When folks say that there’s a distinct difference between rights and privileges, I’m left to wonder if they even contemplate, much less realize, the consequences of that statement being true.

The Fourteenth Amendment states, in part, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;”. Privileges or immunities simply must be words referring to the inalienable rights recognized within, but not granted by, this country’s Constitution.

If ‘privileges or immunities’ isn’t a synonymous way to describe inalienable rights, then the Fourteenth Amendment can only have created an alternate class of citizenship absent inalienable rights. This would mean that We the People became, upon it’s implementation, nothing more than subordinate subjects of an omniscient and all powerful master called government. It would mean that the Fourteenth Amendment effectively removed inalienable rights and replaced them with master-allowed privileges.

Even if they don’t realize it, folks who declare a difference between rights and privileges are making the case that not only do governments have no boundaries, but that the Fourteenth Amendment facilitated the enslavement of the population and it’s posterity due to the destruction of individual inalienable rights themselves. They might want to reconsider.

In June, the Supreme Court will tell Mayor Daley, Chicago’s alderman, the Illinois General Assembly and everyone else that blanket bans on owning and carrying firearms are unconstitutional because the Second Amendment, which is already judicially recognized as a set of defined, individual and inalienable rights, applies to all of government.

The McDonald versus Chicago decision will, by overturning the unjust Slaughterhouse cases decision, codify the fact that We the People are immune to being persecuted by unconstitutional criminal code because each of us individually owns the privileges, the rights, the freedoms, the Liberties, recognized within the Constitution.

I am writing to inform you that the links I provided in my prior comment (Dan Goodman December 19, 2009 5:40am) no longer work. The new locations for them are:

____________

FOOTNOTE

The Effects of the Fourteenth Amendment on the Constitution of the United States

http://www.australia.to/2010/index.php?option=com_content&view=article&id=327

Also,

A Look At Corfield (On Citizenship)

http://www.australia.to/2010/index.php?option=com_content&view=article&id=331

____________

There is also the following which I think would be appropriate.

Comment on Petitioner’s Brief: McDonald v. City of Chicago

http://www.australia.to/2010/index.php?option=com_content&view=category&layout=blog&id=91&Itemid=126

http://www.americanchronicle.com/articles/view/136777

____________

I wish to state that the Supreme court, in the Slaughterhouse Cases, held that because of the Fourteenth Amendment there were now two separate and distinct citizens under the Constitution of the United States; a citizen of the United States, under the Fourteenth Amendment and a citizen of the several States, under Article IV, Section 2, Clause 1 [FOOTNOTE]:

    “We think this distinction and its explicit recognition in this Amendment (the 14th Amendment) of great weight in this argument, because the next paragraph of this same section (first section, second clause), which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several states. The argument, however, in favor of the plaintiffs, rests wholly on the assumption that the citizenship is the same and the privileges and immunities guaranteed by the clause are the same.” 83 U.S. 36 (1873), page 74.

And:

    “In the Constitution of the United States, which superseded the Articles of Confederation, the corresponding provision is found in section two of the fourth article, in the following words: ‘The citizens of each State shall be entitled to all the privileges and immunities of citizens OF the several States.’ ” 83 U.S. 36 (1873), page 75.

The last was later reaffirmed in Cole v. Cunningham:

    “The intention of section 2, Article IV (of the Constitution), was to confer on the citizens of the several States a general citizenship.” Cole v. Cunningham: 133 U.S. 107, 113–114 (1890).

The privileges and immunities of citizens of the several states are those described by Corfield, cited in the Slaughterhouse Cases. This is reaffirmed in Hodges v. United States:

    “In the Slaughter House Cases, 16 Wall. 36, 76, in defining the privileges and immunities of citizens of the several States, this is quoted from the opinion of Mr. Justice Washington in Corfield v. Coryell, 4 Wash. Cir. Ct. 371, 380.” Hodges v. United States: 203 U.S. 1, at 15 (1906).

So there are now two citizens under the Constitution of the United States. One needs to find out information on both. For a citizen of the United States that is easy. Just about anywhere. For a citizen of the several States one will have to begin here:

http://citizenoftheseveralstates.webs.com/index.htm

____________

FOOTNOTE

The Effects of the Fourteenth Amendment on the Constitution of the United States

http://www.australia.to/index.php?option=com_content&view=article&id=15882

Also,

A Look At Corfield (On Citizenship)

http://www.australia.to/index.php?option=com_content&view=article&id=16868

____

J. Aldridge: The question is right to keep and bear arms for what?

Relevant questions are useful questions. The rest are, well ....

Yours has been resolved:

Held:
1. The Second Amendment protects an individual right to possess a
firearm unconnected with service in a militia, and to use that arm for
traditionally lawful purposes, such as self-defense within the home.

Gene Hoffman: The right to keep arms and thus procure them is a right/privilege/immunity of being a citizen of both the state and the federal government.

The question is right to keep and bear arms for what? Evidence points to arms for public defense since none of the colonies wanted to maintain armies for war or public disturbances. This explains why Congress declared freedmen’s right to bear arms restored when they were allowed to organize and train in an armed militia within former rebel states that were still under U.S. control.

An interesting can of worms could be opened by such a ruling.

Are they going with Liberty or with ideology?

DjDiverDan: how revolutionary is the notion that the Supreme Court is not free to just make it up as they go, that they are bound by the text and unambiguous intent of the Constitution?

Under present-day circumstances? Revolutionary in the extreme.

Anything which directly contradicts its constitutional holdings is wrong under United States federal law” – are you saying that applies to Slaughterhouse and Presser as well?

As long as those two cases have not been overruled by the Supreme Court, their constitutional holdings are as valid as Heller’s. Anything which directly contradicts those two cases’ constitutional holdings is wrong under US federal law. That’s exactly what I am saying. I might not like all of it, but that is the legal position.

There are two ways to alter the situation: one is reversal of an earlier opinion, which is being attempted here. That is rare, but it does happen. For example see Dredd Scott and Brown v Board of Education for one of the most famous reversals. The other is through a constitutional amendment, such as the one passed to allow the federal government to charge income tax which reversed an earlier court ruling on the subject.

The other situation where this comes up in a particularly contentious way, of course, is Rowe v Wade. Many people do not agree with the constitutional holdings of that case, but again until either it is overturned or a constitutional amendment is passed its constitutional holdings are the law of the United States.

Foxtrot: 1. If stare decisis as a force for stability is what Newtown, meant, then he should have qualified his statement.2. The brief discusses reliance and argues that in light of SDP doctrine no one relies on Slaughterhouse anymore.3. Do you think that stare decisis has any limits based on the context of the text. If a hundred year old decision said that a 30 year old could be President, can the Court overturn that?4. What about the reliance of Americans who believe they have a right to own guns that is protected by the 2nd Amendment?

Gura addresses the 4-point reasoning for abandoning Stare decisis in his brief.

He also quotes Laurence Tribe: “[T]he stare decisis hurdle posed by Slaughter-House appears fairly insignificant. It would take but a little wind, and far from a hurricane, to blow that House down.”

I admit Tribe is no J. Aldridge, but...

A more serious, substantive contradiction lies between Respondent’s Due Process and Privilege or Immunities arguments with respect to the nature of the Second Amendment. Arguing against the Second Amendment’s incorporation under the Due Process Clause, Respondent asserts that the right to bear arms is not fundamental. Respondent’s Br., 11. Yet the logic of this Court’s Privileges or Immunities doctrine, which Respondent endorses, rests upon the fact that the Second Amendment is indeed an ancient, established right pre-dating the Constitution. United States v. Cruikshank, 92 U.S. 542, 553 (1876). The logical needle Respondent would thread treats the right to arms as natural and inherent in the Constitution’s absence, yet somehow not “fundamental to the American scheme of justice,” Duncan v. Louisiana, 391 U.S. 145, 149 (1968), or “necessary to an Anglo-American regime of ordered liberty,” id. 150 n.14. The tension between these two conditions cannot be resolved.

Joe: Has anyone stopped to consider that the right to bear arms is not a due process right?You mean procedurally? Unless the SC suddenly overturns substantive due process (and its use as a sort of 9A proxy), no, I don’t think the right to keep and bear arms is not within that gambit. Ownership at home, as in Heller, particularly so.Overall, since there is a right secured against the state (no matter how you get there), deprivation is a violation of due process of law.

I think you assume your conclusion. If California bans the import or sale of certain semiautomatic firearms, how does that violate my right to due process of law? I’m not arrested for possession, but I sure have seen my right to keep arms infringed. The right to keep arms and thus procure them is a right/privilege/immunity of being a citizen of both the state and the federal government.

When the early 20th century SCOTUS started using substantive due process they were actually talking about rights that were subject to same like takings or warrants. The right to own and carry arms basically free from state interference isn’t a due process right. It may become a due process right when I’m arrested for simply possessing a firearm, but by then it’s a little too late and remains a stretch to call it a right of due process. My process due was to not have to face the process in the first place. As a clarifying example in the alternative, every day for the rest of my life I will face the process of reasonable searches and seizures upon a warrant properly granted and I can conduct my affairs appropriately.

–Gene

Jerome: Can someone explain to this lay person how the Respondent can argue;“In Presser, the Court held that a pre-existing right like the Second Amendment right “to keep and bear arms” is not a privilege or immunity of United States citizenship because it is not “in any manner depen-dent upon [the Constitution] for its existence.”and hold the view that the RTKBA is somehow fully within the power of the states to limit? If the right to life, self-preservation, self-defense and consequently arms pre-exists the Constitution and is independent of it, how can it be limited by any document?

Jerome,
I’ll give it a shot: Assuming that there is a natural right to self-defense (including possesion of guns). Now, what does that have to do with the federal government? Well, it might mean that the federal government can’t deny or infringe that right — but that wasn’t the issue in Presser, nor is it the issue in McDonald.

The issue in those cases is wether the federal government can prevent states from infringing that right. Because the federal government is one of granted and enumerated powers, the answer is “no,” unless it has such a power.

In Presser (and McDonald), the plaintiffs claim that the Privileges or Immunities clause gives the federal government that power. It certainly does something — “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...” This creates a federal power to prevent states from abridging the Ps or Is of citizens.

But what are those? In Presser the Court held that the right to arms and self defense is not part of P or I.

I hope that clarifies the ppoint you asked about.

Jerome: “while there is a “mountain of evidence”

Where is this quotation from?

This is why everyone hates lawyers– it seems like double speak. If there is a mountain of evidence to protect fundamental and natural rights how can it not include the Bill of rights?

“In Presser, the Court held that a pre-existing right like the Second Amendment right “to keep and bear arms” is not a privilege or immunity of United States citizenship because it is not “in any manner depen-dent upon [the Constitution] for its existence.”

and hold the view that the RTKBA is somehow fully within the power of the states to limit?

If the right to life, self-preservation, self-defense and consequently arms pre-exists the Constitution and is independent of it, how can it be limited by any document?

It’s certainly an attention-getting way to brief the case. It’s not just arguing for a win: It’s arguing for a revolution.

Yes — a revolution in the right and responsibility of the Federal Government to enforce against encroachment by the states any of the fundamental rights protected by the Constitution (including the entire Bill of Rights), a revolution that was commenced in 1866 in the House of Representatives by the drafters of the 14th Amendment, a revolution that was seemingly won by the People with the ratification of the 14th Amendment, but a revolution which was ingloriously and illegitimately quashed in 1873 by a Supreme Court which chose to ignore both the text and history of the 14th Amendment in order to avoid the logical and necessary consequences of that revolution. Just imagine — how revolutionary is the notion that the Supreme Court is not free to just make it up as they go, that they are bound by the text and unambiguous intent of the Constitution?

Federal Farmer: Isn’t there a big difference between a decision handed down last year and one handed down over 100 years ago? Stare decisis is there to prevent rapid changes keeping people and legislators off-balance trying to figure out what is legal or illegal. But it isn’t a suicide compact either.

1. If stare decisis as a force for stability is what Newtown, meant, then he should have qualified his statement.

2. The brief discusses reliance and argues that in light of SDP doctrine no one relies on Slaughterhouse anymore.

3. Do you think that stare decisis has any limits based on the context of the text. If a hundred year old decision said that a 30 year old could be President, can the Court overturn that?

4. What about the reliance of Americans who believe they have a right to own guns that is protected by the 2nd Amendment?

Foxtrot: Newton (and others),You can’t have it both ways. Either SC precedent can be criticized under some objective standard or not. If so, then you can’t keep throwing a 5-vote majority at Aldridge saying “You be quiet little man – Supreme Court has spoken.” If not, then the petitioner’s brief in McDonald (and the Constitutional claims it advances) are also wrong. “Anything which directly contradicts its constitutional holdings is wrong under United States federal law” – are you saying that applies to Slaughterhouse and Presser as well?

Isn’t there a big difference between a decision handed down last year and one handed down over 100 years ago? Stare decisis is there to prevent rapid changes keeping people and legislators off-balance trying to figure out what is legal or illegal. But it isn’t a suicide compact either.

Grubbs: I’ll declare Aldridge the winner here. The 2nd Amendment clearly was in response to fears of the disarming of the organized state militias and a select national militia put in their place.And Heller did not make any kind of convincing argument for a right to personal firearms. Scalia too many times ignored following quotes that would had damaged his assertion.

Grubbs — can you please respond to the same questions I asked Aldridge? Your post here does not make sense (i.e. it is not a coherent argument addressing the issues being discussed here), because you do not address the question of what method should be used to interpret the 2nd or 14th (or any other) Amendments).

Do you agree with Scalia that one should try to determine how people in the Colonies then would have understood the meaning of the Amendment, or with Stevens that purpose is what matters? If the latter (which is implied by your reference to what the Amendment was ostensibly “in response” to, do you think the meaning of the Amendment would be different if it just read “The right of the people to keep and bear Arms, shall not be infringed”?

The 2nd Amendment clearly was in response to fears of the disarming of the organized state militias and a select national militia put in their place.

In your view, was that the sole purpose of it?

The 2nd Amendment clearly was in response to fears of the disarming of the organized state militias and a select national militia put in their place.

And Heller did not make any kind of convincing argument for a right to personal firearms. Scalia too many times ignored following quotes that would had damaged his assertion.

A little bird came to me, revealing that Chicago is desperately trying to come up with argument to defend their ban on handguns kept or borne outside of a militia context.

You might consider contacting them, and outlining some of your arguments. Perhaps they’ll incorporate them into their undeveloped brief. They have, after all, been granted another two weeks (until 30 December) to get their arguments together.

Here are their names and contact information:

MARA S. GEORGES — Corporation Counsel of the City of Chicago
BENNA RUTH SOLOMON — Deputy Corporation Counsel
MYRIAM ZRECZNY KASPER — Chief Assistant, Corporation Counsel
SUZANNE M. LOOSE, ANDREW W. WORSECK — Assistants to Corporation Counsel

30 N. LaSalle Street, Suite 800
Chicago, Illinois 60602

Thank you for your response to Aldridge. I was about to draft something similar, but you have done a better job than I could manage.

I’m very interested in seeing his responses.

I think P&I is the better approach, but as a practical matter, would Thomas suddenly decide that there’s a right to an abortion under P&I? Would Ginsburg think that Miranda doesn’t apply to the states?
If and when the left can get 5 activists, there will be a right to gay marriage, etc. under either approach. If and when the right gets 5 Scalias, rights will be limited to those clearly enumerated in the Constitution under either approach. I see this debate as largely academic.

You can’t have it both ways. Either SC precedent can be criticized under some objective standard or not. If so, then you can’t keep throwing a 5-vote majority at Aldridge saying “You be quiet little man – Supreme Court has spoken.” If not, then the petitioner’s brief in McDonald (and the Constitutional claims it advances) are also wrong. “Anything which directly contradicts its constitutional holdings is wrong under United States federal law” – are you saying that applies to Slaughterhouse and Presser as well?

Methinks these guys are a prime example: armed from fireplaces & closets, no formal state-sponsored organization, yet quite secure in their neighborhood in the disaster-caused absence of police & military.

J. Aldridge: Well, if anyone cares to show me this direct “contradictory evidence” then I can respond. Until then the 2A continues to address militias as security to a free state through armed citizens of that state and not some ridiculous right to hang a rifle over the fireplace.

You could respond to the evidence cited in the brief...you know, with direct evidence refuting those parts you think are wrong.

Though it seems we disagree on these issues, I appreciate your willingness to participate in a discussion here, where your views are clearly in the minority. However, I’m having some trouble understanding the points you are making and trying to fit them into the context of current 2A and 14A scholarship. I have some specific questions:

1. It seems that you disagree with the majority in Heller. Is that because you reject the method used there (original public meaning to determine the legal content of the 2nd A.) or do you believe that either the method is applied there incorrectly or the evidence there is insufficient?

2. To the extent that you reject Heller, do you think that Stevens’ dissent is correct? Do you agree with the dissent’s method (determining the legal content of the 2nd A. based on the Amendment’s purpose)?

3. To some degree, the 2nd A and Heller are irrelevant to the issue here in McDonald. I assume from the fact that you are posting here that you have read the brief. In the brief the petitioners argue that the 14th A was intended and was understood to give citizens a constitutional right of armed self defense that could not be denied by the states, independent of any militia or military considerations. Do you think that this characterization of the 14th A. is incorrect? If so, why? Why do you think an understanding of Heller determines the proper outcome of the P or I argument made in the brief? (due process incorporation is, of course, clearly determined by the content of the 2nd A.).

4. In the context of your commitment to “truth” (i.e. objective and immutable fact) in interpreting the Constitution, what does the Privileges or Immunities clause mean?

JeffinCA: You’re sticking to that, really? In the face of directly contradictory evidence

Well, if anyone cares to show me this direct “contradictory evidence” then I can respond. Until then the 2A continues to address militias as security to a free state through armed citizens of that state and not some ridiculous right to hang a rifle over the fireplace.

As to how many folks during the LA riots without guns survived because of — rather than irrelevant to the vaguely nearby presence of — the police, we simply don’t know, and it doesn’t much matter to the argument being presented, which is that we do know that some folks with guns did successfully defend themselves and their property there and then — and elsewhere and elsewhen — without the necessity of uniforms, specific government permission, or standing in formations.

As to Gura and Company going after the SlaughterHouse Cases, well: wow.

J. Aldridge: But again the issue under the 2A isn’t whether a person can defend themselves with a “arms,” but whether Congress would interfere with the arming of the people as part of the military power of the state to replace them with a national army.

The 2A is surely about whether a person can defend themselves with arms. This is settled.

I dismissed your non-sequiter comment regarding Governor Page, and now another from Madison. Is that all you’ve got? You said armed, unorganized people can’t defend themselves from mobs. You’re sticking to that, really? In the face of directly contradictory evidence, you’ve said the equivalent of “up is down”. Brilliant.

JeffinCA: Nice try, but handwaving away an example of unorganized people defending themselves from a mob during the LA riots as a direct counter example to your assertion that “Armed, unorganized persons cannot defend themselves or their community individually from mobs, ...” is rediculous.

Was a awful lot of people who did not have any gun who survived because of police. But again the issue under the 2A isn’t whether a person can defend themselves with “arms,” but whether Congress would interfere with the arming of the people as part of the military power of the state to replace them with a national army. Madison said standing armies was the gravest threat to the liberty of the people.