouse cases, Cruicshanks(sp) and the one Bardwell ?bradwell? I can’t find now where they said in effect women were not persons under the 14th ammendment.
Article 6 section 2
quoted:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Oren says:
if popular understanding is critical to originalism, there is no way an originalist can claim the 2d amendment or any other portion of the bill of rts applies to the st
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September 30, 2009, 9:37 pmEscapee says:
Thank you for reinforcing my point RKV, there are two citizenships; state and U.S.
I don’t think you would disagree that those “citizens” of the federal territories (including the District of Columbia) have been enfranchised as “citizens of the U.S.” and “residents” of the states by the Fourteenth, would you?
We’ll just ignore the other 99.99/100% of the citizenry. A package of government cheese or two, some adhesion contracts and shazam! that is all forgotten.
And while may be a very popular phrase, there is no such thing as an “American citizen”, Mr. History Expert. The people from Mexico to Chile would object to you using that term (and a few Canadians too, though probably not enough to screw in a light bulb).
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September 30, 2009, 9:59 pmEscapee says:
The answer is so simple! It’s not an individual right. It’s a prohibition on the federal government.
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September 30, 2009, 10:06 pmThursday round-up | SCOTUSblog says:
[...] http://sentencing.typepad.com/sentencing_law_and_policy/2009/09/what-is-the-best-argument-that-heller-should-only-impact-the-feds-will-it-get-any-votes.html http://volokh.com/2009/09/30/background-reading-for-supreme-courts-new-14th2d-amendment-case/ [...]
SayUncle » Chicago Gun Case Round Up says:
[...] David Kopel provides some background reading. [...]
Jon Roland says:
All constitutional rights are immunities from official action, and may be equivalently expressed as either a restriction on a delegated power or as a declaration of the right. The space of public action is partitioned into powers or rights, each of which is a restriction on the other. One has an individual right to do anything the government does not have the delegated power to restrict.
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October 1, 2009, 7:25 amMcDonald v. City of Chicago, 08-1521 « ricketyclick says:
[...] This Volokh Conspiracy post is a goldmine of links to background reading. This is my weekend, folks. [...]
Kharn says:
Skyler:
Dred Scott:
14th Amendment:
The 14th Amendment was written to directly address the wording used in Dred Scott that said blacks were not equally entitled to the same rights as whites.
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October 1, 2009, 7:42 amDonald Kilmer says:
Since this thread is about background reading on Second and Fourteenth Amendment and judicial approach to these rights, you all might find Alan Gura’s article of some value. It is in the recent issue of UCLA Law Review. Heller and The Triumph of Originalist Judicial Engagement: A Response to Judge Harvie Wilkinson.
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October 1, 2009, 8:11 amW.Richards says:
Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.
Is how the Illinois state constitution reflects the 2nd amendment. The Subject to police power clause was installed in 1968. Remember what civil unrest was going on in the late 60’s. A very slick move by Mayor Daley Sr. at the time.
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October 1, 2009, 10:02 amJarhead1982 says:
So the 14th amendment only addresses those inequities foisted upon the blacks, hmmmmmm, not those rights already affirmed in the bill of rights.
Yet several here claim that it creates a new “franchise” of citizen, hmmmm. There is nothing in the US Constitution or state constitution that defines a differentiation of state versus country citizenship nor any differentiation in rights between either.(reference section 1)
The employees of the federal government are from each state or territory, hence they are already citizens under their own states consitutions.
As mentioned earlier in the blog districts and territories still convey the rights of citizenship within those entities.
The US Constitution conveys US citizenship upon all states who once chartered to become a state in this union, did so agreeing to the be a state under the documentation, rules and laws governing such membership (e.g. the US Constitution).
So the circular reference I am having trouble understanding is how, since all federal employees are citizens of their individual states, territorial entities, and the union (e.g. United Staes of America) without established differentiation in rights, how then the 2nd A only applies only to those citizens when they work for the federal government?
Text of the 14th amendment
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.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
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October 1, 2009, 10:17 amGrey says:
“Agenda” is a good word. You guys are claiming the pro-2nd crowd doesn’t have an agenda, which is pretty amazing. Pretty much everybody has an agenda. Red flag for being disingenuous.
You don’t think that most who were on the gun-rights side of Heller believe in expanding gun rights? Oppose Brady? You think they just woke up one day and said “By Jove, we need a clarify a point of law that I’m not personally interested in!” Right.
Guys who agree with you are enforcing the ‘plain meaning.’ Others are ‘biased.’ Yes, you can sense my skepticism when this is how people frame ANY legal discussion.
But mine is still a non-partisan point. If a group of legal scholars make a multi-decade effort to change or push law in a certain area, we’re OK with that? Regardless?
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October 1, 2009, 10:19 amWendy Weinbaum says:
As a Jewess in the US, I have to tell you: If you added together everyone killed by the AK-47 and its imitators since their production began, the number of victims is LESS than the number of babies killed in the USA in the first 10 years of legalized abortion!
Having noted that fact, the AK is still an excellent tool, and is one more reason why all REAL Americans must put our 2nd Amendment FIRST!!
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October 1, 2009, 10:32 amKharn says:
Jarhead1982:
No, the inequities and civil rights violations caused the 14th to be written, but it was intended to protect the rights of all Americans.
Wendy:
What’s being Jewish have to do with statistics?
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October 1, 2009, 11:25 amarbitraryaardvark says:
In the Slaugherhouse cases a long time ago, the court said that the P+I clause doesn’t giver courts power over lockner-type economic regulation. The case has been understood to effectively read the P+I clause out of the constitution. I comes up occasionally in the context of a right to travel. I have a pending case where I argue P+I in the context of a right to vote in a federal election. Many scholars think slaughterhouse was wrong. The Institute of Justice was founded on the goal of reversing Slaughterhouse, and having 14th A review of economic liberties. The movement to restore the lost parts of the constitution, such as P+I, the 2nd A,the 9th A, and a more constrained view of the commerce clause, is sometimes called the constitution in exile movement,and there’s a long running debate on this blog about whether it even exists. McDonald v Chicago could be a landmark case not only applying the 2nd A nationally (but, currently, under a deferential standard of review), but also reviving the P+I clause. There might not be 5 votes for that part but at a minimum Justice Thomas’ opinion will make for interesting reading.
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October 1, 2009, 11:28 amPubliusFL says:
Grey: If a group of legal scholars make a multi-decade effort to change or push law in a certain area, we’re OK with that? Regardless?
Sure, why not? The courts should consider their arguments and evidence, and pay attention if they seem to be right. If they’re way off base they probably won’t get much traction.
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October 1, 2009, 11:59 amPaladin says:
The original text of the US Constitution contained language “incorporating” it entirely against the states. Simply read Article IV, Sections 1 and 2 and Section VI. You know phrases like, “The citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” And, “This Constitution,..., shall be the supreme law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.” And, “... all executive and judicial Officers, both of the United States and of the several States shall be bound by Oath or ....”
Plus, all the States were required to “ratify” the US Constitution. Why be required to ratify something if you’re NOT being required to comply with it?
The “Incorporation doctrine” is nothing more than legal BS promulgated by corrupt courts so they could rationalize the violation of both the US Constitution and their Oaths to uphold it as the “supreme law of the land.”
If SCOTUS rules against incorporation of the 2nd Amendment, it will have to go against all the other incorporation cases it has decided the last century or so. And, it will be prima facie evidence of Judicial Activism on the nation’s highest court.
And the Justice system has the power to punish citizens for “contempt of court”? My question is, “Just how the hell can any patriotic American have anything but contempt for our courts these days.”
It’s all a legal crock of crap! We need to cleanup the so-called Justice system while we’re at it.
It would be interesting to hear from some real legal eagles on this subject.
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October 1, 2009, 12:46 pmFederal Farmer says:
Does incorporation of a right somehow dilute that right? Are there exceptions to the States for the First Amendment that the Federal government cannot avail themselves of simply by dint of a difference between applying the right directly or via the 14th Amendment?
If they incorporate the 2nd Amendment, surely they cannot say that DC cannot do the same that that Chicago can?
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October 1, 2009, 1:37 pmFederal Farmer says:
Minor correction, it went into the Constitution of 1970. Daley Jr was a member of the convention.
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October 1, 2009, 1:43 pmEscapee says:
I think we disagree on whether the Bill of Rights is a, um, bill of rights. I maintain it is a list of prohibitions on the federal government that the People insisted be included before their states would ratify the U.S. Constitution.
We the People do not get our rights from the Constitution. The idea that rights originate from government came nearly one hundred years later during the forcible enfranchisement of a group of people who were not citizens. A regrettable situation that should have been solved in other ways.
Whenever someone speaks of “constitutional rights” I know that they are taking me directly to the fourteenth amendment. And as a state Citizen, I do not want to go there.
Good discussion. Hope I’m not making this the Escapee Show.
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October 1, 2009, 1:56 pmTim says:
If there’s any point to scholarship, it’s finding the truth. And having the most powerful Court in the world embrace one’s views, expressed in their scholarship, is perhaps the best that legal scholars have.
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October 1, 2009, 2:37 pmJon Roland says:
That is just another way of saying the same thing. You need to study in greater depth the concept of rights and how they may be defined. Start here.
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October 1, 2009, 3:04 pmDoes Privileges and Immunities Provide the Best Path to Incorporation? « Tim Nuccio’s Blog says:
[...] further reading on this issue, I suggest that everyone hit up Volokh, where you’ll find this list of links, all of which are relevant to the discussion at hand: [...]
Escapee says:
So where does this impression come up short?
First Amendment: Congress shall make no law...respecting...or prohibiting...or abridging...(list of pre-existing rights).
Second Amendment: ...the (pre-existing) right...shall not be infringed.
Third Amendment: (Another prohibition.)
Fourth Amendment: The (pre-existing) right of the people...shall not be violated,..
Etc.
Reading your linked article, I sense your confusion in applying the Fourteenth Amendment to rehash the original ten. That was not its purpose, not for the existing citizenry at least. The Fourteenth was intended to enfranchise a group that had no rights of state citizenship, not to inventory the rights that the state Citizen already possessed.
I suspect that you are not reading the Constitution at a sufficiently elementary level, especially the part of the Fourteenth that says “and subject to the jurisdiction thereof”.
State Citizens were never subject to the jurisdiction.
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October 1, 2009, 7:07 pmPubliusFL says:
Sure they were. Even before the 14th Amendment, citizens of the states were also citizens of the United States, and therefore subject to the jurisdiction of the United States to the extent of Congress’ delegated powers. Dur The “subject to the jurisdiction” bit of the 14th Amendment is to make it clear that someone born in the United States is not a U.S. citizen if they’re, say, the child of foreign diplomatic personnel, who are subjects/citizens of a foreign power and not subject to U.S. jurisdiction in any way. The debates over the 14th Amendment in Congress covered that point.
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October 2, 2009, 6:02 amEscapee says:
Yes, the citizens of the states were therefore citizens of the United States (I’d prefer to call them United States Citizens to differentiate them from the citizen of the United States of the 14th Amendment, but there is enough confusion of terminology to make either description accurate), and they were subject to the jurisdiction of the United States to the extent of Congress’ delegated powers. No argument there.
So, name me three enumerated powers, pre-14th, that reached out and touched the citizen of the state directly.
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October 2, 2009, 7:38 amJon Roland says:
You need to re-read my article and think about the concept of constitutional rights all being immunities that may be defined equivalently either as restrictions on powers or declarations, and that together they divide (partition) the space of public action. Every delegated power is a restriction on immunities, and every immunity a restriction on powers. There is no middle ground between them.
I am not confused. The conflict between the rights recognized in the Constitution and Bill of Rights, for which the 14th extended federal court jurisdiction to include for disputes between a citizen and his state, and state police powers, is the area of confusion. I regard such a broad delegation of powers to be unconstitutionally vague, and hold that state police powers need to be severely restricted to resolve the conflict. Statements made by supporters of the 14th make clear they did indeed intend a general expansion of federal court jurisdiction to such cases, and that is the only way to coherently read the words of the 14th.
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October 2, 2009, 7:53 amJon Roland says:
All of them.
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October 2, 2009, 7:58 amPubliusFL says:
Naturally, you’d need to bring in the “necessary and proper clause” to get there, but I think it’s done easily enough even with a reasonable originalist construction (I’m guessing I’d agree with you that it’s been stretched way too far over the years).
1. The power to provide for the punishment of counterfeiting the securities and current coin of the United States.
2. The power to provide for protection of copyrights and patents.
3. The power to call forth the militia under certain circumstances, and to govern “such part of them as may be employed in the service of the United States.”
Clearly the federal government “reaches out and touches” individual citizens in a lot of ways that the Founders never would have envisioned. But I think most of that has little to do with a change from “United States citizens” to “citizens of the United States” (“Citizen of the United States” is the phrase used in the original Constitution, incidentally). The biggest culprits have been the gross misinterpretations of the commerce clause and the taxation power that have come to predominate.
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October 2, 2009, 8:12 amJon Roland says:
The misinterpretation of the Necessary and Proper Clause has to be included. Some of the misinterpretation has consisted of adding things to “commerce” not intended by the Founders, such as primary extraction and manufacturing, but most of it has consisted of expanding the subjects of regulation to include things that “affect” commerce and therefore make difficult the obtaining of regulated outcomes. That is using the Necessary and Proper Clause, misinterpreting it and the power to “regulate” to be about getting certain kinds of results rather than only about making certain kinds of efforts. The key phrase is “carry into execution”, which is about efforts, not results.
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October 2, 2009, 9:46 amPubliusFL says:
Good point.
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October 2, 2009, 11:06 amEscapee says:
PubliusFL, I’m not going to allow the militia as an example because that was a function of the state, but I will add the post office’s mail delivery system to round out your set of three.
Point being that the the individual Citizen was not considered in the delegated powers of the Constitution. All municipal legislation was reserved to the states. I don’t believe the history or law can be read in any other way.
Sure, there were U.S. citizens which were not state citizens (though I’m not sure the opposite could be true), but this proves that there is a citizenship of the individual state, and a citizenship of the U.S. The latter is today the subject of the Fourteenth Amendment and the jurisdiction thereof.
We the People–the state Citizen–is not.
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October 2, 2009, 1:50 pmJon Roland says:
No, militia is the duties that come with the social contract that creates the society, and is thus more fundamental than any state, which is a society with effective dominion over a territory. See this article.
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October 2, 2009, 6:29 pmEscapee says:
Jon, your “effective dominion” answer pretty much covers it all. No reason to trifle in law or history, as it even works retroactively.
You win!
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October 2, 2009, 9:31 pmJon Roland says:
For a society that does not yet dominate a territory the social contract carries a duty to defend the society, but not yet a territory. When the society gets a territory, becoming a state (but perhaps not yet with a government other than popular convention), the militia duty is extended to defense of the territory. But the foundation for all this is the community, beginning with the family, extending to the tribe or village, and from there to larger polities.
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October 2, 2009, 9:44 pmPubliusFL says:
Militia was a function of the state most of the time, yeah, but in some cases the federal government was entitled to call it up and govern it directly. Since the militia at that time consisted of “the whole people” (at least all the able-bodied free adult males), that potentially put almost every citizen that mattered in the direct service of the federal government. The power to establish post offices almost made my list, it was a toss-up between that and the militia.
That’s true for the most part. State governments have the police power, the federal government does not. But I don’t really see what that has to do with the 14th Amendment. Before and after there was citizenship of the state and citizenship of the U.S. Before the latter flowed (for the most part) from the former, now the former flows from the latter. But the federal government was always one of delegated powers, and the fact that the federal government meddles far more in the lives of ordinary citizens than it was meant to stems from misconstruction of those delegated powers, not from the “subject to the jurisdiction thereof” language of the 14th Amendment.
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October 3, 2009, 7:56 amJon Roland says:
No, most of the time it was the function of the local community, a town or county. It is traditional to refer to everything below the national level as ‘state” but originally it was the people at the local level who called up militia. Even one person calling up himself is militia.
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October 4, 2009, 7:31 amPubliusFL says:
I mean constitutionally. The Constitution only discusses the federal government and the states with respect to the militia. Towns and counties are components of states and are invisible on the level of the Constitution.
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October 4, 2009, 11:48 amJon Roland says:
You went beyond the mention of state militia in the Constitution to a historical statement about it being a state function “most of the time” in a context that doesn’t make it clear that for the Framers the term “state” didn’t necessarily mean state government. When they intended that they usually referred to the state legislature. By itself, it means no more than the people in exclusive dominion over a territory, which may or may not have a government, and which includes customary or local activity that is not formally “governmental” in character other than as a kind of emergent cooperative behavior.
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October 4, 2009, 5:36 pmButter or Guns? « Conservative Libertarian Outpost says:
[...] SOURCE [...]
Eric Smith says:
Has anyone ever thought the end around incorporation offered in Presser was worth exploring?
In reading Presser the Court says a federally enforceable right to arms exists without reference to the 2ndA and this federal right binds state action to disarm citizens. The Court states the authority for this federal enforcement exists on two planes, textually and philosophically, perhaps entwined with the constitution’s promise to provide a republican form of government or simply the general militia concept being an inseparable component of our founding principles (“It is undoubtedly true . . . as the Court stated)?
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October 23, 2009, 1:32 amPaladin says:
Would some of you legal Eagles please address my post of October 1st, 2009, 12:46PM? I really don’t see where my points can be refuted. And, thus far, noone hereon has done so. I’m not a lawyer but the Constitution was NOT written for lawyers imhfo.
All this ‘incorporation” bullsh*t is just that. I restate my case here:
“The original text of the US Constitution contained language “incorporating” it entirely against the states. Simply read Article IV, Sections 1 and 2 and Section VI. You know phrases like, “The citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” And, “This Constitution,…, shall be the supreme law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.” And, “… all executive and judicial Officers, both of the United States and of the several States shall be bound by Oath or ….”
Plus, all the States were required to “ratify” the US Constitution. Why be required to ratify something if you’re NOT being required to comply with it?”
The states were bound to honor and uphold the Constitution as the
“Supreme Law of the Land.” So, where did all this supposed need for the 14th Amendment arise (I understand the issue of freed slaves being denied their rights, etc. but that was a preversion of law to start with)?
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October 23, 2009, 11:52 am