Incorporation By Due Process Or Privileges And Immunities

[justashooter 430]

not really my prefered writing style, but something i had to do, and thought might be of interest by way of content.

Incorporation By Due Process Or Privileges And Immunities.

Which Is In Our Interest?

An Exploratory Narrative

This week the Supreme Court of the United States heard the oral arguments in the McDonald vs. Chicago case, in which a petitioner sought confirmation of his constitutional right to own a firearm in a city that does not recognize the 2nd Amendment as an individual right. It is certain that SCOTUS will incorporate the individual right stance it affirmed last year in Heller v DC, but exactly how SCOTUS will incorporate remains in question. Recently I have engaged in personal study to increase my understanding of the importance of this question.

At issue is whether SCOTUS will accept the argument the principle attorney is presenting, or will choose a less risky resolution. The plaintiff’s attorney, Alan Gura, is suggesting that the Privileges and Immunities clause of the 14th Amendment is the appropriate basis for incorporation, while other amicus are suggesting the Due Process clause is more relevant. A win on basis of Privileges and Immunities would be much more empowering than a win on Due Process rationale, as is made clear to me in re-reading the wording of the first section of the 14th Amendment. I noted in the text provided by the Cornell University Law School Legal Information Institute that the 14th Amendment states that privileges and immunities cannot be regulated, in contrast to due process, which is, in essence, regulation:

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.

My interest in the case goes back over a year to its first mention as a candidate for SCOTUS consideration. As a lifelong shooter, dedicated gunsmith, and licensed gun dealer I have advocated for the elimination of gun control laws on a federal, state, and local level because they unnecessarily limit the hobby/business, and they just don’t make sense. Everybody knows that guns don’t commit crimes, people do. When a drunk driver runs someone over and kills them we don’t ban cars, do we?

Unfortunately, the same political crowd that gave us our first gun control laws in the interest of disarming Blacks and Chinese in the later part of the 19th century is still in the game, and all Americans suffer for their actions. Everyone with a television or a newspaper knows that Heller and McDonald provide a mechanism and a hope for removal of unreasonable restrictions on gun ownership, but the opportunities inherent in McDonald are not widely realized. Everyone should understand what is at stake in this circumstance. This case is not just about gun related rights, it is about all civil rights, and the ability of State level government to deny or regulate them. Looking for information on this question, I discovered that Alan Gura is our front man in this fight.

Alan Gura, representing Gura & Possessky before the bar and in association with the CATO Institute, a libertarian think tank dedicated to the traditional American principle of limited government, is presenting a P&I based case on behalf of McDonald. Gura believes that the 2nd Amendment is an unlimited and individual right that predates the Constitution and the Bill of Rights, and he is seeking the court’s acknowledgement. Previous SCOTUS cases including Slaughterhouse, Cruishank, and Presser have held to the contrary, though, so invalidating them is of great importance in obtaining a strong 2nd Amendment right.

He sees these cases as in direct conflict to the Constitution, and civil rights in general. Slaughterhouse, a case heard in 1873, in which the plaintiff was protesting a state protected monopoly on butchering, resulted in a SCOTUS decision that limited P&I rights to those inherently provided by United States citizenship. Gura points out that the majority of our rights are not conferred by citizenship, rather, that they exist independent of government, whether they be enumerated or unenumerated.

In a Nov 29, 2009 posting on the website chicagoguncase.com Gura makes his rationale for incorporation under P&I quite clear, he raises the issue of a need for an unencumbered right that is only obtainable thru recognition of a P&I basis:

…some people wonder why our Privileges or Immunities argument needs to define that provision any broader than the actual Second Amendment right at issue. The answer is dictated by logic. While we cannot define the full scope of every right secured by the Fourteenth Amendment, and have no interest in doing so, neither can we show that the right to arms fits within the Privileges or Immunities Clause without first discussing what sort of rights are embodied by that provision. It’s worth mentioning that self-defense is a natural pre-existing right, and consequently the right to arms would be a Privilege or Immunity of American citizenship even if the Second Amendment did not exist.

In my opinion, Gura is pursuing a course based in sound logic. Individual rights cannot be codified in their entirety. There are too many variables of circumstance for any law to consider and define. It is enough to define what is against the law, it is impossible to define what is above the law; our fundamental and natural civil rights.

Reading Gura’s various statements in regard to this case has caused me to re-evaluate my own conceptions of my civil rights. We are taught in school that the Bill of Rights grants us protections from the government. In truth, it merely recognizes natural rights we have, and forces government to acknowledge these. In light of this understanding, a P&I basis for the McDonald case seems quite logical. This basis is in stark contrast to that espoused by the majority of certain amicus filers that I found had attached to this petition.

The NRA has joined the McDonald case and is presenting an argument for incorporation that is focused on the Due Process clause of the 14th Amendment. Their basis is contemporary, and has no existing case law to overcome, so would seem a more likely position to espouse. Unfortunately, a Due Process based incorporation would allow for regulation that could be defined by the individual States on a case by case basis, and would result in a legal quagmire that would take years to unravel.

Ralph Weller, in the Gun News Daily, summarizes the NRA position, “suffice it to say using a proven court argument to incorporate the Second Amendment would certainly be more prudent”. He goes on to indicate that the NRA is concerned about the risks involved in Gura’s logic, and believes that the SCOTUS pre-trial decision to give the NRA’s representative 1/3 of the oral argument period is a clear message from SCOTUS that they would rather hear Due Process argument than Privilege and Immunity.

Personally, I am disappointed to see that the NRA has been used to provide a route by which the SCOTUS can sidestep the issue of the question of our natural, pre-existing rights. I expect that a Due Process decision would result in legal arguments spanning decades over what is a “reasonable restriction”, even if the court decides to incorporate by Due Process with a stated “strict scrutiny” requirement. If a lesser burden such as “intermediate scrutiny”, or even worse, “compelling state interest” is attached, then “reasonable restriction” has no bounds.

Weller does inform, though of the risk we face if the argument is based solely on P&I. He reminds that this case is a stepping stone, by which the 2nd Amendment in respect to individual right may be incorporated upon the several States. He encourages us not to “bet the farm” on one roll of the dice. To understand how the case will likely be decided I read the Justices comments in a transcript of the oral argument, which is available online at docstoc.com. To confirm my understanding, I looked for an authority on the interpretation of SCOTUS oral arguments.

The reactions of the Justices to the CATO and NRA arguments on March 2, 2010 were documented in text by the court, and are presented in summary with quotes by Lyle Denniston on the SCOTUSblog. Mr. Denniston is an American legal journalist, professor, and author. He has reported on the SCOTUS for over 50 years, and has written for numerous legal journals and popular publications.

Denniston’s recounting of the questions asked by the Justices and the points they made was not surprising, given past performance of the court and the reach of the case. Denniston reports that the Justices seemed by their questions to be inclined to incorporate on basis of Due Process, with intermediate scrutiny. Their response to Gura’s discussion of P&I was not favorable, and they seemed reluctant to overturn Slaughterhouse, though it had been described as “deficient” in the arguments and ruling related to Heller in 2008.

He expects the court to rule on the case with an affirmation of a “core right”, and to allow the States to impose restrictions in specific, remarking that “the notion that the Second Amendment right restricting state and local gun laws would not be an absolute right had significant appeal, it appeared”. Denniston continues to remark that the court was firm in their belief that the 2nd Amendment describes an individual right, but that they were not willing to define or expand upon it during the oral arguments.

Denniston’s re-telling of the oral arguments is disappointing to me, but not unexpected. I cannot expect the High Court to overturn case law on which a wide variety of statutes are based, even if it is the right thing to do. Inertia can be seen as a form of stability, even if it is off balance. I see the court’s acceptance of due process as a first step, but was hoping for strict scrutiny, so that any laws generated or sustained under Due Process would have to be proven to be the least restrictive, and invoking a mechanism to achieve an end that cannot be accomplished by any other means.

Denniston’s summary of the oral arguments, amplified by my own reading of the original text, gives us insight into who each of the Justices are, with the exception of Clarence Thomas, often called “the silent Justice”, because he never speaks during oral argument. Each Justice revealed their own schema by their questions, and revealed their intent with regard to McDonald. The result is already predicted as a “minor defeat snatched from the jaws of victory”.

I believe that it is clear from my research that the best interest of the people, in terms of protection of their rights, would have been an open acceptance of the Privileges and Immunities argument, so resulting in recognition of a the principle of enumeration of unencumbered rights. It is also clear to me that the existing system of jurisprudence is dependent upon stability, even at the cost of justice. There is just too much at stake in terms of legal precedent to allow P&I to be revived under McDonald.

It is difficult for me to accept that an opportunity for an increase in personal freedoms has come and gone. What I did gain by examination of the case logic is an understanding of the machinations of government. I now understand that I must expect that the SCOTUS will not act in the furtherance of liberty, choosing instead, the stability of the existing legal structure, and thereby the Nation.

Works cited

Legal Information Institute. Cornell University Law School. The 14th Amendment. internet

Alan Gura. We Get Questions. chicagoguncase.com Nov 29, 2009. internet

Ralph Weller. Gura, NRA, and the McDonald Case. Gun News Daily 13 February, 2010. internet

SCOTUS. McDonald Oral Arguments. Docstoc.com. internet

Lyle Denniston. Analysis 2d Amendment Extension Likely McDonlad v Chicago, 08-1521. SCOTUSblog. March 2, 2010. internet

[Peikko 1,575]

Your preferred writing style?

Is VJ an online college now? Ewok, you need to hike up your fees mate!