Historical Analysis of Rights and Politics, and Grand Hypocrisy from the NAACP
Historical Analysis of Rights and Politics, and Grand Hypocrisy from the NAACP.
Many a gun owner will declare that his sovereignty is strengthened by his very ability to keep and bear arms. Freedom certainly is not derived from the muzzle of a gun; nevertheless, armed individuals are the Constitutes of an armed populace, which is the last and ultimate safeguard against tyranny at large. History is abundant with examples that tyranny most easily stems from the disarmament of the people. The example closest to the heart of Americans was the American insurrectionists who fought the British and won their independence. Part of their newly won independence was canonized in the enumeration of the right of the people to keep and bear, which further ensured a general militia in order to secure a free State.
Alas, the descendants of our Forefathers would themselves use the techniques of disarmament to enslave a people. The Civil War no more freed the Negro than the Space Age made every person a rocket scientist. Color people, though legally free according to Federal guidelines, were still considered subordinate by Southern State laws. Predictably, these famous “Black Codes” included that no color person be armed (depriving him of property rights and the ability to defend himself).
When the Constitution was ratified, the anti-Federalists insisted on a Bill of Rights. This Bill of Rights was a safeguard against Federal encroachment on liberty. It was doubted whether any one of the three branches of Federal government would indeed remain limited. There were even doubts that a Federal Supreme Court would uphold the Constitution or the Bill of Rights. There was much less commentary by the anti-Federalists on the whether local State government would impose the threat to liberty that the Federal government imposed. Some early commentators wrongly viewed that “[the Bill of Rights] command [was to] bind state governments, contra the orthodox public understanding of those who drafted and ratified the Bill of Rights- orthodox honored in John Marshall’s canonical 1833 opinion in Barron v. Baltimore. (1)”
In Barron v. Baltimore, it was held that the Bill of Rights did not include the 'No State shall…' language, and therefore it did not bar State action. If it were meant to act as a barrier against State action, then the drafters of the Bill of Rights would have used similar language used elsewhere in the Constitution to bar State action, according to the Supreme Court. Needless to say, acts by Congress in the aftermath of the Civil War to free negroes was kept in check by the Supreme Court decision on Barron v. Baltimore. Enter the Fourteenth Amendment.
The drafters of the Fourteenth Amendment respected the Constitution, and therefore wished to use Constitutional mechanisms to over-ride Barron v. Baltimore. They amended the Constitution to broaden the scope of the Bill of Right. John Brigham, the chief creator of the Fourteenth Amendment, had these concerns in mind:
“[John Brigham’s] February 28 speech mentions the Bill of Rights a dozen times… He ask[ed] why his opponents are
and quotes Barron v. Baltimore to answer claims that the Federal Bill of Rights already is enforceable against the States. Brigham ask[ed],
Originally Posted by Brigham
and describes the proposed amendment as
Originally Posted by Brigham
He sums up the issue as:
Originally Posted by Brigham
The Fourteenth Amendment states, in part, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” A quick note about the meaning of ‘privileges or immunities.’ There is no question that this phrase was synonymous to ‘rights or liberties,’ and in fact dictionaries from the time period used both terms as synonyms for liberty. (3)” (Ex. “In reaction, the Fourteenth Amendment reflected the broad common usage of “privileges or immunities,” including the pre-existent natural rights of the sort identified in Corfield and the personal rights guaranteed by the Bill of Rights. (4)”
Originally Posted by Brigham
In short, the Fourteenth Amendment passed with the intent and public understanding that the Bill of Rights (as well as all natural rights) were now a barrier against both Federal and State action.
Enter the Slaughter-House Cases. Agreed by nearly all scholars left, right, or center, it is clear that not only was the Fourteenth Amendment, in part, meant to make the Bill of Rights applicable against the States, but also that it was the privileges or immunities section of the Fourteenth Amendment quoted above that did so. To reiterate, this was the clear intention of the drafters, as well as the public understanding. In 1873, the Supreme Court would rule on what would come to be known as one of the worst ruling by the Court: The Slaughter-House Cases. In essence, the Slaughter House Cases castrated the purpose and meaning of the Fourteenth Amendment. “The Privileges or Immunities Clause was all but erased from the Constitution in The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873). Slaughter-House refused to consider the clause’s original public meaning or its framers’ well-known intent. Instead, the Slaughter-House majority identified substitute language in place of Article IV’s actual text, and utilized this new constitutional language to justify the imposition of its own policies upon the Fourteenth Amendment’s contrary command. (4)” The Slaughter-House Cases is widely seen as a tragic setback of civil rights and liberties. In the coming decades, the Supreme Court would a fanciful, complex legal dogma of selective corporation as a way to apply fractions of enumerated liberty against the States.
Recently, the Supreme Court ruled in Heller that the Second Amendment refers to an individual’s right to keep and bear arms, and that this right includes the notion of armed self-defense. Furthermore, they ruled that this right pre-exists the Second Amendment, and that it is fundamental to ordered liberty. The result of the Heller decision was a blossoming of legal guess-work about whether the Second Amendment would become incorporated (be applied against the States). The selective incorporation of the Second Amendment, if it is indeed incorporated, will come from the Fourteenth Amendment, but not from the appropriate 'No State shall… abridge the privileges or immunities' section, but from the due process section. In any case, the City of Chicago and its surrounding suburbs were recently sued because of a ban on handguns and had other regulations (similar to regulations found unconstitutional in Heller). Note that Heller sued D.C., and therefore the case is currently only applicable to the Federal government. The new case, McDonald v. Chicago, is seeking incorporation of the Second Amendment. The lawyer, Alan Gura (the same attorney in the Heller case) is doing something rather extraordinary. He claims in his brief that the Supreme Court need not over-ride precedent of the due process clause to incorporate, but he is also arguing in his brief that it is an appropriate time to hold the Second Amendment (and the entire Bill of Rights) applicable to States by using the section of the Fourteenth Amendment that was intended to do just that: the 'No State shall… abridge privileges or immunities' section. In essence, it is time to over-rule the Slaughter-House Cases. The historical parallel here is beautiful. A meaningful Second Amendment as pertaining to the States was a very large reason for the creation of the Fourteenth, so there is no better case to finally over-rule the Slaughter-House Cases than a case dealing with the Second Amendment.
As expected, the NAACP swoops in with a brief of their own. They filed their brief in support of neither party, meaning they are not arguing in favor of one side or the other. Instead, they are arguing their own brand of legal reasoning. The mission statement found on NAACP’s website states,
This coincides with the Fourteenth Amendment perfectly. Therefore, it would seem reasonable, even demandable that the NAACP cherish the possibility of the Fourteenth Amendment finally being read as it was intended, which would in turn make their proclaimed mission statement more a reality. Instead, they argue… Well, why put words in their mouth? Allow them to speak for themselves:
Originally Posted by NAACP's Mission Statement
“Petitioners [Alan Gura] urge the Court to consider incorporation of the Second Amendment primarily under the Privileges or Immunities Clause of the Fourteenth Amendment. See Pet’rs’ Br. at 9-65. But history, prudence, and principles of judicial restraint counsel that, before embarking on an exploration of this uncharted constitutional terrain, the Court should first look to its well-established framework under the Due Process Clause for determining whether a provision of the Bill of Rights applies to state and local governmental action. There is a danger that a shift to the Privileges or Immunities Clause as the primary source of incorporated rights could result in a rollback of constitutionally protected freedoms—both in terms of the range of individuals covered by the Fourteenth Amendment, and the scope of rights that the Amendment protects. Thus, this Court should not begin its analysis with a reexamination of long dormant constitutional text, the meaning and scope of which is unclear. (6)”
Does this hold any water? Would the revival of the Fourteenth Amendment pose a danger to civil rights? To be fair, the NAACP is arguing that the precedence of the due process clause be preserved. But if the privileges or immunities clause is properly read by the Court, then civil rights will only be strengthened and broadened. Examine what the Reconstruction opposition to the enumeration of the Fourteenth Amendment stated during ratification debate: “The Fourteenth Amendment’s opponents shared this broad view of the Privileges or Immunities Clause. Representative Rogers stated,
Originally Posted by Rogers
In conclusion, it is an exciting time for American citizens. An all too long disingenuous Supreme Court decision that minimized the intended role of the Fourteenth Amendment may very well be overturned, as it should be. If the privileges and immunities clause is given its proper meaning, then the long standing and awkward dogma of selective incorporation will be superseded by the fact that all rights (and not selected ones) are inalienable. The NAACP wishes to reap the benefits of a properly read Fourteenth Amendment without conceding the right of people (whether colored or not) to bear arms. This despite the fact that the right to arms was a significant factor in the creation of the Fourteenth Amendment as the right to arms was (and still is) essential to the freedom of colored people. Former slave owners knew that the disarmament of newly freed slaves would kept them subservient, and one can only guess at the motivation of the NAACP.
(1)Heller, HLR, and Holistic Legal Reasoning pg 174, By Akhil Reed Amar
(2)Original Popular Understanding of the 14th Amendment As Reflected in the Print Media of 1866-68 pg 15, By David T. Hardy
(3)(4)(7) See Petitioners' Brief in McDonald v. Chicago, Supreme Court of the United States. Counsel of Record: Alan Gura. Pg 6, 7, 25; also see pg 15.
(5) http://www.naacp.org/about/mission/index.htm (11-25-09)
(6) Brief of Amicus Curise NAACP Legal Defense & Educational Fund, Inc. In Support of Neither Party, in McDonald v. Chicago, Supreme Court of the United States