RSSWould Chicago Gun Rights Case Destroy Federalism?
Warner Todd Huston | December 20, 2009
For the Family Research Council, Ken Blackwell and Ken Klukowski warned in a Washington Times op ed that a case on gun rights that will soon come before the Supreme Court could “trigger the unhinging of American culture.” Not only do I think the pair went too far in their claim, I also think they missed several key reasons why their worst fear of the end of state’s rights and federalism is misplaced, even as their warning is well taken.
What Blackwell and Klukowski are worried about is that the upcoming McDonald v City of Chicago case could open a “Pandora’s box” of federal overreach to the point where any federal judge could override any state law and claim that it violates the Constitution’s Privileges or Immunities Clause. The two feel that if this challenge succeeds it could “completely change American culture, with the court having a new basis upon which to declare constitutional rights to abortion, same-sex marriage, obscene material or a child’s ‘right’ to a public-school education over his parents’ objections.”
The case is centered upon the legality of the City of Chicago to regulate away the rights of its citizens to own firearms and store them in their own homes. Of course anyone that cares about the Constitution should want McDonald to beat the City of Chicago and force the city to recognize its citizen’s 2nd Amendment rights to self-protection. But, the op ed warns that they way the McDonald lawyers are going about their challenge to Chicago could lead to undesired consequences.
The key to the pair’s point is the 1873 Slaughterhouse cases where some Louisiana butchers tried to get the federal courts to strike down Louisiana State slaughterhouse regulations. The butchers lost their bid at the Supreme Court. This outcome in 1873, the pair think, was a good thing.
Had the court accepted the butchers’ argument and struck down the Louisiana law, federal courts would have the power to declare anything they want to be a right of U.S. citizenship and strike down any state or local law they don’t like.
They go on to warn that if this is overturned in McDonald, “then federal judges could use the Privileges or Immunities Clause to challenge state and local labor laws, commercial laws, employment laws and business regulations across the country.”
First off, let me say that I understand their fear. We have for the last 100 years or more seen activist courts that have strayed from the realm of reading the law to inventing it out of whole cloth from the bench. From the false doctrine of “penumbras,” to the assumption that abortion is a right, to bussing, and more we’ve seen federal judges make up the law out of their rear-ends instead of deciding cases based on the written law. It has only been over the last few years that we’ve started getting Justices that care a whit about original intent of the law, the best Republican legacy we have to date.
So, when the two Kens worry that a new interpretation of the Privileges or Immunities Clause could portend an ill wind coming, I can sympathize with their fears. Anything that gives left-wing activists on the bench more room to steal power from the states is a bad, bad thing.
But here’s the deal. If that were to happen, if the Privileges or Immunities Clause were to suddenly be stretched to include just any old thing that a federal judge feels like using it for, it would be an entirely new direction never before taken. In other words, the pair have no reason to assume that this case will suddenly give federal judges license to gather more power unto themselves. The clause has never been thought of that way and there is no reason to expect that this case must change that. And, in fact, we don’t even need the P & I clause overturned to give activist left-wing judges more excuses to destroy our system. They’ve been doing just fine without it.
Anyway, the P & I clause is not a license for federal power. As Illya Shapiro of the CATO Institute says:
Neither the Privileges or Immunities Clause nor any other part of the Fourteenth Amendment empowers judges to impose their policy views. Instead, “privileges or immunities” was a term of art in 1868 (the year the Fourteenth Amendment was ratified) referring to a specific set of common law, pre-existing rights, including the right to keep and bear arms. The Privileges or Immunities Clause is thus no more a blank check for judges to impose their will than the Due Process Clause — the exact vehicle the Kens would use to “incorporate” the Second Amendment.
But there is another aspect of the whole discussion of out-of-control judges that I don’t see discussed nearly enough and that is impeachment, removal from the bench and/or public pressure on judges.
There is absolutely no reason for we, the people, to sit about meekly accepting the often anti-American pronouncements of these left-wing judges. We have the power to remove them despite that they’ve been given life-time tenure. Further, we always have the legislative option of ignoring them. As President Andrew Jackson so famously put it when he ignored a ruling of his own Supreme Court, “they have made their decision, now let them enforce it.” By this, Jackson was recognizing the simple fact that the courts really don’t have any way to enforce rulings unless we acquiesce to them.
Why the legislatures on both the federal and state level don’t at least threaten to remove these out of touch, activist judges is a mystery to me as they do have the power in certain instances to do it and this threat could serve as a leash on judicial overreach if only it were used.
Don’t get me wrong, I wouldn’t want it to go so far as to threaten the autonomy of all judges, but on the other hand the free reign these people get to destroy our culture and traditions has been nearly as destructive as would a judiciary afraid of its own shadow! A happy medium of judges that have a free hand but understand that they, too, will face consequences for their decisions is warranted in this age of judicial activism.
So, while the two Kens are a bit hyperbolic in their Washington Times op ed, their fears shouldn’t be wholly discounted. We do have a lot to fear from our out-of-control legal system and we should take the steps open to us to bring these power-mad demagogues on the bench back down to earth. On the other hand, this particular case, McDonald v. City of Chicago, might not be the opening of Pandora’s box that the pair fear.
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6 Responses to “Would Chicago Gun Rights Case Destroy Federalism?”
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To all,
I wish to state that the Supreme court, in the Slaughterhouse Cases, held that because of the Fourteenth Amendment there were now two separate and distinct citizens under the Constitution of the United States; a citizen of the United States, under the Fourteenth Amendment and a citizen of the several States, under Article IV, Section 2, Clause 1 [FOOTNOTE]:
“We think this distinction and its explicit recognition in this Amendment (the 14th Amendment) of great weight in this argument, because the next paragraph of this same section (first section, second clause), which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several states. The argument, however, in favor of the plaintiffs, rests wholly on the assumption that the citizenship is the same and the privileges and immunities guaranteed by the clause are the same.” 83 U.S. 36 (1873), page 74.
And:
“In the Constitution of the United States, which superseded the Articles of Confederation, the corresponding provision is found in section two of the fourth article, in the following words: ‘The citizens of each State shall be entitled to all the privileges and immunities of citizens OF the several States.’ ” 83 U.S. 36 (1873), page 75.
The last was later reaffirmed in Cole v. Cunningham:
“The intention of section 2, Article IV (of the Constitution), was to confer on the citizens of the several States a general citizenship.” Cole v. Cunningham: 133 U.S. 107, 113-114 (1890).
The privileges and immunities of citizens of the several states are those described by Corfield, cited in the Slaughterhouse Cases. This is reaffirmed in Hodges v. United States:
“In the Slaughter House Cases, 16 Wall. 36, 76, in defining the privileges and immunities of citizens of the several States, this is quoted from the opinion of Mr. Justice Washington in Corfield v. Coryell, 4 Wash. Cir. Ct. 371, 380.” Hodges v. United States: 203 U.S. 1, at 15 (1906).
So there are now two citizens under the Constitution of the United States. One needs to find out information on both. For a citizen of the United States that is easy. Just about anywhere. For a citizen of the several States one will have to begin here:
http://citizenoftheseveralstates.webs.com/index.htm
____________
FOOTNOTE
The Effects of the Fourteenth Amendment on the Constitution of the United States
http://www.australia.to/index.php?option=com_content&view=article&id=15882
Also,
A Look At Corfield (On Citizenship)
http://www.australia.to/index.php?option=com_content&view=article&id=16868
____
Dan,
There always were citizens of the United States and state citizens in the United States from the time the Constitution was signed. If there were not then the multiple state experiment where states were able to pass their own laws to cover powers not delegated to the United States by the Constitution would have been null and void. No state would have been able to pass a law to pertain only to its own citizens without such being true. Also, without such a designation there would be no way for states to secede from the union just like the colonies seceded from Great Britain because there would be no true states and just a United States.
Your comments really don’t address the issue. The multi-citizenship argument has nothing to do with the clear rights and privileges of United States Citizens.
The 14th amendment clearly states, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” and that includes the second amendment.
To Libertarian Prince
I read your comment (December 23rd 2009 7:00 am).
It appears to me that you are confusing a citizen of a State with a citizen of the several States. They are not the same. A citizen of a State, in contradistinction to a citizen of the United States, is covered in Section 1, Clause 1 of the Fourteenth Amendment whereas a citizen of the several States, in contradistinction to a citizen of the United States, is covered in Section 1, Clause 2 of the Fourteenth Amendment. On this point:
http://www.americanchronicle.com/articles/view/81262 .
There are now two citizens under the Constitution of the United States (of America). On this point:
http://www.australia.to/index.php?option=com_content&view=article&id=16078 .
There is a desire, by many, to overturn the Slaughterhouse Cases, using the McDonald case as the means. The reason centers on the Privileges or Immunities Clause of the Fourteenth Amendment. Those who wish to overturn Slaughterhouse Cases believe: a) that there is only one citizen under the Constitution since the ratification of the Fourteenth Amendment and the Slaughterhouse Cases, b) that the privileges and immunities of this citizenship should be those described in Corfield v. Coryell. They do not know that there is a second citizenship now under the Constitution (and not the Fourteenth Amendment), and that this citizenship has those privileges and immunities described in Corfield v. Coryell.
The fact there is a citizen of the several States in law is settled! On this point:
http://www.australia.to/index.php?option=com_content&view=article&id=16289 .
Because of this then there are two state citizens under the Constitution since the ratification of the Fourteenth Amendment, a citizen of the United States under Section 1, Clause 1 of the Fourteenth Amendment and a citizen of the several States under Article IV, Section 2, Clause 1 of the Constitution. On this point:
http://www.faxts.com/index.php?option=com_content&view=article&id=1414 and
http://www.australia.to/index.php?option=com_content&view=article&id=17405
The 14th Amendment does states “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Whether it includes the Second Amendment is what the Supreme Court will determined. If it is a privilege or immunity of a citizen of the United States, then it will have to be one which owes it “existence to the Federal government, its National character, its Constitution, or its laws.” Slaughterhouse Cases, page 79.
(I like to say that a State, once in the Union, cannot secede from it. On this point:
http://www.britannica.com/EBchecked/topic/589367/Texas-v-White and
http://books.google.com/books?id=MfY7AAAAIAAJ&pg=PA700#v=onepage&q=&f=false
It is quite obvious Doug that you do not have a grasp of the English language beyond perhaps a third grade level. You are arguing a moot point and adding additional fallacies on top of fallacies.
As LP stated there always were two types of citizens under the United States Constitution otherwise the concept of state’s rights and the 10th amendment would have been moot. You argue about the 14th amendment by twisting the words into something that they clearly do not mean by any translation of the English language.
The individual states were often referred to as “the several states” and this language was not new under the 14th Amendment. It always meant citizens of the individual states and not what you are interpreting it to mean.
As for secession, you are of course wrong on that too. The very founding document of our nation states quite clearly that whenever the laws and leaders turn against liberty the people have a right to abolish all ties. It is called the Declaration of Independence. Suggesting that the founding fathers would think it was ok to seceded one time that such a thing was true but not another is absurd and you and any source that makes that claim are living in a la la land.
Once more, the 10th amendment makes it clear that all powers NOT vested in the federal government are vested in the people and the states. Secession is not vest in the federal government. Ergo it is a right retained by the people and the states.
Grow up. You are not as smart as you think you are. Just about as bad as those retards that bitch about the gold fringe on the flag if you ask me!
What is in the water that Dan is drinking? You are right OOHRAHMAN, the term “several states” was not new under the 14th amendment and was actually used in the root Constitution and was used in two different contexts. First was to obviously mean each individual state and also to include the Union as a whole. Thus a “citizen” of the “several states” of course is a citizen of an individual state.
Don’t get me started on the gold fringe kooks though!
Dan, you should actually read the Constitution to avoid this foolishness.
References:
Article I Section. 2.
“The House of Representatives shall be composed of Members chosen every second Year by the People of the several States”
“Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union”
Article I, Section 8:
“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”
Article 2, Section 2:
“Section. 2.
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States”
And lastly there is Article V which CLEARLY defines that the that there are citizens of each state AND that “citizens of the Several States” means citizens of the United States as a whole
Article V, Section. 2:
“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
There you go Dan, the definition was set LONG before the 14th Amendment. So take your conspiracy theories and half baked opinions and go home please. If you cannot deal in reality you cannot deal here.
Of course J.J. everyone knows that “several states” and “United States” were used interchangeably by the founders. Well, nearly everyone by the looks of things. Well, there is no helping some people. Even with presented with irrefutable evidence of the truth some people today still persist to believe that the Earth is flat, that Global Warming is man made and that the Sun really does orbit the Earth.