14th Amendment
Prof. Nick Johnson on the 14th Amendment & the right to arms
Right here.
"So what do militia-fixated critics of the right to arms have to say about all this? Well, not much. Because if you aim to neuter the right to arms with claims that the amendment is only about militias, you really do have to ignore the Civil War, Reconstruction, the postwar amendments, and indeed most of the 19th century (including antebellum state court decisions holding that the Second Amendment protects an individual right to arms enforceable against the states).
Ironies abound here. Most cutting is that people who lean heavily on the Fourteenth Amendment to support rights that they like, avoid it like kryptonite when it comes to the constitutional right to arms. Someone quipped that this is constitutional interpretation, buffet-style. Justice Stevens' dissent in McDonald is a prime example of this. It extols privacy and reproductive rights grounded in the Fourteenth Amendment, but disparages the armed self-defense right that will keep you alive to enjoy all the others.
For many years, critics chided the academy, the government, and society at large for rendering Blacks invisible within the American story. That criticism invoked our strongest moral invectives. Recently, both Stevens and Waldman have actually used the word "fraud" to disparage the constitutional right to arms. So where is the outrage when supposed champions of civil rights blithely dismiss the struggles of the first generation of black citizens and the enduring lessons surrounding the Fourteenth Amendment's protection of the individual right to keep and bear arms?"
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New article by Prof. Winkler
"Is Gun Control Racist?" in The Daily Beast. He's writing to an audience, and tends to overstate things in ways that fit their beliefs, i.e., that one can find virulently racist literature at a gun show. Someone trying that in the places I've lived would be at risk to have the stuffing beat out of him.
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Paper on free blacks obtaining gun permits pre-civil war period
Pdf here. One interesting point made is that in Dred Scott, CJ Taney's list of "horrible hypotheticals" that would follow free blacks being recognized as citizens included that they would have the right to keep and carry arms wherever they went -- but in Taney's Maryland, free blacks did keep and carry arms wherever they went, so long as they got a permit.
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Interesting background to the Framers of the 14th Amendment
From Paul Kirchner, "Dueling with Sword and Pistol":
Prior to the Civil War, Sen. Ben Wade (R-Ohio) said something on the floor which was deemed insulting to Sen. Robert Toombs (D-Ga), and a friend told Toombs, "you must challenge the old wretch!" Toombs replied, "No, I mustn't, for that old wretch is the deadliest shot in the District. Wade and I have been out practicing many times together, and he can hit a ten-cent piece at thirty paces every time, and to tell you the truth, sir, I cannot!"
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Scalia vs. Thomas on 14th Amendment substantive due process
Josh Blackman comments on on the continuing standoff.
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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...
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New article on Privilege or Immunities
By Alan Gura, Ilya Shapiro, and Josh Blackman, online here. It'll be in Cato's upcoming Supreme Court Review.
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Leader of Deacons for Defense passes on
Robert Hicks, one of the last surviving leaders of Deacons for Defense, has died at age 81.
"But his role in the civil rights movement went beyond armed defense in a corner of the Jim Crow South. He led daily protests month after month in Bogalusa — then a town of 23,000, of whom 9,000 were black — to demand rights guaranteed by the 1964 Civil Rights Act. And he filed suits that integrated schools and businesses, reformed hiring practices at the mill and put the local police under a federal judge’s control.
It was his leadership role with the Deacons that drew widest note, however. The Deacons, who grew to have chapters in more than two dozen Southern communities, veered sharply from the nonviolence preached by the Rev. Dr. Martin Luther King Jr. They carried guns, with the mission to protect against white aggression, citing the Second Amendment.
And they used them. A Bogalusa Deacon pulled a pistol in broad daylight during a protest march in 1965 and put two bullets into a white man who had attacked him with his fists. The man survived. A month earlier, the first black deputy sheriff in the county had been assassinated by whites.
When James Farmer, national director of the human rights group the Congress of Racial Equality, joined protests in Bogalusa, one of the most virulent Klan redoubts, armed Deacons provided security."
Via Dave Kopel, at the Volokh Conspiracy.
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One debate I cannot understand
A post in the Washington Times. Key theme is conservatives (esp. "judicial activism is my key tenet" such) getting worried.
My take: if there are ever five Justices for it, they can do ANYTHING they want under due process incorporation, since it has no leg or popular history underlying it -- it's more of good result, mind the means, rulings. At least privileges or immunities incorp has a historical background, explanations by Sen, Howard abd Rep. Bingham, as some manner of originalist limitations.
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National Law Journal on reviving privileges or immunities
Article by Timothy Sandefur, here.
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Bob Cottrol on Cruikshank
Prof. Bob Cottrol comments on that ruling in today's SCOTUSBlog.
Hat tip to reader Alice Beard...
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Washington State Supreme Court on incorporation
State v. Sieyes (pdf), handed down today. Defendant was charged with possession of a handgun by a minor. The court, in an extremely thoughtful ruling (citing Joyce Malcolm, Eugene Volokh, William van Alstyne and others) rules that the 14th Amendment due process clause incorporates the right to arms and makes it binding on the States, then remands for a determination as to whether the law passes muster (which was barely briefed). The dissent argues there is no need for remand, because strict scrutiny applies and the law fails that test. The dissent has interesting references to teenager possessing arms, and serving in the militiary, throughout American history.
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Prof. Aynes' recent 14th Amendment writings
Prof. Aynes of U of Akron law school has two interesting recent articles. One, in Cardozo Law Review de novo (online version) deals with self-defense and the 14th Amendment. I liked the story of the abolitionist Senator, at a time when things were getting violent even on the floor, who made sure he was seen putting two pistols in his desk on the Senate floor. He called another Senator a liar, and when the fellow sent a friend to demand a retraction (the usual preliminary to a challenge to a duel), refused and said worse of him. He just let it be known that if anyone challenged him, he would choose rifles as the weapon, and that he was a very good shot with one. Nobody challenged him, or gave him any trouble after that.
The other, Article IV and Campbell v. Morris: Wrong Judge, Wrong Court, Wrong Holding and Wrong Conclusion", discusses a 1797 Maryland decision on Article IV's "privileges and immunities" clause. It's of importance since Fairman and Berger used it to argue against 14th Amendment "privileges or immunities" incorporation. Prof. Aynes points out some errors in their scholarship... they thought it was a ruling by Maryland's highest court, when in fact it was a ruling by a trial court (subsequently overturned, BTW), and they attributed it to the wrong judge (there were two Judge Chases in Maryland at the time) and they got the wrong holding, which they misinterpreted. Little things like that.
UPDATE: it's rather hard to classify the anti-incorporation authors, just because times have changed. The last time the issue arose, in the late 1940s, they'd have been classified as liberal. They, like Frankfurter, believed in government power, majoritarianism, and judicial restraint, in being extremely reluctant to strike down laws as unconstitutional. By the 1960s, at least as to favored rights, those were conservative positions. In the New Deal years, Justice Frankfurter was seen as quite liberal; by the end of his term in the 1960s he'd have been seen as quite conservative, although his positions had not changed (he dissented from a number of Warren Court rulings, and was responsible for inserting "with all deliberate speed" in Brown I's school desegregation command).
Today those attributes would be split up. Liberals would accept them so long as the issue was economic, and social conservatives would accept them so long as the issue was non-economic, and libertarian conservatives would not much like them in any setting.
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New article by Randy Barnett
"Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment."
It explores the many ways in which abolitionist legal thought influenced the 14th Amendment. The leadership of the 39th Congress were abolitionists to a man, and shared legal understandings that did not require explanation. We went into some of these in the Academics for the Second Amendment brief. For example, abolitionists had argued that Article IV's requirement that States turn over fugitive slaves was clear, but not legally enforceable. A State was bound by it, but no other entitle could sue to enforce the duty. To our eyes, members of the 39th Congress who argued that (1) another provision of Article IV, the privileges and immunities clause, bound the States to observe the Federal bill of rights but (2) we need a new amendment to ensure this, seem inconsistent. But to an abolitionist in 1866, there was nothing inconsistent at all.
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14th Amendment article by prof. Aynes
Just got the hardcopy, and the pdf version, online. He specifically reaches the right to arms on pp. 1319-20,
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Another new article
Clayton Cramer, Nick Johnson, and George Mocsary have an article forthcoming in the George Mason Law Review, entitled 'This Right is Not Allowed by Governments that are Afraid of the People': The Public Meaning of the Second Amendment When the Fourteenth Amendment was Ratified." It's an interesting treatment of how perceptions of the right to arms expanded and became more individualistic over 1789-1866, largely as a result of attacks on abolitionists.
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Maryland court refuses to incorporate the 2nd Amendment
News story here. The critical parts of the ruling:
"To begin, we note that there is no Maryland corollary of the federal constitutional right codified in the Second Amendment.*fn4 Furthermore, we have held previously that the Second Amendment is not applicable to the states. See Onderdonk v. Handgun Permit Review Board of Dep't of Public Safety & Correctional Services, 44 Md. App. 132, 135 (1979); see also Scherr v. Handgun Permit Review Bd., 163 Md. App. 417, 443 (2005). This is significant because it means that appellant must hang his musket, so to speak, on Heller's interpretation of the federal constitutional right. Heller filed a lawsuit in U.S. District Court for the District of Columbia seeking to enjoin the city from enforcing the bar on the registration of handguns, the licensing requirement insofar as it prohibited the carrying of a firearm in the home without a license, and the trigger-lock requirement insofar as it prohibited the use of "functional firearms within the home." Heller, 128 S.Ct. at 2788. The Supreme Court held that the Second Amendment guaranteed the individual right to possess and carry weapons in case of confrontation. Id. at 2797. As a consequence of this interpretation, the Court held that the District's ban on handgun possession in the home violated the Second Amendment, as did its prohibition against rendering any firearm operable for the purpose of immediate self-defense, if it is lawfully within the home. Id. at 2822.
Of more immediate concern for the issue before us, and ultimately fatal to appellant's argument, is the fact that the Heller Court reaffirmed the holding in United States v. Cruikshank, 92 U.S. 542 (1875), that "[t]he [S]econd [A]mendment . . . means no more than that it shall not be infringed by Congress." Id. at 553. While parenthetically noting the weakness of Cruikshank's argument regarding non-incorporation of the right, the Court found that its later decisions in Presser v. Illinois, 116 U.S. 252 (1886), and Miller v. Texas, 153 U.S. 535 (1894), reaffirmed that the Second Amendment applies only to the federal government. Heller, 128 S.Ct. at 2813. Appellant can cite to only one case subsequent to Heller in which a court has held that the right established in Heller applies against state and local governments. In that decision, Nordyke v. King, 563 F.3d 439 (9th Cir. 2009), reh'g granted, 575 F.3d 890 (9th Cir. 2009), a panel of judges in the Ninth Circuit held that the right to bear arms was a fundamental right warranting substantive due process protection through the Fourteenth Amendment. However, an en banc rehearing was granted for this case in July with the express instruction that "[t]he three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit." Nordyke, 575 F.3d at 890. After rehearing the case on September 24, 2009, the Court issued an order postponing judgment until the Supreme Court's disposition of three similar cases which had certiorari petitions pending.
. . . . . . . .
Even if the Second Amendment did apply, it would not invalidate the statute at issue here. CL § 4-203 provides that a person may not "wear, carry, or transport a handgun, whether concealed or open, on or about the person" or "in a vehicle traveling on a road or parking lot generally used by the public, highway, waterway, or airway of the State." CL § 4-203(a)(i), id. at (a)(ii). This blanket prohibition is modified by subsection b of the statute, which provides eight exceptions to the general rule outlined above. One of these exceptions is for possession of a gun by a person on real estate that the person owns or leases or where the person resides. CL § 4-203(b)(6). Thus, even if the right articulated in Heller, namely the right to keep and bear arms in the home for the purpose of immediate self-defense, were to apply to the citizens of Maryland, this statute does not infringe upon that right."
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14th Amendment incorporation and contradiction
A comment to my posting on the Chicago brief opposing cert. brought to mind something that had popped in my head in the past: a party arguing against 14th Amendment incorporation of a right can hardly avoid contradiction between its privileges or immunities and its due process positions.
Privileges or immunities: under the Slaughterhouse and Cruikshank rulings, a right is only a priv. or immun. of US citizenship if the right was CREATED by the Constitution. A pre-existing or natural rights merely GUARANTEED by the US Constitution is not a priv. or immunity of US citizenship. Examples: right to travel interstate, right to petition Congress and only Congress, because it didn't exist until created. [I disagree strongly, but those are the rulings]. So an opponent of incorporation must here argue that the right in question stems from long tradition, is a natural right, is inherent in free government (Cruikshank uses a slight modification of those words), etc.
Due Process incorporation: here the Court has ruled that certain rights (actually, almost all the ones enumerated in the Bill of Rights, and some that are not) are sufficiently important that deprivation of them is deprivation of "due process of law" (no matter how much process the person is given). The tests here include the antiquity of the right, its importance, etc., etc. So here the opponent of incorporation must argue that the right in question is of minor value, is of recent origin, certainly could not be seen as a natural right, and is nowhere near inherent in every free government.
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Nelson Lund on incorporation and Judge Sotomayor
Prof. Lund has an op-ed here, and a law review article on incorporation here.
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NY Times on incorporation
Article here. It's ... almost balanced. Of course the problem the MSM has is that while one can give a knee-jerk label of conservative to gun rights, the opposite label attaches to incorporation.
"Incorporation fell out of favor after the 1960s, but a new generation of largely liberal scholars of law and history have brought it back into the intellectual mainstream, said Akhil Reed Amar, a law professor at Yale University, who supports the process.
“The precedents are now supportive of incorporation of nearly every provision of the Bill of Rights,” Professor Amar said. “Now what’s odd is that the Second Amendment doesn’t apply to the states.”
Sanford Levinson, a law professor at the University of Texas, said he would be surprised if the Supreme Court accepted these gun cases, because some of the conservative justices on the court had scoffed at incorporation arguments in the past and might not want to set a precedent.
Professor Amar, however, argued that the justices would not only take up the case but would also ultimately vote for incorporation of the Second Amendment."
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LA Times endorses 14th Amendment incorporation
Editorial here. [link now works, thanks]
"It's tempting for supporters of gun control -- including this page -- to hope that the high court will rule that the 2nd Amendment doesn't apply to the states. That would be a mistake and would give aid and comfort to conservative legal thinkers, among them Justice Clarence Thomas, who have questioned the incorporation doctrine.
We were disappointed last year when the Supreme Court ruled that the right to keep and bear arms was an individual right, giving short shrift to the first part of the amendment, which refers to "a well-regulated militia." But we also believe the court has been right to use the doctrine of incorporation to bind states to the most important protections of the Bill of Rights. If those vital provisions are to be incorporated in the 14th Amendment, so should the right to keep and bear arms."
UPDATE: Yep, the Times screws up Justice Thomas' approach. He's not skeptical of incorporation, quite the contrary. He's skeptical of the *method* the Court has employed, and if anything his preferred method would yield a wider range of incorporation than that now used.
14th Amendment forbids States to, among other things, deny anyone the "privileges or immunities" of US citizenship, or to deny them "due process of law." Personally, I find the evidence compelling that "privileges or immunities" included the federal Bill of Rights. But in a number of 19th century cases, the Court (which was quite hostile to the idea) used a word game to make the privileges or immunities clause meaningless. So for decades it had no meaning, and the federal Bill of Rights did not bind the States, period.
Then in the very late 19th century, and far more powerfully in the mid 20th century, the Court used the due process clause to incorporate federal rights. Under that clause the Court handpicked rights and decided they were so important that they could not be denied without denying "due process" (no matter how much process the person got).
Thomas' privileges or immunities approach is broader, since it involves incorporating all bill of rights liberties (or, in some scholars' suggested formulations, all but a few ones) and doesn't depend upon the Court's judgment as to whether a bill of rights liberty is fundamental or nonfundamental. So it's hardly accurate for the Times to suggest that Thomas has problems with incorporation.
HT to Dan Gifford....
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Comment on 14th Amendment cases
Here, in the Wall Street Journal Online. It would be better if the writer didn't think of the right to arms in liberal vs. conservative lights.
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NY trial ct rules against incorporation of the 2A
Opinion in extended entry, below. Not too surprising. Lower courts can be expected to "pass the buck" upstairs on the issue. It's good that both the Chicago action and Nordyke are so far along in the process, because criminal defense attorneys have a duty to raise the issue, and generally we wouldn't want those cases to go first.
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My 14th Amendment paper is online
At SSRN, right here.
It deals with the original public understanding of the 14th Amendment, as distinct from its Congressional history. The question under this standard is -- what did the American people think they were being asked to ratify? Key to that in the legislative history of Sen. Howard's speech upon introducing it in the Senate, where he says one of the purposes is to force the States to obey the US Bill of Rights. The question then becomes did the American public know of this statement?
Pretty clearly. It was carried on the front page of the NY Times and the NY Herald (then the biggest newspaper in the country), in the Philadelphia Inquirer, and in quite a few smaller papers.
The thrust of the 14th was to strike down the "Black Codes," I found those were prominently discussed in newspapers as well. The primary focus was upon laws forbidding blacks to own land, or to enter certain occupations, and upon seizure of their firearms and those of other Unionists.
You can download the pdf by clicking on the button above the title. UPDATE: that takes you to a second page, again with the abstract, then you click on the "SSRN" button to download.
UPDATE: SSRN is undergoing database maintenance for about an hour (it's stated as 8-9 PM, I assume EST) right now.
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Reason on 14th Amendment P or I incorporation
Article here.
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Another take on the Balkanization 14th Amendment article
Clayton Cramer has agreements as to P or I incorporation of enumerated rights, but not nonenumerated ones.
Having spent a fair amount of time studying the legislative history, there are two complicating factors.
(1) When the framers of the 14th referred to the Bill of Rights, they sometimes referred to the first eight, and sometimes to the first ten, amendments.
(2) They also referred to the privileges or immunities clause as meant to include three classes of rights.
(A) Those listed as "privileges and immunities" in case law interpreting that term as used in Article IV, §2 of the original Constitution. There was a circuit opinion by Bushrod Washington that talked of these in very broad and mostly economic terms -- the right to practice a lawful profession, to own and dispose of property, etc.. This was relevant because some Black Codes forbade blacks to engage in certain businesses or to own real estate inside city limits. These were, in the Bill of Right sense, nonenumerated rights.
(B) Rights protected against Federal interference by the original Constitution, e.g., the right to petition for habeas corpus, the prohibition against ex post facto laws.
(C) Liberties protected against Federal interference by the US Bill of Rights. Some Framers insisted that these were meant to bind the States under Article IV, §2, but that provision had no allowance for Congressional enforcement, so it remained a nonbinding moral duty only. (The view in modern case law is that Article IV, §2 only prohibits discriminatory State action against citizens of other States, in relation to "privileges and immunities" of State citizens, but in 1866 there was a very respectable body of opinion otherwise. This had been a staple of antislavery thought before the Civil War, arguing that the Article IV duty to turn over escaped slaves was unenforceable by Congress, and that the fugitive slave acts were unconstitutional).
Update: a respectable argument can be made (and was in fact made by the early commentator William Rawles) that the 2A applies to the States. But the Supreme Court went the other way in Barron v. City of Baltimore, and in many following cases. During the Congressional debates on the 14th, an opponent argued that it wasn't needed because the Bill of Rights already applied to the States (he was a former NY judge, BTW). Sponsor John Bingham had to hunt up a copy of Barron and read it into the record.
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Balkanization and 14th Amendment incorporation
Over at Balkanization, David Gans and Doug Kendall discuss the issue.
Hat tip to reader Joe Olson....
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Paper on gun control, race, etc.
I actually found it good, on a quick skim, if you allow for what the author has to do to get it published. The core of it deals with how blacks were disarmed under the Slave Codes and then the Black Codes, how the 14th Amendment was meant to stop that, and didn't, how early in the 20th century blacks formed militias for defense against mobs, and how armed resistance was used in the civil rights movement. Oh, and how the California gun controls adopted in the 1960s were specifically aimed at the Black Panthers, and meant to give grounds to arrest and search them.
OK, now try finding a publisher for that in academia! So, to entice potential publishers, you:
1. Add a provocative title. Great job, BTW. I was always lousy at that.
2. Make it sound new by adding a bunch of buzzwords. "Mythology" is great. Everyone likes to be able to think were smart enough to see thru a myth that others believed in. "Community-protective autonomy," "Identity-protective Reform,"
3. Work in race whenever possible. "In a frightening shift, the phenomenon of blacks self-arming in the last two decades has been another instrument of oppression rather than liberty. As gun-related violence in America has increased, African Americans in urban communities disproportionately feel the devastation. Instead of African Americans looking down the barrel of white guns, the perpetrators of gun oppression are other African Americans.216 The racialized rhetoric and mythology of the Second
Amendment, however, have rendered white America complicit with respect to this crisis."
4. Throw in at least one passing claim that NRA is sorta racist. (If you check the fn. to that, it's a claim that NRA at some point showed images of the Los Angeles riots, and those featured Black rioters.).
But if you ignore what was inserted to attract publishers, rest is pretty good. The linked page has the abstract, and if go to the bottom you can download the paper itself in .pdf.
hat tip to Joe Olson..
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14th Amendment and the Colfax Massacre
Charles Lane continues to guest blog at Volokh Conspiracy, on the subject. His latest post, recounting the history of the US Atty who brought the Cruikshank prosecutions (and got fired over it) is here .
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Interesting discussion on Cruikshank and 14th Amendment
Over at the Volokh Conspiracy. It features guest blogging by Charles Lane, author of The Day Freedom Died: The Colfax Massacre, The Supreme Court, and the Betrayal of Reconstruction. The Colfax Massacre is what gave rise to Cruikshank.
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Study of racist roots of gun control
From GeorgiaCarry.org comes "Disarm the Negro: the Racist Roots of Georgia Gun Control" (pdf file). Very interesting data on the 1906 Atlanta race riots, where mobs attacked black neighborhoods, the residents fought back (in an early form of straw man sales, light skinned residents bought guns for their neighbors), and police and the state militia responded with house to house searches for guns. The Atlanta Journal ran an editorial entitled "Disarm the Negroes," endorsing the searches with comments such as "Should a collision between the races occur, it would be too late to deplore the fact that the negroes had been permitted to arm themselves." The study also probes why GA law bans carrying at public assemblies, and notes the law was enacted after night riders attacked blacks who were travelling to a ... public assembly, and they fought back.
It also shows how newspapers cheered that fact that facially race-neutral handgun permit laws had been enacted, because they were being applied so as to selectively disarm black citizens.
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Anit-confiscation bill and its 14th Amendment implications
Dave Kopel has the scoop. (Via the the Bitchgirls).
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An interesting observation by Prof. Lund
I was reading Prof. Nelson Lund's piece, "Federalism and the Constitutional Right to Keep and Bear Arms," Publius 63 (Summer 2003): he observes that the 2nd Amendment is in a unique position vis-a-vis the 14th Amendment.
The Supreme Court early on held that the federal Bill of Rights did not bind State governments (and in fact the early State governments often penalized freedom of expression -- look at the Slave Codes -- and some had established churches for a time). Then came the 14th Amendment (1868) which forbade the States to deny the "privileges and immunities" of US citizenship, or to deprive citizens of life, liberty or property without "due process of law." Two different prohibitions.
The Supreme Court (as I note below) quickly eviscerated the "privileges and immunities" clause, but in the 20th century began binding States to follow specific Bill of Rights provisions by holding that laws restricting freedom of speech, jury trial in criminal cases, etc. involved deprivation of "due process of law."
Prof. Lund's observation is that the Court's only rulings on 2nd Amendment / 14th Amendment come in 19th century cases over "privileges and immunities." There simply is no Supreme Court ruling on whether a State deprivation of the right to arms denies "due process of law." This makes the 2nd Amendment quite unique. There are "due process" rulings on the other provisions of the Bill of Rights -- expressly holding that deprivation of jury trial in civil cases, and the right to grand jury indictment in criminal ones, do not deny "due process," and holding that deprivations of the remainder of the Bill of Rights does deny it. The 2nd Amendment stands alone in that the Supreme Court has never made a "due process" call one way or the other.
[Update] As the LegalEagle notes, the 3d Amendment (forbidding quartering of troops in private property) is a bit peculiar: it's generated little controversy, due to the invention of barracks.
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Apologies ... from the wrong party
The Senate is expected today to pass a resolution of apology for not having passed federal anti-lynching legislation when it was most needed. Apologies certainly are in order, but Congress isn't the party which needs to make them. It's the Supreme Court which owes the apology.
In 1870, Congress passed the Enforcement Act, to enforce the 14th Amendment's mandate that no state violate the privileges and immunities of US citizenship. The Act made it illegal, inter alia, to "injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the constitution or laws of the United States, or because of his having exercised the same..." The penalty was imprisonment for up to ten years.
In 1875, the Court ruled in U.S. v. Cruikshank that lynching a person (actually, a hundred people) did not deprive anyone of the privileges and immunities of national citizenship. (It's relevant to Second Amendment history in that the Court also ruled that disarming people and preventing their assembly were not violations of the 14th Amendment, either). Here's the language. Bear in mind that the Court was playing a word-game along these lines: (1) Privileges and immunities of State and of national citizenship must be different things (why?); (2) If a right existed beforethere was a national government, it must not be a P&I of national citizenship; therefore (3) the more fundamental, and the earlier a right can be seen as existing, the less likely it is to be a federal P&I protected by the 14th Amendment. Here's what the Court held as to the right to life:
"The third and eleventh counts are even more objectionable. They charge the intent to have been to deprive the citizens named, they being in Louisiana, 'of their respective several lives and liberty of person without due process of law.' This is nothing else than alleging a conspiracy to falsely imprison or murder citizens of the United States, being within the territorial jurisdiction of the State of Louisiana. The rights of life and personal liberty are natural rights of man. 'To secure these rights,' says the Declaration of Independence, 'governments are instituted among men, deriving their just powers from the consent of the governed.' The very highest duty of the States, when they entered into the Union under the Constitution, was to protect all persons within their boundaries in the enjoyment of these 'unalienable rights with which they were endowed by their Creator.' Sovereignty, for this purpose, rests alone with the States. It is no more the duty or within the power of the United States to punish for a conspiracy to falsely imprison or murder within a State, than it would be to punish for false imprisonment or murder itself."
What makes Cruikshank particularly appalling was that it arose out of the worstracial violence in American history. Sheriff Cruikshank had been a leader of a mob that attacked a group of freedmen occupying a courthouse, burned the courthouse to force them out, disarmed them and murdered over a hundred of them. Here's an account by one of the mob: " the whites slaughtered many of the negroes as they rushed from the burning building, and many were ridden down in the open fields and shot without mercy. Those lying wounded on the court house square were pinned to the ground by bayonets. [About 48 were taken prisoner, and some of the mob were tasked with escorting them to jail.] .... When I got to the garden," continued Mr. Tanner, "I heard Luke Hadnot say, 'I can take five,' and five men stepped out. Luke lined them up and his old gun went off, and he killed all five of them with two shots. Then it was like popcorn in a skillet. They killed those forty-eight." Under the Supreme Court's ruling -- this was no violation of the 14th Amendment and could not be federally prosecuted.
Cruikshank has never, BTW, been overruled. The only way our Bill of Rights liberties (not to mention more fundamental rights such as that against being murdered by State functionaries) became applicable to the States was via the 14th Amendment's due process clause, which the Court only began vigorously to apply in the 1960s. So for virtually the entire period for which the Senate is apologizing, it would have done it no good to pass anti-lynching legislation, since Supreme Court caselaw had held that it exceeded Congressional powers.
Apologies are in order ... but they shouldn't come from the Capitol, but from a building across the street. I'm sure the All Writs Act would have something covering it.
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An interesting read
Robert F. Williams, "Negroes With Guns"
Williams was a local civil rights leader during the desperate and dangerous times of the early 60's. At one point the tiny NAACP chapter to which he belonged proposed to disband. He objected, so the others elected him president and then all but one resigned, leaving Williams head of a one-man chapter. A veteran himself, he focused on recruiting other black vets and soon rebuilt the chapter.
When the Klan came shooting, it soon found that its targets shot back. A Klan cavalcade (sort of a mass drive-by shooting) came to shoot up the home of the vice-president of the chapter, and found a number of members in sandbagged positions with rifles. After a gunfight, the Klan abandoned that approach (and the City Council, which had never done so before, required the Klan to get a permit for future appearances -- this was in 1957, remember). The book has pics of his group with their arms, of headlines ("CITIZENS FIRE BACK AT KLAN"). It's also worthwhile as a reminder of just how bad things really were back then -- a 7 year old sent to a reformatory for 12 years because a white girl had kissed him on the cheek, people murdered and raped with complete legal impunity, Williams himself forced to flee the country by a false kidnapping charge, government officials alternately trying to bribe him and threatening to murder him, etc. Anyway, here's a brief passage that is very interesting:
"Luther Hodges ... was the governor of South Carolina at the time. We appealed to him. He took sides with the Klan.... Then we appealed to President Eisenhower but we never received a reply to our telegrams. There was no response at all from Washington.
So we started arming ourselves. I wrote to the National Rifle Association in Washington which encourages veterans to keep in shape to defend their native land and asked for a chapter, which I got. In a year we had sixty members. We had bought some guns, too, in stores, and later a church in the North raised money for us and we got better rifles. The Klan discovered we were arming and guarding our community. In the summer of 1957 they made one big attempt to stop us. An armed motorcade attacked Dr. Perry's house, which is situated on the outskirts of the colored community. We shot it out with the Klan and repelled their attack and the Klan didn't have any more stomach for this type of fight. They stopped raiding our community."
BTW, (1)that's by no means the only time Williams and his friends had to use firearms to defend themselves, and (2) there was no sense calling the police, since two police cars were in the Klan cavalcade!
The intro and forward go into the debates between Williams and Martin Luther King over self-defense in the late 1950s. They suggest that King's position actually agreed with Williams (self-defense was necessary to prevent terror from destroying the civil rights movement, was moral, and it was necessary to self-respect), and that he rather created a straw man by implying that Williams wanted to use force offensively (based on a slip of the tongue, when Williams was speaking angrily of a case where a white who had raped a black woman in front of many witnesses was still acquitted).
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Akhil Amar and the right to arms
In a symposium hosted by the American Enterprise Institute, Prof. Akhil Amar of Yale (probably the top 14th Amendment expert in the world) outlined his view of the right to arms. I've got video of the event, and will be posting a page on it soon.
Amar's thesis:
1. The right to arms starts out as an individual but rather "communitarian" right. The focus of the framers is on the citizenry as a whole being armed, and their ability to topple any possibly tyranny. The community acting as a body, probably under the guidance of state governments.
2. The 14th Amendment framers had a somewhat different viewpoint. The former Confederacy was disarming blacks and union veterans to make them vulnerable to Klan terror. "When guns are outlawed, only the Klan will have guns." They wanted citizens armed so as to be individually able to defend against violence, to defend their homes, even if the criminal violence came from State governments. Thus the 14th converted a communitarian sort of right into the quintessential individual right.
Ah--here's Amar's great book. Best right to arms discussion is around p. 264. "But a gun was far more than a badge [of freedom]. Even free blacks (to say nothing of slaves) had suffered unspeakable violence ... and in the wake of Emancipation, many southern governments forbade gun ownership among blacks but not whites. Blacks immediately sensed the grave threat posed by this aspect of the slave codes and took quick action....One of the core purposes of the Civil Rights Act of 1866 and of the Fourteenth Amendment was to redress the grievances of this and other petitions, outlaw the infamous Black Codes, and affirm the full and equal right of every citizen to self-defense. Thus in introducing the Civil Rights Bill ... Lyman Trumbull explicitly took aim at a Mississsippi law that prohibited 'any black or mulatto from having firearms.'"
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14th Amendment: "privileges and immunities"
Section one of the 14th Amendment provides:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.
For me, the meaning is straightforward. Background: the infamous Dred Scott case of 1857 had ruled that free blacks could never be US citizens. The opinion repeated uses "privileges and immunities" to describe citizen's rights. It begins,
"The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution."
The opinion argues that the creators of the United States could not have intended blacks to be citizens, because that would give them the "privileges and immunities" of citizens. And in listng those P&I the opinion goes right down the bill of rights, including the Second Amendment:
More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. 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.
Sounds like a slam-dunk. The 14th Amendment had a clear target: Dred Scott. By providing that anyone born or naturalized in the US was a citizen, it eliminated that decision's racial barrier. It also changed in a more complex way the concept of citizenship: national citizenship became primary (Dred Scott had also said that a person could be a citizen of a state without being a citizen of the United States: no more would that be the case). And it forbade States to deny the "privileges and immunities" of US citizenship.
From where else but their target Dred Scott would the drafters of the 14th have taken "privileges and immunities?" Dred Scott says the P&I are the Bill of Rights and other similar liberties.
Of course, the Supreme Court had to have its say...
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Kopel: "The Klan's Favorite Law"
Dave Kopel's latest is an article in Reason entitled "The Klan's Favorite Law: Gun Control in the Postwar South." A few excerpts:
After the Civil War, the defeated Southern states aimed to preserve slavery in fact if not in law. The states enacted Black Codes which barred the black freedmen from exercising basic civil rights, including the right to bear arms. Mississippi's provision was typical: No freedman "shall keep or carry fire-arms of any kind, or any ammunition."
. . . .
The Special Report of the Anti-Slavery Conference of 1867 complained that freedmen were "forbidden to own or bear firearms and thus.rendered defenseless against assaults" by whites. Or as a letter printed in the Jan. 13, 1866 edition of Harper's Weekly observed: "The militia of this county have seized every gun found in the hands of so-called freedmen in this section of the county. They claim that the Statute Laws of Mississippi do not recognize the Negro as having any right to carry arms."
. . . . .
Congress' "Report of the Joint Committee on Reconstruction" set forth the factual case for the need for a 14th Amendment to protect the liberties enumerated in the federal Bill of Rights. At the Committee's hearings, General Rufus Saxon testified that all over the South, whites were "seizing all fire-arms found in the hands of the freedmen. Such conduct is in clear and direct violation of their personal rights as guaranteed by the Constitution of the United States, which declares that 'the right of the people to keep and bear arms shall not be infringed.'"