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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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I disagree (but I'm NOT a lawyer) that the 2A recognizes the RIGHT to a militia. It is merely a justification as to WHY the right to keep and bear arms exists. Here's my interpretation of the 2A as paraphrased into modern day English and, I believe, supported by the Heller decision:
"Because a well-equipped and well-practiced (=well regulated) military eligible citizenry (=militia) is necessary to keep a nation free, the right of the citizenry (includes legal immigrants but excludes felons) to own and carry small arms (excludes explosive devices) shall not be infringed."
Any one disagree?
Thanks for framing the incorporation issue so succinctly.
Personally, I am dumbfounded that someone would argue a natural, human, individual right according to US constitution and a huge body of historical law doesn't apply to the states.
You might as well say your right to "Life, Liberty and the Pursuit (not attainment) of Happiness" only benefits residents of DC. Or maybe when you are in national park. Silly on its face, sillier when you consider the US Constitution (inlcuding the BoR) is incorporated by reference in most state constitutions, I believe.
Our government is granted powers.
These powers are granted by the People.
No one in government is punished for the "lawful" possession and use of any weapons in its arsenal, from two-edged daggers and dirks, firearms, squad weapons, tanks, cannons, warships, planes, bombs and atomic bombs. No one in the U.S. government (military) has ever been charged with unlawful possession of a nuclear device.
How can the People grant powers it does not itself possess?
Civil Rights are those retained by the People to prevent tyranny and abuse by the government it has created.
After the 9th Circuit's en banc review, the SCOTUS will take up an issue that is no longer split by the Circuits; it will unanimously be 0-3 against us.
The SCOTUS will carve out the smallest salient question it can answer, and I believe they will rule in favor of the government's ability to regulate.
The question still comes down to how Kennedy will hold.
I too have a problem with the language of "priveleges". However, I believe the language is indicative of exactly what the authors intended.
"Immunities" should cover all unalienable rights as guaranteed from government violations. The language of immunities to me, indicates that the immunities of the citizen against government violation are intact and cannot be restricted by other governmental levels. Taken together, Priveleges and Immunities, would appear to cover both federal governmentally bestowed priveleges and unalienable natural rights that predate the constitution and were guaranteed from governmental interference (immunities).
I clicked on the wrong Comments link and posted under Browning. Duh!
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If it comes FROM government, it is NOT a right. The term is often misued.
Rights come from God and are inalienable, cannot be taken away or given up.
Privileges and immunities come from (and can be taken away by) government.
If the court rules it is a "right" created by the constitution, or out their arses, then it is NOT a right but a privilege.
Tiocfaidh ar la!
I tend to think "immunities" are immunities from government restriction. Those immunities are the result of our unalienable whether bestowed by God or nature.
If the authors had meant only priveleges, that is what they said. But they didn't, they went further to proclaim that the immunities applicable to unalienable rights were also protected at all government levels.
left out "rights" and "would have". You can see where they go.
A question for legal minds. The 2nd amendment recognizes the right to arms, and the necessary militia. Could this already be a prohibition against the states to the denial of rights?