I am writing to inform you that the link I provided in my prior comment (Dan Goodman December 31, 2009 2:08am) no longer works. The new location for it is:

The fact there is a citizen of the several States in law is settled1

http://www.australia.to/2010/index.php?option=com_content&view=article&id=329

____________

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

____________

In addition, “[t]he Supreme Court, however, adopted a narrower view when it first interpreted the Fourteenth Amendment in 1873 in the Slaughter-House Cases. These consolidated cases addressed several butchers’ constitutional challenges under the Reconstruction Amendments to a Louisiana statute granting a monopoly on the butchering of animals in New Orleans to a single slaughtering company. Justice Miller, writing for the five Justices in the majority, rejected each of the butchers’ constitutional claims, holding that the statute did not violate the guarantees of the Thirteenth Amendment or the Fourteenth Amendment’s Privileges or Immunities Clause, (fn 86) Equal Protection Clause, or Due Process Clause, all of which he believed were concerned predominantly with the protection of the recently freed slaves. . . .

————

fn 86: Id. at 72-80 The Court divined a purported distinction in the text of the Fourteenth Amendment between the ‘privileges and immunities of citizens of the United States’ and those ‘of citizens of the several states.’ Id. at 74. The Court then expressed that the clause only protected ‘the privileges or immunities of citizens of the United States,’ which it limited to those owing ‘there existence to the Federal government, its National character, its Constitution, or its laws.’ Id. at 79. . . .”

Source: Rhodes, Charles W. (Rocky), “Liberty, Substantive Due Process, and Personal Jurisdiction”, Tulane Law Review, Vol. 82, No. 2, 2007. This paper can be downloaded at the Social Science Research Network at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1004112 .

————

There is a desire, by many, to overturn the Slaughterhouse Cases, using the McDonald case as the means. The reason centers on the Privileges or Immunities Clause of the Fourteenth Amendment. Those who wish to overturn Slaughterhouse Cases believe: a) that there is only one citizen under the Constitution since the ratification of the Fourteenth Amendment and the Slaughterhouse Cases, b) that the privileges and immunities of this citizenship; that is citizenship of the United States, should be those described in Corfield v. Coryell. They do not know that there is a second citizenship now under the Constitution (and not the Fourteenth Amendment), and that this citizenship has those privileges and immunities described in Corfield v. Coryell. This citizenship is citizenship of the several States.

The fact there is a citizen of the several States in law is settled!

http://www.australia.to/index.php?option=com_content&view=article&id=16289 . [Footnote]

The 14th Amendment states “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Whether it includes the Second Amendment is what the Supreme Court will determined. If it is a privilege or immunity of a citizen of the United States, then it will have to be one which owes it “existence to the Federal government, its National character, its Constitution, or its laws.” Slaughterhouse Cases, page 79.

________________________

Footnote

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

—

RKV: As to your first statement, no amount of your spin can hide the broad meaning of “privileges and immunities” as the phrase had been in legal use in the Americas since the early 1600s. The phrase is NOT as some have stated “an ink blot” but rather is left less defined in the 14th Amendment than some positive law types would like because said privileges and immunities are large in number and broad in scope rather than narrow, or as in your case, non-existent.

Well, what do you think they meant back in 1787? There was no 8 amendments you could argue that defined them. No one ever argued the newly added amendments added anything to the P&I’s of U.S. citizens. Bingham strongly asserted and made clear many times the P&I’s under the 14A were identical to Article 4, Section 2. He even referred to Article 4, Section 2 as “privileges or immunities of citizens of the United States” before he even added such words to the 14A.

RKV: And the 14th Amendment includes all of the BOR, JA’s repeated (and false, by being half true) contentions not withstanding.

That must explain why Congress, at the urging of Grant, attempted to make the Establishment Clause a limitation against the states. No amount of spin can hide the fact the 14A makes no mention of the entire first 8 amendments.

Also, you should pay more attention to what Taney is saying there. He is talking about a state ignoring their citizenship status by placing them on an unequal footing with white citizens in absence of never having been convicted of a crime.

However, Am. 14 contained the magic phrase “due process”, and the Justices of the late 19th century, having declined P&I as a tool, used that opening to create the doctrine of substantive due process. Because SCOTUS used SDP to void state legislation intended to regulate labor relations and other commercial topics, the doctrine soon acquired a bad odor among so called “Progressives”.

After the New Deal revolution, the Court forswore SDP. One of the leading Rooseveltians on the Court, former Klansman, Hugo Black, proposed using the doctrine of incorporation of the BoR into Am 14 through the magic and mystery of the due process clause in order to harmonize the Courts jurisprudence on many subjects, and to retain much of its power, whilst casting the most inconvenient SDP cases into the outer darkness.

The Black approach won a great deal of academic approbation, as it allowed SCOTUS to side with the angels during the toughest years of the second reconstruction, while continuing the New Deal drive to bring Socialism to America.

However the most important cases to reach the court in the 1960s and 70s were the ones protecting the rights of genital friction so lovingly presented in Section 987654321 of the BoR. By the beginning of the 21st century the Court found it impossible not to recognize that SDP was alive and well protecting Section 987654321, and the sweet mystery of life along with unicorns and rainbows. Honestly, folks it is hard not to be sarcastic about the dung hill that is SCOTUS jurisprudence.

SDP had the infinite advantage over incorporation that the words due process are actually in Am 14. However SDP is at best, as Nino says, an oxymoron. Incorporation is not in the words of Am 14, and it is those words alone, and not anybody’s intentions or floor speeches, that were ratified by the States. Incorporation is a recent invention that has the fatal problem of not being expressed in the constitution.

P&I suffers from the same problems, and perhaps worse than those of due process, because those words do not put in an appearance anywhere in the BoR.

It is my hope and expectation that SCOTUS will decide that the second amendment does not trammel the states, just as I hope that they will one day recognize that there is no Section 987654321.

This does not mean that I oppose gun rights, I firmly believe that the right to bear arms is the right to be free. I also believe that rights are only meaningful if they are in the hearts of involved and informed citizens, not on pieces of paper. I think that Chicago’s gun laws like the rest of the toxic waste of that sick political system, like Obama, Emmanuel, and Axelrod need to be brought down and replaced.

*see:
http://www.gpoaccess.gov/constitution/pdf2002/018.pdf

” It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.”

And the 14th Amendment includes all of the BOR, JA’s repeated (and false, by being half true) contentions not withstanding. That our judiciary would not enforce the 14th Amendment was an error then, and an remains an error now. The Supremes should correct that misjudgement.

JIMV: Note he did not say some of the bill of rights, or specific rights, but ‘this bill of rights’…all of it. Incorporation is a construct of the courts.

He (Bingham) did just before he made those comments, and the 14A only speaks of some, not all of the bill of rights.

PubliusFL: The 14A doesn’t say anything about a state’s own citizens not being protected by the PorI clause, either. So you can’t claim any high ground for your interpretation on the basis of what’s explicitly spelled out in the amendment. Both interpretations stand or fall on the proper understanding of “privileges or immunities.”

No need to spell out who the P&I’s apply to under the 14A because the legal understanding was so well established and understood that they only apply to a citizen who temporarily removes himself from his state of residence to another state. That is why when Bingham brought up the subject he always made clear these are not any P&I’s a citizen under his/her own state can claim.

Let’s take an example of Ben Franklin, who was a Pennsylvania Citizen both before and after the ratification of the U.S. Constitution. When he went to France as our ambassador, his national status was as a U.S. Citizen, yet his French status was that of a French resident.

Why would that principle be any different today? A citizen of the United States is not the same thing as a Pennsylvania Citizen; the state Citizen owes allegiance to and is protected by his state. The citizen of the U.S. has no state, and owes the state no loyalty. This is why the citizen of the U.S. is termed a ‘resident’ in relation to the several states, and this is also why the citizen of the U.S./state resident has no recourse to the first ten Ammendments–he is not one of We the People.

In arguing why the Amendment was needed…to “arm the Congress … with the power to enforce this bill of rights as it stands in the Constitution today.”

Power over who? The states.

Note he did not say some of the bill of rights, or specific rights, but ‘this bill of rights’…all of it. Incorporation is a construct of the courts.

You understand incorrectly.

If you move to CA, you will be charged “non-resident” tuition by the CA university system. If Texas has similar policies, you’ll retain the right to attend the Texas university system at “in-state” rates.

You can also retain your voting rights in Texas while residing elsewhere for a variety of reasons.

States with income tax reserve the right to collect it from residents who have left the state as a result of being stationed elsewhere by the US military. (I think that most such states currently choose to have an exemption, which is good because it’s really hard to change your “resident state” as far as this is concerned. I know folks who were considered CA residents for tax purposes even though they’d been stationed outside CA for 10+ years and hadn’t even visited.)

College students from out of state typically pay out of state tuition for all their years at college.

Just living in a state sometimes does not get one residency or citizenship in that state; specific actions have to be taken to achieve state residency, under specific conditions. Then one can obtain benefits of state residence & citizenship, such as in-state tuition or government services (in some states).

So J. Aldrigge had a very good question, there.

There was SH (and Cuikshank et al), cases which had nothing to do with a coservative court trying to undo Reconstruction. So after those cases, which had nothing to do with Reconstruction and clearly did not limit incorporation (nor were viewed as such by legal contemporaries), incorporation was universally accepted! Right?

I do not believe this is the reason the courts ignored the 14th Amendment. I believe they ignored it because it overnight made the very legal precedent the courts and judges themselves had made obsolete. It said their previous acts were now wrong and a ‘new legal order’ applied.

The court was not going to sit and take it, so they ignored the amendment. Only when those judges were dead and gone and the new courts had no vested interest in past bad legal precedent, did ‘incorporation’ begin…

There is not an American alive today that believes speech, or assembly rights are not guaranteed everywhere, regardless of what a state might pass. The question of the 2nd amendment is simply academic, with some folk believing more in philosophy that law or the Constitution.

Example: Could Loving have been decided as a P or I case, based on the large majority of states that viewed the marriage right being unlimited by race?

J_A: A legal question:J. Aldrigge said
“State jurisdiction does not recognize national citizenship of its own state citizens. Only when a citizen of one state removes outside of his state of residence does a national citizenship follow.”What does –today– being a citizen of a state mean? I am now a resident in TX, subject to the laws of TX. I understand that the only thing I need to do to sever my ties with TX and become a citizen of any of the other 49 states is to pack my stuff and move, rent a house and apply for a new drivers license.If state citizenship ends and starts with just moving across state lines, then there is no such thing as state citizenship per se. If I cannot claim the privileges and duties of a citizen of TX (for instance, it’s nice not to have to pay state income tax) just because I happen to live yards accross the border, in LA or NM, but become instead automatically a citizen of LA or NM (and start paying those pesky taxes), then the states are nothing more than convenient arrangements to handle certain local issues, just like a very very big city spanning a lot of space, and there is only one national citizenship and one national law.I am probably wrong, but for the life of me, I don´t know why(FD: I am not a US citizen, but a permanent resident. This might be a stupid question that is taught in high school civics. If so, apologies)

No, it’s a legitimate question. The Civil War pretty well established the primacy of the national government, and the 14th Amendment was intended to place the state governments under the same constraints as the National government. But the full implications of this subordination have never been worked out.

J. Aldridge: Obviously it is his House Report that is the truth because the 14A doesn’t say a thing about any of the first eight amendments.

The 14A doesn’t say anything about a state’s own citizens not being protected by the PorI clause, either. So you can’t claim any high ground for your interpretation on the basis of what’s explicitly spelled out in the amendment. Both interpretations stand or fall on the proper understanding of “privileges or immunities.”

Gene Hoffman: Kidding but sheesh it’s sad to see the retread misdirection of Bingham from a speech in which Bingham stated that the first 8 amendments are included in the Privileges or Immunities upon which he then read them. It’s also up to the reader to notice that the speech in question is 5 years after passage of the 14th…

He suggested once in March of 1871 that the first 8 amendments were a limitation against the states in relation to only citizens of the United States. But two months earlier he said they were not. Which is the truth? Obviously it is his House Report that is the truth because the 14A doesn’t say a thing about any of the first eight amendments. Plus, Congress attempted (at the urging of Grant) to amend the constitution to disable the states from violating the Establishment Clause. SH had nothing to do with this attempt and never even came up in the debates.

Still, even if there are idiots who takes Bingham’s remarks at face value can’t get past the fact he pointed out they belong to United States citizens and not citizens of a state. Senator Howard argued the same thing. A citizen within their own state of residence is a citizen of that state and becomes a citizen of the United States when they remove to some other state. Only little children could be confused over this well known fact.

Kidding but sheesh it’s sad to see the retread misdirection of Bingham from a speech in which Bingham stated that the first 8 amendments are included in the Privileges or Immunities upon which he then read them. It’s also up to the reader to notice that the speech in question is 5 years after passage of the 14th…

-Gene

J. Aldridge: State jurisdiction does not recognize national citizenship of its own state citizens. Only when a citizen of one state removes outside of his state of residence does a national citizenship follow. SH was a correct ruling.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.”

Drink!

J_A: What does –today– being a citizen of a state mean?

It means the great liberty of self-government. To be able write and administer the laws as a collective body of fellow citizens see fit (although this horrifies liberals). It means independence from a central tyrannical government like Parliament and today’s Congress.

J. Aldrigge said
“State jurisdiction does not recognize national citizenship of its own state citizens. Only when a citizen of one state removes outside of his state of residence does a national citizenship follow.”

What does -today- being a citizen of a state mean? I am now a resident in TX, subject to the laws of TX. I understand that the only thing I need to do to sever my ties with TX and become a citizen of any of the other 49 states is to pack my stuff and move, rent a house and apply for a new drivers license.

If state citizenship ends and starts with just moving across state lines, then there is no such thing as state citizenship per se. If I cannot claim the privileges and duties of a citizen of TX (for instance, it’s nice not to have to pay state income tax) just because I happen to live yards accross the border, in LA or NM, but become instead automatically a citizen of LA or NM (and start paying those pesky taxes), then the states are nothing more than convenient arrangements to handle certain local issues, just like a very very big city spanning a lot of space, and there is only one national citizenship and one national law.

I am probably wrong, but for the life of me, I don´t know why

(FD: I am not a US citizen, but a permanent resident. This might be a stupid question that is taught in high school civics. If so, apologies)

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.”

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1457360

David, I don’t have to read any of the linked articles to thank you for an informative summary of what’s going on contemporaneously in a very interesting and potentially revolutionary aspect of Constitutional interpretation.