In a new podcast from iVoices.org, I explain McDonald v. Chicago to Independence Institute President Jon Caldara. This is an 11 minute audio, which presumes that the listener is entirely new to the whole idea of incorporation. If you’ve got much more time on your hands, here’s an 86 minute video of my presentation on essentially the same subject in early September to the Triple Nine Society. That presentation too presumes no prior knowledge of the subject, but it spends a long time taking setting out the background, from Barron v. Baltimore, to Reconstruction, to substantive due process, to the present. Sophisticated watchers will note that I mistakenly said “Privileges and Immunities” sometimes when I should have said “Privileges or Immunities.” And I usually referred to the impending Supreme Court case as NRA v. Chicago, expecting that that Court would grant cert. in both NRA v. Chicago and McDonald v. Chicago, and the that popular name for the consolidated cases would probably be the former. I was wrong, as the Court granted cert. in McDonald only, and has made no decision in NRA, perhaps keeping that case in reserve in case some unexpected problem developed with McDonald. The very beginning of the video is cut, so it opens a minute or two into the presentation.
Soup says:
Really enjoyed the talk, just have a question.
If the Bill o’ Rights are determined to be “incorporated” against the states via Privileges or Immunities instead of via Due Process, you noted that the former clause refers to “citizens” whereas the latter refers to “people.”
You seem to think that it’s the right result for the Right to Bear Arms to be limited to only citizens and not to all “people” including resident aliens and illegal immigrants.
But under your theory, if states aren’t required to apply the protections of the Second Amendment to non-citizens, aren’t they similarly not required to apply other protections? Maybe the Due Process clause might prevent unreasonable searches and other such things, but if a state could validly forbid resident aliens from bearing arms, why couldn’t a state validly forbid resident aliens from speech the majority disapproves of? Corporations aren’t “citizens,” so might a state be allowed to ban electioneering by corporations? Could a state bar corporations from exercising the Right to Bear Arms?
I suppose you could say that such denials of the protections of the Bill of Rights would nevertheless be disallowed under the Due Process clause. (There’s a “liberty” in speech, and then replicate the present incorporation doctrine.) But isn’t there a “liberty” in protecting your property and family, even for resident aliens? What’s the difference for the purposes of Due Process between speech and bearing arms? Or between bearing arms and the right to an attorney, or the free exercise clause, or any other right we could imagine states preventing non-citizens from enjoying?
October 5, 2009, 10:59 pmTomH says:
Over two hours of video and I still don’t know if an LLC or a S corp is right for me?!?!?
October 6, 2009, 6:34 amStephen Goldstein says:
I wish someone would pursue the theory that the Second Amendment does not have to be incorporated in order to be extended beyond Federal jurisdiction . . . .
First, there’s the phrasing (which is shared by the Fourth), “. . . the right of the people . . . ” in contrast to, for example, the First’s “. . . Congress shall make no law . . . .”
Second, I think it could be argued (as with Heller) that absent a right of self-defense, the inalienable right to life and liberty isn’t much of a right.
I know, the need for incorporation was settled long ago but, at risk of being overly philosophical, doesn’t overturning precedent, pretty much, involve asserting a new theory and providing a better brief?
Apologies to the lawyers, here, who are probably cringing but that’s what I think.
October 6, 2009, 6:43 amDaily Pundit » Incorporation for Dummies Or Smart People says:
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October 6, 2009, 7:12 amFederal Farmer says:
Incorporate as an LLC if you think your tax status might chance (from S Corp to C Corp, for instance). From there you can choose whether you will be taxed as an S Corp or a C Corp and can change it as needed.
October 6, 2009, 7:54 amThat is the power of an LLC. It creates a separation between Corporate identity and IRS tax status. You pay for it though. In IL it costs $500/year for an LLC as opposed to $100/year for an S Corp.
Peter K. says:
Dave — U.S. District Court for Puerto Rico decisions get appealed in the First Circuit, not the Second.
October 6, 2009, 9:13 amBama 1L says:
Soup, courts don’t read “the people” the same as “persons.”
October 6, 2009, 9:55 amMore Importantly... says:
I fail to see why that would be a bad thing — intuitively, the Bill of Rights should not extend beyond citizens.
October 6, 2009, 11:40 amSoup says:
I don’t think this is intuitive at all. Why is it intuitive to allow states to search and seize resident aliens’ or corporations’ property unreasonably? If a basis of the Right to Bear Arms is to allow self-defense, why is it intuitive to disallow folks with green cards the ability to defend themselves and their families? Don’t noncitizen persons have the same natural rights as citizens?
True, but the Privileges or Immunities clause discusses “citizens of the United States,” not “the people” or “persons.”
October 6, 2009, 12:50 pmMore Importantly... says:
In a word, No. More precisely, they surely shouldn’t enjoy the same rights and privileges as citizens, whose nation it is.
October 6, 2009, 1:21 pmSoup says:
I guess we’re sort of talking past each other. I’m coming from the assumption that the Bill of Rights were drafted, in part, to prevent the federal government from infringing the natural rights that all persons have, regardless of any governmental structures above them.
If, however, you believe that the all protections of the Bill of Rights are not natural rights, but are created by the government and given to whomever the government wishes, it makes sense to say that nobody has a natural right to anything at all.
Where does the right to self defense come from? Where does the right to free contract come from? Where does the right to pursue an education come from? Certainly not from the government, and the latter two certainly don’t proceed from the terms of the Constitution.
October 6, 2009, 1:43 pmPubliusFL says:
Prevent the federal government from infringing whose natural rights? It’s possible that the Bill of Rights was intended to protect certain rights that are natural rights that all persons have, but that the specific guarantees in the Constitution only apply to those people for whose benefit the Constitution was created: “we the people of the United States of America.” Under such a theory, everyone else in the world would have the rights, they would have to look elsewhere (e.g. their own governments) for the protection of the rights.
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December 2, 2009, 8:10 pm