Available here. An outstanding brief, as one might expect. The bulk of the brief (21 pages, comprising Part I) shows that from the Founding Era into through the framing of the Fourteenth Amendment, national citizenship was paramount to state citizenship. Part II briefly argues that Slaughterhouse violated canons of constitutional construction–such as by interpreting the Privileges or Immunities Clause to make it nothing more than a reiteration of the Supremacy Clause.
Finally, Part III (pp. 27–33) argues that enforcing the Privileges or Immunities Clause will not undermine the Court’s prior so-called “substantive due process” jurisprudence. The brief shows that long before the 14th Amendment, “due process” was understood to mean that certain inherently unfair government actions were beyond the scope of lawful government powers–even if the government had followed proper procedures, such as public hearings. In the Supreme Court, the doctrine is as old as Daniel Webster’s argument in the 1819 Dartmouth College case, was always solidly established in American understanding of “due process,” and was so understood by the Framers of the Fourteenth Amendment.
Lead author on the brief is Timothy Sandefur of the Pacific Legal Foundation, which is also a party on the brief. You can listen to a podcast with Sandefur discussing the brief. The PLF’s Liberty Blog has some very interesting posts on the historical background of the Slaughterhouse cases.
United States v. Cruikshank, which was decided a few years later, finished off the job of judicial nullification of the Privileges or Immunities clause. Since that Court allowed some white domestic terrorists get away with mass murder of armed blacks who had assembled in a Louisiana courthouse, Cruikshank might appropriately have been captioned Slaughterhouse II.
sitzpinkler says:
Rule: If you read the Constitution wrong enough times, the reading becomes right.
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November 23, 2009, 2:09 amJasonF says:
Forgive me if this is spelled out in the brief (which I have not read), but what is the practical effect of overruling the Slaughterhouse Cases? Suppose the Court agrees that they were wrongly decided, and that rights are incorporated against the states through the privileges and immunities clause rather than the due process clause. So what? Is there anything states would be unable to do after such a ruling that they are able to do now (or vice versa)?
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November 23, 2009, 2:43 amOrin Kerr says:
It’s interesting to me that the Cato brief is based on original intent originalism rather than original public meaning originalism. That is, it is based on what the drafters wanted the 14th Amendment to do, rather than what the 14th Amendment was understood by the public to mean (or perhaps more specifically, what the words of the 14th Amendment were understood to mean by the public at the time). Do we have any good historical sources on what the public understood the P or I clause to mean at the time? If so, what do they suggest? If not, do we have reason to believe that the public knew what the authors of the 14th Amendment intended? I don’t know how widely the debates over the meaning of P or I were distributed around the country at the time. Does anyone know?
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November 23, 2009, 2:59 amsitzpinkler says:
No day?
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November 23, 2009, 3:02 amjellis58 says:
Orin,
I know this does not really answer your question (ok actually it doesnt answer is at all) but I thought is was worthwhile to note that original meaning originalists would still give great weight to oringinal intent (but not treat it as determinative) beacause the intent of the drafters is strong evidence of what the words they chose to use would have been understood to mean. Im not sure we would actually need evidence that the public knew of the bingham and co.‘s intent to make the inference that the drafters would have relized the best way of making their intent understood was to use language that would be understood by the public to mean what they intended.
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November 23, 2009, 3:53 amjellis58 says:
opps change the first two “is“s to “it“s
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November 23, 2009, 4:05 amShag from Brookline says:
Overruling the Slaughterhouse cases to accommodate the expansion of Heller may result in the creation of slaughterhouses.
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November 23, 2009, 5:04 amBrett Bellmore says:
I’ve always figured that the distinction between original intent and original meaning was overblown: Assuming that the drafters wanted to be understood, and weren’t hopelessly opaque, the two should converge in almost every case.
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November 23, 2009, 5:53 amShag from Brookline says:
The Fall 2009 issue of Constitutional Commentary includes a lead article “Originalism’s Misplaced Fidelity: ‘Original’ Meaning Is Not Objective” by Tara Smith. (I haven’t checked to see if this article is available via SSRN.) Smith discusses the various forms of originalism. Her conclusion includes the following, page 56:
“The Public Understanding school, unfortunately, chains us to the closed conceptions of words’ meanings that have been held by particular individuals. It attempts to reduce what is fundamentally a conceptual question (about the meaning of words) into a historical one (what did earlier people believe?). By reducing the judge’s task from interpretation to imitation, Originalism, in practice, replaces its coveted rule of law with the rule of men — earlier men.”
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November 23, 2009, 6:54 amDavid Newton says:
Really? I had no idea that Heller had any impact on the meat-processing industry. Please enlighten us as to how the second amendment affects beef, lamb, and all other meats?
I suppose that the most concrete connection could be Chicago’s most prominent industry and its early days and the fact of who one of the parties in the McDonald case is. Got anything better?
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November 23, 2009, 8:40 amDjDiverDan says:
Well, yes, that is true. But it ignores the fact that the understanding we are talking about is the understanding of those who ratified the Constitution — or those who ratified the amendments. Construing the Constitution according to its plain meaning and the objective understanding of those who ratified the Constitution is no more revolutionary than construing a written contract according to the plain meaning and objective understanding of the persons who executed the contract, intending to be bound thereby. And to those “living Constitutionalists” who reject the notion of being governed by the understanding of people living two hundred years ago, the Constitution is not cast in stone, and it provides a perfect mechanism for revising and adapting to changing conditions — Amendments proposed and ratified as provided in Article V. Yes, the process of legitimately amending the Constitution is difficult and time consuming (especially when compared to the illegitimate process of Constitutional amendment by Judicial fiat), but it was designed to be that way to ensure that no rights or liberties granted or preserved in the Constitution would be taken away or limited without a strong need and a broad consensus for such action.
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November 23, 2009, 8:53 amCornellian says:
I’ve always figured that the distinction between original intent and original meaning was overblown: Assuming that the drafters wanted to be understood, and weren’t hopelessly opaque, the two should converge in almost every case.
They do converge in almost every case, it’s just that the rare case where they don’t is disproportionately likely to reach the Supreme Court.
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November 23, 2009, 9:14 amAllan says:
So, if I could find contemporary evidence that the framers thought falsely yelling “fire” in a crowded theater was to be protected by the 1st Amendment, I could conclude that Justice Holmes was wrong?
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November 23, 2009, 9:56 amGabriel McCall says:
There’s a sizable body of legal argument– starting at least as early as Holmes through Hugo Black to Thomas and Scalia– which takes a contrary view on substantive due process, arguing that due process as properly understood and as understood in the time of the founders referred specifically and exclusively to procedural due process, and that the concept we now know as substantive due process was an invention of the courts.
Is it Cato’s and Kopel’s stance that the correct historical meaning of “due process” is a settled question and that anyone who disagrees is objectively wrong, or is there room for reasonable people to disagree on this issue?
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November 23, 2009, 9:58 amBrennan says:
Without having looked too deeply into it, the law at issue in the Slaughterhouse Cases seems like a reasonable approach to a serious problem. Do any of the briefs arguing that Slaughterhouse was wrongly decided take the position that the limiting interpretation of the P&I clause taken by the majority was unnecessary to uphold the law or otherwise explain how similar health and safety regulation can pass muster under the Plaintiff’s proposed reading of the P&I clause?
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November 23, 2009, 10:02 amJoe says:
The Fourteenth Amendment was written and ratified in a time of great public debate, including the President publicly promoting a different view, so the public understanding should be something we can examine, probably more so than the BOR original public understanding. I don’t know how useful it will be, but that’s a different question.
BTW, is there any reason or clear effect to the fact that the 14A altered the conjunction of the original Art. IV use of privileges/immunities — “and” vs. “or” ... or is it just in place so people like me can mistakenly use the wrong word when citing it?
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November 23, 2009, 10:13 amJoe says:
Holmes through Hugo Black to Thomas and Scalia– which takes a contrary view on substantive due process, arguing that due process as properly understood and as understood in the time of the founders referred specifically and exclusively to procedural due process
In Lochner, Holmes noted:
I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.
He later thought that this included freedom of speech. This is not “procedural” is it? Black also was never totally clear on how he ‘incorporated’ the BOR into the 14A. He did not merely rest on the P/I Clause. Again, not procedural only.
Cato has various members who promote a substantive due process viewpoint (an originalist argument cited in one of the briefs, as this blog noted recently). The Cato Supreme Court series has a note on each volume about its concern for the natural law tradition, which SDP in part reflects. But, I’d be surprised if they made it some “settled question” where debate is not “reasonable.”
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November 23, 2009, 10:23 amInstapundit » Blog Archive » CATO’S BRIEF FILED in McDonald v. Chicago…. says:
[...] CATO’S BRIEF FILED in McDonald v. Chicago. [...]
Allan Walstad says:
From the brief:
Well shoot–must every silver lining have a cloud? The Constitution created a federal government with strictly limited powers. 14A, as stated, does not increase federal authority except to enforce its provisions–mainly, and obviously, extending the Bill of Rights to apply to the states as well as the feds. All this verbiage (from CATO) about a single, sovereign nation is extraneous and lends itself to the insidious notion that the federal government somehow thereby escapes its Constitutional bounds. More in a couple hours after class.
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November 23, 2009, 10:58 amAllende says:
In law school the professors always taught that the P & I Clause was dead letter, due to the USSC. Could never believe that it wouldn’t get around to reviving, depending on the Court and times.
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November 23, 2009, 12:16 pmClayton E. Cramer says:
You could, but you might have some serious trouble finding such contemporary evidence. Everything that I can find demonstrates that the original public meaning was that prior restraint was not allowed, but that one could be punished for scandalous, libelous, or obscene publications. As late as 1834, a lawyer defending his client on a blasphemy charge knew better than to argue that the freedom of the press protected blasphemy. Instead, he argued that it violated the religion clauses of the First Amendment.
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November 23, 2009, 12:58 pmTimothy Sandefur says:
As the author of the brief, I’d like to answer Prof. Kerr’s question about original intent versus original public meaning. The brief was drafted in the knowledge that there will be perhaps 35 or 40 amici on this side, and I expect these amici to address the original public meaning. (In particular, I suspect Prof. Barnett’s brief will talk about that.) Nor is the brief, of course, intended to be exhausting about Slaughter-House’s flaws or the academic consensus that it was wrongly decided. I wanted instead to address an aspect–a more global aspect–of the question: the ideological commitments from which the amendment originated.
As I’ve been explaining this week in a series of posts at the PLF Liberty Blog, I see Slaughter-House as encapsulating an epic story in the philosophical history of the American Constitution.
The Fourteenth Amendment was a triumph of a particular conception of the Constitution–of federalism and individual rights–that Jacobus tenBroek called “paramount national citizenship.” Understanding that ideology, of course, requires us to understand what the intellectual leaders of that movement were thinking and saying. Of course that’s a different question from what the words meant in a public sense at the time of ratification. (In this case, I don’t believe the two diverge in any significant way, but that’s not an issue I chose to address.) I wanted to tell the story of the clashing states’ rights and paramount national citizenship ideologies, and how although the Fourteenth Amendment ought to have signified the constitutional triumph of the latter, it was essentiall destroyed by the Slaughter-House majority, thanks in no small part to one particular attorney, Jeremiah Sullivan Black.
So the bottom line is that the brief is not supposed to be comprehensive–no single brief could be, particularly given the word limit, which we were starting to push–but is intended to describe as best as possible, an ideological conflict that is much too big for any single explanation; indeed, an ideological conflict that generated the Civil War.
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November 23, 2009, 1:05 pmShag from Brookline says:
Perhaps my comment was too subtle as Mr. Newton asks:
“I had no idea that Heller had any impact on the meat-processing industry. Please enlighten us as to how the second amendment affects beef, lamb, and all other meats?”
I had in mind the human animal. See Nicholas J. Johnson’s Symposium contribution “Supply Restrictions at the Margins of Heller and the Abortion Analogue: Stenberg Principles, Assault Weapons, and the Attitudinalist Critique” (60 Hastings L. J. 1285, June 2009), available via SSRN at:
http://ssrn.com/abstract=1494634
making the argument that assault weapons should pass muster under Justice Scalia’s opinion in Heller as less deadly than handguns and automatic rifles. With incorporation of the Second Amendment highly anticipated and with recognition that self-defense principles should not be limited to the home, assault weapons may become commonplace, perhaps even more so than handguns.
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November 23, 2009, 1:20 pmJ. Aldridge says:
Bingham, House Report No. 22, January 30, 1871: “The words ‘citizens of the United States,’ and ‘citizens of the States,’ as employed in the Fourteenth Amendment, did not change or modify the relations of citizens of the State and the nation as they existed under the original Constitution.”
New York Times, November 15, 1866: We concluded the first number with the quotation of the First Section of the proposed Amending of the Constitution that ‘no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.’ This is intended for the enforcement of the Second Section of the Fourth Article of the Constitution, which declares that ‘the citizens of each State shall be entitled to all the privileges and immunities of the citizens in the several States.’”
Bingham, House Report No. 22, January 30, 1871: “The clause of the Fourteenth Amendment, ‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,’ does not, in the opinion of the committee, refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four, section two.”
Bingham, House Report No. 22, January 30, 1871: “It had been judicially determined that the first Eight Amendments of the Constitution were not limitations on the power of the States, and it was apprehended that the same might be held of the provision of the second section, fourth article.”
Bingham, 1866 & 1870: “This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States.”
Bingham, January 9, 1866: “I propose, with the help of this Congress and of the American people, that hereafter there shall not be any disregard of that essential guarantee of your Constitution (Art. IV, Sec. II) in any State of the Union. And how? By simply adding an amendment to the Constitution to operate on all the States of this Union alike, giving to Congress the power to pass all laws necessary and proper to secure to all persons—which includes every citizen of every State—their equal personal rights; and if the tribunals of South Carolina will not respect the rights of the citizens of Massachusetts under the Constitution of their common country, I desire to see the Federal judiciary clothed with the power to take cognizance of the question ...”
Bingham: “The gentleman will pardon me. The amendment is exactly in the language of the Constitution; that is to say, it secures to the citizens of each of the States all the privileges and immunities of citizens of the several States. It is not to transfer the laws of one State to another State at all. It is to secure to the citizens of each State all the privileges and immunities of citizens of the United States in the several States. If the State laws do not interfere, those immunities follow under the Constitution.”
Rep. Samuel Shellabarger of Ohio on the P&I’s clause: “It protects no one except such as seek to or are attempting to go either temporarily or for abode from their own State into some other. It does not attempt to enforce the enjoyment of the rights of a citizen within his own State against the wrongs of his fellow-citizens or his own State after the injured party has become or when he is a citizen of the State where the injury is done.”
Bingham to Rep. Robert Hale (NY): “I respectfully ask him [Hale] to inform us whence he derives the authority for supposing, if he does suppose, that any State has the right to deny to a citizen of any other State any of the privileges or immunities of a citizen of the United States. And if a State has not the right to do that, how can the right of a State be impaired by giving to the people of the United States by constitutional amendment the power by congressional enactment to enforce this provision of their Constitution?”
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November 23, 2009, 1:41 pmJ. Aldridge says:
Cato needs to do its homework.
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November 23, 2009, 1:42 pmTimothy Sandefur says:
I have no idea what Mr. Aldridge is trying to prove. Congressman Bingham’s commitment to the principle of paramount national citizenship is unquestionable, and he believed the Amendment would not be creating that principle, but enforcing that principle, which he believed to have always been constitutional law. Nothing in Mr. Aldridge’s quotes from Bingham contradicts that; on the contrary, they support the argument made in the brief. Bingham was always a nationalist, and always believed that individual rights appertain to one’s national citizenship–and that the states were violating that principle up to and including the Civil War era. Thus when he argued the Amendment would do ‘nothing new,’ he meant it–the Amendment would simply, for the first time, fulfill what he believed to be the original promise of protection for individual rights against states. That’s why he said the Amendment didn’t create new rights–and why states’ rights partisans believed that it did. In his view, but not in theirs, all Americans were already entitled to have states respect their natural and common law rights.
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November 23, 2009, 1:57 pmTimothy Sandefur says:
See, e.g., Cong. Globe, 39th Cong., 1st Sess. 2542 (1866), where Bingham says,
That seems to be exactly the argument the brief makes. Certainly that was the intent.
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November 23, 2009, 2:02 pmAnonymous says:
Prof Kerr, the Petitioners’ Brief has a great deal of evidence as to how the privileges or immunities clause was understood by the ratifying public
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November 23, 2009, 2:12 pmAllan Walstad says:
From CATO:
Whatever Hamilton may have said, he was surely not one of the framers of the Constitution. He left the Convention when it became clear that it would not create the national government he favored. He returned to sign it and propagandize in its favor only because he thought it better than the Articles of Confederation.
Notice that Madison says nothing of a “new national identity” in the quote. If the authority of the Constitution comes from the people, it does not thereby generate anything beyond an entity with specific, limited powers. Note also that ratification was via representative conventions, and it was state-by-state. “We the people” comes across, unfortunately, as a bit of a propaganda term.
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November 23, 2009, 2:14 pmJ. Aldridge says:
No he wasn’t. He always proclaimed himself a states right man. That is why he liked quoting Calhoun.
But doesn’t Cato want it fulfilled between citizens of a state and their own state and not citizens of the United States in another state?
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November 23, 2009, 2:17 pmJ. Gray says:
SHAG:
Can you please describe for us the difference between an assault weapon and an automatic rifle? Further, can you elaborate on why “assault weapons” pose more of a threat than handguns?
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November 23, 2009, 2:22 pmAllan Walstad says:
More from CATO:
So it was just those damned Southerners (Madison and Jefferson in 1798, by the way)? Not quite. According to Wikipedia, the Massachusetts general court had this to say about a trade embargo passed in 1813:
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November 23, 2009, 2:26 pmShag from Brookline says:
Gray asks:
“Can you please describe for us the difference between an assault weapon and an automatic rifle? Further, can you elaborate on why “assault weapons” pose more of a threat than handguns?”
I refer you to Mr. Johnson’s article. He makes the point that assault weapons, as he defines and distinguishes them from automatic rifles, are better in providing self-defense to an individual as opposed to handguns and automatic rifles, as assault weapons are easier to use and are less deadly than handguns and automatic rifles. Certain skills and strengths are required, according to Mr. Johnson, for using handguns and automatic rifles. I am not saying that I agree with Mr. Johnson, but with the incorporation of the Second Amendment, surely some arms enthusiasts may seek Second Amendment rights with no limits.
As to assault weapons posing more of a threat than handguns, assuming they are less deadly than handguns and automatic rifles, a lot of people, including innocents, may get injured by the spray of bullets.
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November 23, 2009, 3:07 pmJ. Aldridge says:
That is a falsehood. Bingham never believed such a thing. An act of congress in 1868 proves this to be false.
Bingham said three times in 1866 that “due process” was the same process found under chapter 39 of the charta.
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November 23, 2009, 3:11 pmDavid Newton says:
The person making that distinction does not know what they are talking about. “Assault weapons” are by definition automatic weapons. Since they do not know about that meaning then anything else they have to say on the subject is at the very least suspect. Wrongly defining “assault weapons” is a classic smear tactic of some anti-gun campaigners.
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November 23, 2009, 3:23 pmAllan Walstad says:
Gray & Shag:
I had a look at Johnson’s paper. While apparently nose-holding, he adopts the “definition” of “assault weapon” in the now-defunct 1994 ban.
I agree with Justice Thomas, as quoted by Johnson:
So what’s Shag’s point?
Right, I’m sure lots of folks will mistake them for garden hoses. What “spray” are you talking about? The gun fires a round each time you pull the trigger. So do many guns not labeled as “assault weapons” by the anti-gun propagandists. Yes it’s possible for someone to get shot accidentally. So what? All sorts of useful things have dangers.
NO limits? Even First Amendment rights are not without limitation (“fire!” in a theater, etc.) Virtually all 2A supporters simply want 2A treated as a serious individual right in the same way as other rights are already.
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November 23, 2009, 3:39 pmPubliusFL says:
Let me see if I’m following you. “Overruling the Slaughterhouse cases to accommodate the expansion of Heller may result in the creation of slaughterhouses,” because “assault weapons may become commonplace,” and assault weapons “are less deadly than handguns and automatic rifles.”
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November 23, 2009, 3:39 pmDavid Newton says:
Looking at my previous post it appears that I have slightly mis-spoken. “Assault weapons” in itself is a term coined by anti-gun campaigners as a false distinction and enshrined in law in the 1994 ban. “Assault rifles” are by definition automatic weapons. The term assault weapons was coined to deliberately invoke assault rifles. It is a misleading term and should not be used to accurately describe the capabilities of firearms.
My point about the use of the term being a classic smear tactic certainly still stands, and anybody who uses the term in an article to describe firearms in the sense of being “more dangerous” has shown themselves to be incredibly biased and ignorant.
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November 23, 2009, 3:43 pmSeaDrive says:
Without a doubt, there is no unanimity on the terminology. I think David Newton must be in the substantial sector of the pro-RKBA community that invests some mythic importance to stamping out “erroneous” usages.
So far as I know, the term “automatic rifle” is not is common use. Interpreted at face value, it would mean something included under the common term “machine gun”, and regulated by Federal law.
“Assault rifle” is commonly applied to semi-automatic rifles, even those that would never be used by a military force. This usage was written into law by the AWB. Although many, probably including Mr. Newton, would argue that an “assault weapon” banned by, e.g. a state AWB is not correctly called an assault rifle, the distinction is too fine to stand. A rifle that is a banned assault weapon is going to called an assault rifle.
I suspect the suggestion that an assault rifle is less dangerous than a handgun arises from the observation that shooters are more accurate with a shoulder-fired weapon than with a handgun. This proposition requires evidence. At best, it’s a huge over-simplification.
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November 23, 2009, 3:48 pmSeaDrive says:
Huh?
I doubt anyone thinks assault weapons, however defined, are less deadly than handguns. Whether a semi-automatic rifle is more dangerous to innocents than a semi-automatic handgun is moot. Handguns are more difficult to aim, but rifles (in general) have more powerful ammunition. In fact, rifles are used in crime much more rarely than guns, so the argument is irrelevent.
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November 23, 2009, 4:32 pmJoe says:
Bingham said three times in 1866 that “due process” was the same process found under chapter 39 of the charta.
So? What does this mean? Some thought it meant that we had certain natural rights that no lawful government could violation, so by definition could not pass with “due process of law.”
Conclusionary citations of Bingham without proper context is far from as helpful to the rest of us than it seems to be to you.
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November 23, 2009, 4:49 pmItsForTheChildren says:
We need to ban the “ENCOM CM-55″ and “H-93″.
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November 23, 2009, 4:51 pmJoe says:
Bingham said three times in 1866 that “due process” was the same process found under chapter 39 of the charta.
So? What does this mean? Some thought it meant that we had certain natural rights that no lawful government could violate, so by definition could not pass with “due process of law.” Such as freedom from slavery. This idea was even cited in the Republican platform.
Conclusionary citations of Bingham without proper context is far from as helpful to the rest of us than it seems to be to you.
[Sorry for the duplicate — couldn’t edit the former comment properly.]
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November 23, 2009, 4:52 pmbob says:
Then perhaps you shouldn’t try to argue with him?
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November 23, 2009, 4:54 pmMatthew Carberry says:
Read and learn why assault weapons are a non-issue crime and public safety-wise . Note exciting facts and references to actual statistics and studies by law enforcement, you won’t find those on anti-gun websites...
http://www.guncite.com/gun_control_gcassaul.html
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November 23, 2009, 5:04 pmTweets that mention The Volokh Conspiracy » Blog Archive » Cato brief in McDonald v. Chicago -- Topsy.com says:
[...] This post was mentioned on Twitter by Kellijo Huff, Josh Blackman. Josh Blackman said: Win Two links from Volokh in one day. http://bit.ly/70F7J1 (Podcast with Tim Sandefur) and http://bit.ly/6ftTSs (Duty to tweet) [...]
David Newton says:
As I mentioned in the post just before the one I am quoting, I did realise that I had slightly mis-spoken concerning “assault weapons” vs “assault rifles”. I want to stamp out incorrect usages because they distort language and lead to misunderstandings.
A good non-firearms-related example would be stating something is “very unique”. This is complete nonsense as something unique is by definition one of a kind and cannot have a descriptor such as very applied to it. It is, however, correct to say something is nearly unique which would mean something that is not unique but is so low in numbers as to very closely approach unique status. Very unique or other similar nonsense is commonly encountered in every day conversation and is based on a fundamental misapprehension of the meaning of unique.
Similarly the use of the term “assault weapon” describes a nebulous and poorly defined concept. Since assault weapon was defined, somewhat, by the 1994 legislation it is not entirely vacuous as a term. However it was deliberately coined to muddy the waters and confuse people. Semi-automatic weapons, with flash suppressors, bayonet lugs and whatever other characteristics the 1994 legislation used are not more dangerous than semi-automatic weapons without those features. They just seem more “dangerous” to the average person in the street.
It should also be well remembered that the law turns on precise definitions and that cases are distinguished on the facts for sometimes seemingly comparatively small reasons. For example in Fisher v Bell in the UK under section 1(1) of the Restriction of Offensive Weapons Act 1959 it was illegal to “offer” flick knives for sale. A prosecution was bought against a shop for displaying a flick knife in the window. Both the court of original jurisdiction and the Court of Appeal dismissed the case on the grounds that under contract law an “offer” is more than simply displaying an article with a price tag on it. Had the statute included language about “exposing for sale” then things would have been very different.
To the average man in the street simply displaying an article with a price tag is an “offer”. Under contract law it is an “invitation to treat” which is a very, very different thing. To the average man in the street the terms “assault weapon” and “assault rifle” might mean the same thing due to the Brady Campaign et al. Under firearms law they may well be very different things, and since the 1994 act defined “assault weapons” as being semi-automatic and “assault rifles” are generally understood either be or to include automatic weapons then the chances of the terms being distinguished in a court opinion are relatively high.
Statutes which are imprecise are badly drafted and lead to bad court cases. It is possible to be very broad in application and yet very precise in language. “Assault weapon” is a term which is imprecise and with no rational basis in law other than being enacted to make people feel better. Making people feel better is not a good basis for a statute. For a prime example of this see the Dangerous Dogs Act 1991 in the UK.
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November 23, 2009, 5:58 pmAllan Walstad says:
...and was apparently invented by anti-gun propagandists for propaganda purposes.
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November 23, 2009, 6:19 pmDavid Newton says:
Bingo. That’s exactly why it should not be used when talking about firearms. It is also why the knowledge about firearms of anyone who does use it should be seriously called into question.
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November 23, 2009, 6:37 pmRKV says:
Aldridge is a troll. He has argued that Heller was wrongly decided and should be ignored. He brings up quotes from Bingham and others out of context and ignores contrary evidence. I wouldn’t waste time on his screed.
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November 23, 2009, 9:08 pmShag from Brookline says:
Here’s a common headline of a short time ago:
“The US Army major who carried out the Fort Hood massacre sprayed more than 100 rounds at his comrades using a gun nicknamed the ‘cop killer.’”
No, that wasn’t a garden hose. Query whether “massacre = slaughterhouse”? Query whether the “cop killer” gun is included in the description of assault weapons?
Would firing an assault weapon in a crowded theatre in self-defense be okay under the Second Amendment?
The elements of self-defense have changed over the years. How does originalism of the Second Amendment address this?
Are there any places outside of the home that might impose limitations on the use of self-defense via the Second Amendment? (Court houses, stadia, Congress, hospitals, public events, etc?)
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November 24, 2009, 4:57 amPubliusFL says:
The gun he used was a normal semi-automatic handgun, not an assault weapon under the ’94 ABW, the California assault weapon ban, or any other assault weapon definition I can think of. The main selling point of the particular gun he used (the FN Five-Seven) is that it fires a small-caliber round that is more effective than most handgun rounds at piercing body armor. However, it is extremely unlikely that many people in the deployment center were wearing body armor, and the armor-piercing ammunition for the Five-Seven is not commercially available to private individuals anyways. The ammunition you can actually buy for it is classified as non-armor-piercing by the BATFE. His rounds almost certainly would have been more lethal had he used a handgun chambered for a more conventional round, like .45 ACP, .40 S&W, or even 9mm.
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November 24, 2009, 8:54 amFederal Farmer says:
- Josh Sugarmann
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November 24, 2009, 10:46 amAllan Walstad says:
Shag, this is just a typical example of terminology favored by anti-gun propagandists being picked up by the media and used as the king’s English. The real question about the Fort Hood killings is how soldiers at an Army base could be so defenseless against a single person with a couple of handguns.
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November 24, 2009, 1:51 pmShag from Brookline says:
Perhaps the answer to Mr. Walstad:
“The real question about the Fort Hood killings is how soldiers at an Army base could be so defenseless against a single person with a couple of handguns.”
is to permit/require soldiers to carry arms, either openly or concealed, at all times while on an Army base. And perhaps this should be extended to all other places, public and private, in America, for all citizens/residents.
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November 25, 2009, 5:17 amJ. Aldridge says:
Bingham: “The gentleman read from the Magna Charta of England, that ‘no freeman shall be taken or disseized,’ &c., ‘but by the judgment of his peers and the law of the land;’ forgetful of the fact that the words ‘no freeman’ were words of limitation, and limited this great charter at the time it was adopted to one half the population of England, and forgetful also that these words of limitation were swept away by the Constitution of the United States, in which it is declared that ‘no person shall be deprived of life, liberty, or property without due process of law.’”
There is your proper Bingham context.
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November 25, 2009, 4:26 pmwuzzagrunt says:
Common headlines don’t shed much light. The reports I read indicated that Maj. Hasan didn’t “spray” anything at anyone. He reportedly aimed quite deliberately with a laser sighted pistol (Laser sights? Oh noes! Assault Flashlights!). It is also useful to determine the source of the “cop killer pistol” appellation. It certainly did not get the nickname because it has been used in a large number of police fatalities.
The Five-Seven, without armor piercing ammo, is really nothing special. Ballistically speaking, it isn’t much more than a glorified .22 magnum rimfire. Lethal? Sure, but it wouldn’t be my choice of weapon to bring to a gunfight. But then, Maj. Hasan is alleged to have sought unarmed, and unarmored, targets.
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December 2, 2009, 6:30 pmChicagoGunCase.com » We get questions… says:
[...] now, Prof. Kerr has asked the following set of questions in a discussion thread about the Cato Institute’s amicus [...]
Dan Goodman says:
To all,
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
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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
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December 19, 2009, 6:12 amDave Kopel’s Second Amendment Newsletter | The American Jingoist says:
[...] David Kopel The Volokh Conspiracy November 23, 2009 http://volokh.com/2009/11/23/cato-brief-in-mcdonald-v-chicago/ [...]
Dan Goodman says:
To all,
I am writing to inform you that the links I provided in my comment (Dan Goodman December 31, 2009 7:33pm), two entries up, no longer work. The new locations for them are:
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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
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There is also the following which I think would be appropriate. It relates to the Brief filed by the Petitioners in McDonald v. City of Chicago. However, what is written there, applies in substance, to the Brief filed by Cato.
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
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January 24, 2010, 1:12 am