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New article on McDonald and Privileges or Immunities
"The Tell-Tale Privileges or Immunities Clause" by Alan Gura, Ilya Shapiro, and Josh Blackman.
Abstract:
Help is on the way! That’s the Supreme Court’s most readily obvious message for those Americans living in the small handful of states that don’t respect the right to keep and bear arms. It should not have been a surprise. Two years ago, in striking down the District of Columbia’s handgun and functional firearms bans, the high court provided a none-too-subtle message to recalcitrant politicians unwilling to obey national civil rights standards. Ancient cases refusing to apply the right to arms against the states, said the Court, had also failed to apply the First Amendment, and were based on obsolete thinking. This term, in McDonald v. City of Chicago, Heller’s wink-and-nudge became a shove, finally dragging anti-gun politicians into the late 19th century.
But at exactly what part of the late-19th century have we arrived? The heady days of the Fourteenth Amendment’s first five years, when it was understood that states were actually bound to respect Americans’ basic rights? Or the century’s last three years, with the Fourteenth Amendment’s central guarantee of freedom having been parodied into a dead letter, the Supreme Court setting about to pick and choose which rights are worth securing, and to what extent? It is this answer to this question, more than the result applying the right to arms, which promises to make McDonald an enduring landmark of American liberty for years to come.
Hat tip to Joe Olson...
Comments
Very good article.
Posted by: Tarn Helm at October 9, 2010 11:42 AM
Good piece.
The authors seems to ask what Scalia is worried about when reading the plain text of the 14th.
I have 2 theories.
1) Scalia is not yet ready to discard GCA '68
and NFA '34, which pretty much would be required
if a normal English speaker read the 14th.
2) Scalia is holding his originalist powder for
the 10th amendment question of how the 2nd
modified the Commerce Clause. If 'no clause in the Constitution could be "intended to be without effect"', then the 2nd prevents the Feds from
regulating firearms via the Commerce Clause.
The 2nd is more recent law, and is thus controlling.
Anybody with a pulse should be able to figure that one out.
Posted by: Frank Perdicaro at October 10, 2010 09:52 PM