In Killing Slaughterhouse (Reason Online), Brian Doherty provides a superb, concise overview of the legal and libertarian issues regarding an upcoming Supreme Court, McDonald v. Chicago, about whether the Second Amendment should be “incorporated” into the Fourteenth Amendment so that it applies to the states, and related issues such as the Slaughterhouse Cases, “the controversial 1873 decision at the center of the Supreme Court’s upcoming gun rights fight.”
The Slaughterhouse Cases in 1873 largely eviscerated the so-called Privileges or Immunities Clause of the 14th Amendment; decades later, the Supreme Court instead relied on the Due Process Clause of the 14th Amendment to “incorporate” some of the “fundamental” rights of the Bill of Rights to strike down state laws. To do this they had to contort the Due Process Clause and invent a “substantive due process” aspect (in addition to its “procedural due process”–hello, due process is procedural), into which they could incorporate selected rights. But they never did incorporate the Second Amendment because until Heller (see To Hell with Heller), it hadn’t been yet recognized as a fundamental right. In my view there is little doubt that it will be incorporated, under the “substantive” Due Process clause.
The activist libertarians behind the McDonald case, including the McDonald (and Heller) lawyer Alan Gura, want the Court to overturn Slaughterhouse to provide a better, more honest, basis for incorporating rights, and to open the door for the federal courts to strike down even more state laws that violate “liberties.” (One wonders why the federal Courts, who let their own Congress get away with so many blatantly unconstitutional and unjust federal laws, would become libertarian all of a sudden in reviewing state legislation; but no matter.)
Doherty’s overview of the issues is excellent. He does a good job of explaining some of the resistance to Gura’s approach by different groups, including libertarians who are leery of this not because they don’t want bad state laws struck down, but because they are wary of giving more power to the federal government. Doherty quotes one of Roderick Long’s LewRockwell.com articles, and also Cato’s Gene Healy, who has also written good anti-centralist pieces for LewRockwell.com (listed here):
Some libertarian scholars, though, have never liked the idea of using the 14th Amendment to impose federal power over state law, whether or not the specific result might be one that extends rights in a salubrious direction. For example, Gene Healy, now with the Cato Institute, wrote in 1999 that “in practice, the Fourteenth Amendment has often operated as a grant of legislative and executive power to judges. And that power has been used to violate the very rights it was meant to secure.” Healy also noted a disturbingly high number of law students seeing “in the Fourteenth Amendment an irresistible engine for reshaping society along egalitarian lines.”
Libertarian philosopher Roderick Long noted, in the context of the Kelo eminent domain case, that “I am opposed to giving the Federal government the power to impose libertarian standards on the States, for the same reasons that I would oppose giving the United Nations the power to impose libertarian standards on the U.S. This is not because I think federalism takes precedence over individual rights, but rather because I think federalism is a better long-run strategy for protecting individual rights.” [Long continues (not quoted by Doherty): "Now I would not oppose giving either the U.S. or the U.N. the power to impose libertarian standards on its members if this power could be guaranteed to be exercised in a reliably libertarian manner in actual practice; but what guarantees this? The power to impose libertarian standards is also the power to impose non-libertarian standards; as Barry Goldwater (or perhaps Karl Hess) famously remarked, "A government that is big enough to give you everything you want is big enough to take it all away.""]
For more on these issues, see my recent post The Libertarian Case Against the Fourteenth Amendment.
Update: As Doherty notes, the 14th Amendment lists three distinct ways in which states and localities are prohibited from violating our rights: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Note the “of citizens” qualifier for privileges or immunities. My buddy Anthony Gregory sent me an interesting comment about this: The due process or equal protection clauses are preferable to the privileges or immunities clause because the latter only protects the rights of “citizens.” But libertarian rights such as the right to bear arms, free speech, etc. should not be limited to citizens. In other words, at present, the fundamental rights from the Bill of Rights incorporated into the 14th Amendment via the Due Process clause apply to all persons; if Gura is successful in persuading the Court to rely on the Privileges or Immunities clause instead, this would remove this protection from non-citizens present in the US.
{ 22 comments }
I know this is cliche, but what part of “shall not be infringed” do they not understand? It’s not “Congress shall make no law”, it’s “shall not be infringed”. Isn’t this enough to determine that states don’t get to override the 2nd Amendment?
This is just another blatant attempt to get rid of whatever vestiges of state’s rights that still remain.
Russ, let me axe you something, as you seem to think the 2nd amendment applies to the States. Do you think the 27th Amendment applies to the States? If not, why not, exactly? What about the Ninth? What about the Tenth? I await your reply.
As Russ said it nowhere says Congress or US government shall not infringe.
Stephan,
The 27th is a limitation on the Federal Congress. It has nothing to do with the states or the people.
The 9th Amendment simply says, as I understand it, that a judge cannot deny a person a right simply because it is not enumerated in the Constitution. This is pretty meaningless, considering that a judge could rule that a right is denied based on denial in a state constitution, or based on lack of enumeration in a state constitution, assuming the right is not guaranteed in the US Constitution (which the RKBA is).
The 10th is also rather wishy-washy, considering a judge could rule that any power not granted to the Federal government in the US Constitution, and not explicitly forbidden by the US Constitution to either the Federal or state governments (such as the power to infringe the RKBA), is granted to the state governments, and not to the people.
OK, so what devious legal trap have I fallen into?
Chief Justice Marshall destroyed that argument in Barron v. Baltimore. General language is also used with respect to many of the rights listed in Article I, § 9—yet the Constitution goes on, in Article I, § 10, to explicitly guarantee some of those same rights against the states.
Examine the Ex Post Facto Clauses, for example. Why do we need the § 10 provision, if your reading is correct?
Philip,
What argument was destroyed, and whose reading are you referring to?
Russ:
“The 27th is a limitation on the Federal Congress. It has nothing to do with the states or the people.”
I take it this means you think it does not apply to the States.
Okay, the First amendment states:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press….”
Since States don’t have Congress, the First does not apply to them either, right?
Another question for you. If the P-I clause of the 14th incorporates fundamental rights in the Bill of Rihgts, then that means it already includes the Due Process rights in the 5th Amendment. Right? So why, pray tell, does the 14th Amendment list Due Process as one of the things States can’t violate? Isn’t this redundant with the privileges or immunites clause?
And by the way, if the 14th is construed broadly, why doesn’t its equal protection clause grant blacks and women the right to vote? (It doesn’t–it took other amendments later on to do this.)
Stephen,
“If the P-I clause of the 14th incorporates fundamental rights in the Bill of Rihgts, then that means it already includes the Due Process rights in the 5th Amendment.”
What????
“If the 14th incorporates fundamental rights in the Bill of Rights…”
I think I just experienced the logical thinking equivalent of vertigo.
I predict they will not vote to incorporate the 2nd Amendment, even though the logic for not doing so (based on the precedents already set) is nonexistent.
Sean: you seem confused, so let me splain.
Before the 14th, the Bill of rights (amendments 1-10) only limited the federal government’s power. NOt the states. That’s why some states actually had established churches in 1791, and were not considered to be in violation of the first amendment.
The 14th says: “http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ”
I.e., it directly prevenst States from denying Equal Protection; from denying Due Process; and from abridging “Privileges or Immunities” (whatever those are).
Equal Protection prevents state laws from treating people differently. You would think that means blacks and women could vote too, no? Nope. That took the 15th and 19th amendments. Guess it’s not as broad as you would think!
The Due Process clause forces states to give citizens due process. Very similar to the Due Process language in the 5th amendment that requires the federal gov’t to provide due process.
the privileges-immunities–well it’s not clear waht that means. MOdern libertarians say it means “rights”. Strange, the word rights is not used. They say it includes the bill of rights. Strange, it doesn’t say this.
And if it did incorporate the rights in the Bill of rights, then it would have included due process rights that was in the 5th amendment. So the Due Process clause would have been superfluous.
Get it? Obviously the DP clause was put in the 14th beause the framers did not think the PI clause incorporated the Bill of Rights.
Stephan Kinsella wrote:
“Okay, the First amendment states:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press….”
Since States don’t have Congress, the First does not apply to them either, right?”
Huh? The 1st states that the “Congress” (i.e. the Federal Congress) shall make no law… If strictly interpreted, it says nothing about whether the states can make such laws. Several states did have established religions at one point, for instance.
“Another question for you. If the P-I clause of the 14th incorporates fundamental rights in the Bill of Rihgts, then that means it already includes the Due Process rights in the 5th Amendment. Right? So why, pray tell, does the 14th Amendment list Due Process as one of the things States can’t violate? Isn’t this redundant with the privileges or immunites clause?”
The 5th states: “No person shall … be deprived of life, liberty, or property, without due process of law”. It doesn’t say “No person shall … be deprived of life, liberty, or property, without due process of law by the Federal government, but it’s OK if a state does it”. So I would interpret the Privileges and Immunities clause of the 14th as redundant, yes.
“And by the way, if the 14th is construed broadly, why doesn’t its equal protection clause grant blacks and women the right to vote? (It doesn’t–it took other amendments later on to do this.)”
The Representatives were originally directly elected by the “People of the several States” (article I, section 2). If blacks are specified as citizens in the 14th, then I can’t see how a person could be a citizen of a state, and not be one of the “People of the several States”. So I think the 15th and 19th are redundant.
What’s your point here, with respect to the 2nd?
As a gun-lover I want to see the right to self-defense (which IMHO means the right to carry a bazooka if I want) held inviolable across the land.
As a Christian, I believe the monogamous, married, male-female relationship is not only morally sound but also the best situation for maintaining social cohesion.
Nevertheless, I balk at incorporation for the same reason I balk at DOMA. I don’t want the Federal Government to impose a cookie-cutter standard across the land because God only knows what hideous cookies they’ll make of us. If we grant the FG the force to impose standards we like, we leave them the power to impose those we detest. We must always err on the side of freedom, and in the case of incorporation that means standing against it.
Better that one state be completely wrong and see its population disappear to freer pastures, than that we grant the FG the ability to outlaw freer pastures under the guise of imposing libertarian principles on the states, however attractive they may be.
Russ wrote: “What argument was destroyed, and whose reading are you referring to?”
Sorry, I should have been more clear. I meant the argument that because the Bill of Rights—First Amendment excepted—uses general language, it must apply to state governments as well as the federal government. In Barron v. Baltimore, Marshall disposed of that argument by comparing Article I, § 9 with Article I, § 10.
For example, compare U.S. Const. art. I, § 9, cl. 3 (“No Bill of Attainder or ex post facto Law shall be passed”), with U.S. Const. art. I, § 10, cl. (“No State shall . . . pass any Bill of Attainder, ex post facto Law”).
Stephen
I am well aware of the fact that the Bill of Rights only applied to the federal government. You were intending to state the position that the P&I clause incorporates “fundamental rights”, and that those fundamental rights are what is found in the bill of rights (basically the the same function as modern-day substantive due process thinking). I also recognize that you are contesting that position. My confusion was mainly owed to the way you phrased the point, as it sounded like you were saying that the P & I clause incorporates “fundamental rights” into the Bill of Rights. Just pointing out that your phrasing was atypically obscurant. I only point this out because any discussion of these questions is in essence about the mechanical functioning of the constitutions various provisions, and as such it is particularly important that the components of any argument as to that mechanical functioning be elucidated with a high degree of clarity.
I am in complete agreement with your position that the P&I clause cannot/should not be read as a mechanism for incorporating the Bill of Rights as applicable against the states. In addition to the reasons you list, the term “privileges and immunities” as used in the 14th must be read in a manner permitting logical consistency with the use of the same phrase in art iv section 2. To say that the term as used in the 14th refers to an incorporation of the the fundamental rights in the Bill of Rights would be to say that the term in art iv sec. 2 also refers to the bill of rights, thus revealing the framers of the original constitution to be eerily prescient individuals.
Representative Bingham and Senator Howard both stated clearly in Congress in speeches then carried in a majority of newspapers that the privileges or immunities included at least the first eight amendments.
If you disagree with the policy, amend the constitution.
I find it amusing that to “stop judicial activism” proponents defend judicial nullification of a section of the constitution by Slaughterhouse Cases…
-Gene
The NRA has been saying that the rights of blacks to own guns was clearly intended by the 14th Amendment. I keep waiting for some scholarship on this.
Gene Hoffman:
“Representative Bingham and Senator Howard both stated clearly in Congress in speeches then carried in a majority of newspapers that the privileges or immunities included at least the first eight amendments.”
Gene, … so it included the fifth amendment and its due process guarantees? If so, why did the 14th separately call out DP?
Why not just say “the first 8 amendments of the Bill of Rights”? Why not even use the word “rights”?
Anyway, Berger explains this theory of yours about Bingham away–see here. In particular see his Incorporation of the Bill of Rights in the Fourteenth Amendment: A Nine-Lived Cat and Incorporation of the Bill of Rights: A Reply to Michael Curtis’ Response.
The second amendment is enough, insofar as “a free State” is understood to be one where uninfringed gun ownership by militia regulars (state organized) and militia irregulars (unorganized) is present.
A state can hardly be considered free if self defense is denied to a portion of the populace — in this regard the fourteenth is relevant.
Taken with the Article IV guarantee of “a Republican Form of Government” a strong case can be made that anything less than consistently unrestricted gun ownership is axiomatic of an unfree and therefore non-republican state.
Heller definitively rules on the individuality of the right in a non-state jurisdiction without explicitly declaring that this right is one of the fundamental “Privileges and Immunities of Citizens in the several States” referenced in Article IV — an intrinsic right of a citizen of a free republican state.
Mr. Kinsella wrote:
It seems to me that the Goldwater/Hess statement means that a government that violates property rights to fund you is equally capable, morally, of violating property rights to rob you. Mr. Kinsella tells us that it also means: The power to impose libertarian standards is also the power to impose non-libertarian standards.
And what exactly does that mean? A minarchist government that is big/powerful/capable enough to defend individual rights is big/powerful/capable enough to violate individual rights. Indeed, an anarchist “defense agency” that is big/powerful/capable enough to defend individual rights is big/powerful/capable enough to violate individual rights.
By applying to everything, it applies to nothing.
“Before the 14th, the Bill of rights (amendments 1-10) only limited the federal government’s power. NOt the states.”
Bzzt. 180 degrees ass-backwards incorrect. The Bill of Rights is explicit. When it is limiting only the federal government’s power, it says so. Where it doesn’t say so, its restrictions on government power apply to all levels of government, not just the federal level.
Knapp: “The Bill of Rights is explicit. When it is limiting only the federal government’s power, it says so. Where it doesn’t say so, its restrictions on government power apply to all levels of government, not just the federal level.”
Tom, you are just wrong here–flat out wrong. Wrong on the Constitutional history or constitutional law. Statements about what rights there are or what “should not be abrogated” in the document creating and empowering–and limiting–the federal government do not limit the states any more than they limit Egypt.
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
____________
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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