I am writing to inform you that the links I provided in my prior comment (Dan Goodman December 19, 2009 6:17am) 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    “In the Constitution of the United States, which superseded the Articles of Confederation, the corresponding provision is found in section two of the fourth article, in the following words: ‘The citizens of each State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

____

Perhaps Liberals think the Bill of Rights only applies to the Southern States?

Strange that libertarians are so often mocked for being dogmatic where in this case the lack of dogmatism is the problem.

You are quite right that there is no bright line defining when life begins. Yet you are quite willing to impose one every bit as arbitrary as one drawn by the most radical pro-choice folk.

My two biggest complaints with Roe are that is was poorly grounded in the Constitution, and that it was social engineering writ large. Most opponents of abortion unfortunately attack only the one aspect and would impose an equally tenuous Constitutional position to ban it.

There is a policy debate to be had about exactly when a faetus becomes legally a person with all the natural rights thereof (like not being murdered just for being inconvenient) which does need to be settled with law, perhaps even an ammendment. The key is not so much exactly when such a legal transformation occurs, but that the arbitrary line in the sand is one we can live with, as a nation.

There are several other implications that not just libertarians would like, but liberals of many different stripes could salivate over.

They could, but they won’t if it means letting those evil right-wingers have firearms.

Because P and I incorporation is part of restoring the rule of law in this country

This incorporation can be just as selective as the due process route.

BTW, DK compliments someone for civility and than calls his views “poppycock.” Curious.

It would be a huge advance in the rule of law if we could get the Court to admit that it wasn’t entitled to pick and chose among the Bill of Rights as to which were worthy of enforcement.

Hadur: Why are liberals and libertarians so focused on P&I? What does it give them that sub due process doesn’t?

There are two very important reasons to prefer P or I incorporation.

1. It’s a far more originalist and textual basis as the right to arms really isn’t a right of due process.

2. It has the added benefit, if successful, of potentially garnering justices that didn’t vote in favor of Heller which would lead to a much more cherished and valued right to arms applied against all levels of government.

-Gene

He also ignores the reason the Freedmen act of 1866 included the constitutional right to bear arms.

Sloppy brief.

[DK: Ridiculous. I respect your diligent dredging of the most eccentric interpretations of 19th century legal commentary to support your argument against the Standard Model of the Second Amendment. Since your tone is appropriately civil for legal discourse, your arguments (even though I think they are wrong) contribute to the intellectual vibrancy of the VC. However, as someone who has 20 years of experience reading Halbrook briefs, I am certain that the notion that this, or any other brief he has written, is "sloppy" is nonsense. If you want to say that in the 15,000 words he was allotted by the Court, he didn't address your (unusual and in your view correct) theory of the Freedmen's Bureau Act, that's fine. To call a Halbrook brief sloppy is lower than poppycock.]

Hadur: Why are liberals and libertarians so focused on P&I? What does it give them that sub due process doesn’t?

It actually makes sense. To me, that is pretty important. Maybe that’s why I’m an engineer instead of a lawyer.

As I understand it, the P&I clause was intended to incorporate the Bill of Rights and other preexisting rights against the states. It was part and parcel of Reconstruction. Reconstruction failed, and so shortly did P&I when the Supreme Court read it out of the Constitution in Slaughterhouse.

Cruikshank took it even further, saying that there were no Federal protections of citizens against actions of their state or its citizens. Lynching, for example, was beyond federal law according to Cruikshank. Well worth reading, if even the summary on Wikipedia.

cubanbob: Mr. Kopel for the layman reader what are the consequences if Slaughterhouse, Cruikhank, and Presser are overturned?

For one thing, the right to privacy is likely legitimized and falls under the reinvigorated P or I clause. From that, it is a short step to the right of a woman to her own body.

There are several other implications that not just libertarians would like, but liberals of many different stripes could salivate over.

Halbrook (the NRA lawyer) covers the history of this well established interpretation during the founding era in his great little book That Every Man be Armed. It’ll be interesting to see how he handles this dimension of the argument as he makes his incorporation case.

NRA was not granted. McDonald was. The major difference between the cases are that one was argued by Alan Gura and focused on the error of Slaughterhouse. Hence the grant signaled that the court wanted to hear the P or I argument.

-Gene

I’d like to see a brief that shameless plays to each Justice’s political beliefs. Id’ be refreshingly honest. Probably more honest than the Justices could handle.