The Supremes are considering another 2nd amendment case which might have far reaching consequences (in a good way) on this particular battle front. George Will has a good column this week which takes a look at the history of the fight and what the implications of McDonald v Chicago might be.

It probably will result in a routine ruling that extends a 2008 decision and renders dubious many state and local gun-control laws. What could — but, judging from the justices’ remarks during oral argument, probably will not — make the ruling momentous would be the court deciding that the two ordinances at issue violate the 14th Amendment’s “privileges or immunities” clause. Liberals and conservatives submitted briefs arguing, correctly, that this clause was intended to be a scythe for slicing through thickets of state and local laws abridging fundamental liberties.

This isn’t a simple issue for those who haven’t followed this particular argument closely, but after Heller opened the door for the debate, it does’t boil down to a matter of whether or not the 2nd amendment is an individual right (SCOTUS has already determined it is) but rather on which constitutional grounds the finding is based. First they may have to speak to whether or not the 2nd amendment is one of the fundamental rights which are incorporated down to the states, or whether the states still retain the ability to restrain those rights with impunity.

But second, they would have to identify which aspect of the 14th amendment is to be used as the basis for the finding. Will it be the guarantee that no state shall deny liberty “without due process of law” or will they dig up the long abandoned “privileges or immunities” clause?

To the drafters of the 14th Amendment, the phrase “privileges or immunities” was synonymous with “basic civil rights.” But in 1873, the court held that only some of the rights enumerated in the Bill of Rights restrict states by being “incorporated” into the 14th Amendment’s “due process” clause.

Since 1897, the court has held, with no discernible principle, that some rights enumerated in the Bill of Rights are sufficiently fundamental to be “incorporated” but others are not. This doctrine bears the oxymoronic name “substantive due process.” Substance is what process questions are not about.

If the court now “incorporates” the Second Amendment right via the “due process” guarantee, that will be progress because it will enlarge the sphere of protected liberty. And even Justice Antonin Scalia, who recognizes that “substantive due process” is intellectual applesauce, thinks it is too late to repudiate 137 years of the stuff. Still, three points argue for using the “privileges or immunities” scythe against the two gun ordinances.

Early indications from observers seem to indicate that they will back down and go with the due process argument. This is good news to some conservatives, believe it or not, who fear that liberals would take a finding of privileges or immunities and run with it to “discover” all sorts of other imagined rights, covering things like health care, welfare, or the continued, vigorous lifestyle of the salt marsh tit mouse.

Stay tuned to see how good George Will’s crystal ball is. We should find out before too long.

JAZZ SHAW, Assistant Editor
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DLS
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DLS
6 years 6 months ago
“But second, they would have to identify which aspect of the 14th amendment is to be used as the basis for the finding.” Yes, this is what we’re awaiting. That gun rights are individual rights hasn’t been open to (serious) question; but this case isn’t limited to an “extreme federal-individual” case where the right even is explicitly stated in the Constitution as not to be infringed (at least, by the federal government, but if it is the right of every US citizen, no “Jim Crow” state or local law may taken it away, either — that is the main point… Read more »
tidbits
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tidbits
6 years 6 months ago

Well, I am delighted to hear that George Will agrees with the piece I posted roughly a week ago on my site….Perhaps he read it, nah. http://elijahssweetespot.com/?p=152 .

merkin
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merkin
6 years 6 months ago
Heller has been one of the more interesting of the Robert’s Court. Here we have a court where four of the members have been appointed out of the current conservative narrative of opposing judicial activism, opposing legislating from the bench, basing rulings on the original intent of the authors of the Constitution, supporting states’ rights against an intrusive federal government and not to mention the long standing definition of a conservative judiciary, not overthrowing long standing precedent. And in one series of decisions they, together with Kennedy, are willing to go against all of this to accomplish a possibly desirable… Read more »
DLS
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DLS
6 years 6 months ago

Tidbits, I don’t share your suspicion of Scalia’s willingless to be expansive otherwise, if it suited him or those like him politically. But it’s worth considering. Who knows, maybe he’s recoiling from how many have reacted (negatively) to the Citizens’ United ruling.

tidbits
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tidbits
6 years 6 months ago
DLS, Your point about the reaction to Citizens United is worhty of consideration. It has even rekindled the idea of court-stacking as you probably know. While alluded to but not elucidated in my piece, Scalia has for years tried to carve out a middle ground between substantive due process and broad based privileges and immunites that would allow him to advance certain causes that are dear to him without embracing substantive due process or privileges and immunities. The real bombshell was that he openly embraced substantive due process after decades of condemning it while ceding grudgingly that it was the… Read more »
DLS
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DLS
6 years 6 months ago

While you’ve effectively warned me in advance of my hopes for a clarity from Scalia (who is on a skewer in this instance) and the other Justices in clarity and demarcation of federal versus state-local power as well as jurisdiction where there is possible “overlap” (and federal supremacy issues) of direct federal-citizen and state-local-citizen laws and rights (including “soft” implicit rights through entitlements and such).

I have an interest in this subject and resolution of the possible overlap problem this case permits.

russnj
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russnj
6 years 6 months ago

Finnaly a way to be safe whare when i go, to peotect my loved ones. And not just hoping a ganster will take pitty on us as he robs and beats us almoat to death

New Cat
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New Cat
6 years 6 months ago

I don’t have a dog (at least when it comes to guns) in this race but I sure am learning and enjoying this discussion.

DLS
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DLS
6 years 6 months ago
I’m not a former(?) judge like Tidbits or an attorney, but interested in this for other reasons. The federalism issue is the setting of boundaries and limits that the state-local and federal government share. If the federal right here, extremely protected (“shall not be infringed”) is found to be part of something more general (why I am curious about it), there are all kinds of other rights (anything that is a legal right, meant to be enjoyed by citizens) that the states and localities could not interfere with. We can envision a “cascade” down from gun rights to others that… Read more »
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