November 17, 2009

Everybody's talking about the Privileges and Immunities Clause.

And guns.


Fred4Pres said...


I would like to see that happen, but I do not see that occurring unless the boys can convince Tony to go along with it.

Skyler said...

I'm impressed. This is why I quit the NRA. They have done nothing in more than 100 years to help protect gun rights except what they've needed to do to get money from people to convince them that they are their only hope. They've refused to work in the judicial system and have only worked in the legislative branch.

Now with Heller and this case, we might be getting our rights finally recognized.

And it's ballsy to ask the court to overturn Slaughterhouse. You think the NRA would do that even if they did go to court?

Pastafarian said...

OK, one of you very legally well-informed Althousians is going to have to explain this to me.

I thought that this clause had to do with preventing discrimination against people from out-of-state. So, for example, this clause would be violated if Indiana passed a law that said that Ohioans in Indiana had no freedom of speech, if Indiana allowed their own citizens freedom of speech.

But if Indiana took away their own citizen's free speech rights, then they could take away visiting Ohioans' free speech rights too, and this wouldn't violate the Privileges and Immunities clause. (It would violate the First Amendment rights of both Hoosiers and Ohioans, but not the P&I clause).


How does this extend to the right to keep and bear arms?

I don't understand the point to using this clause anyway. We don't even have to ask the courts to "incorporate" the second amendment like they have the first, in my opinion, because of the very plain and very powerful wording of this amendment.

The right of the people to keep and bear arms shall not be infringed.

It doesn't matter whether the phrase that comes before that was a justification for this right, or just an observation; this part of the sentence can stand alone, or else the whole sentence has no meaning.

And it says that this right cannot be infringed. Ever. By anyone. Compare the "incorporated" first amendment, which specifically mentions congress -- Congress shall make no law, yada yada. The second amendment, on the other hand, automatically extends to Congress, the states, municipalities, etc.

Skyler said...

Pasta, the bill of rights was interpreted to only apply to the federal government's power to restrict individuals. Until the 14th Amendment, the states were free to do whatever they wanted. The states were very strictly sovereign.

The Civil War changed this way of thinking. States lost their sovereignty for almost all purposes and the 14th Amendment was created to formalize what 600,000 people died in creating.

This place is populated by too many constitutional professors for me to want to get into the details of the privileges and immunities clause.

Chris said...

I didn't see any explicit discussion of "of"--what relationship does a right have to bear to "citizens of the United States" to be covered under P/I, exactly? They talk a bit about tradition, a bit about incorporation, and a bit about natural rights, but which of those is the textually-expressed meaning?

Pastafarian--Article IV section 2 clause 1 ("The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States") is about discrimination against out-of-staters, but not the relevant provision of the 14A ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"). The meaning of the 14A provision is what McDonald is about. (I think it's in part an antidiscrimination, equal-citizenship provision--see here and here, especially the latter at 255-77--though it also protects rights generally and traditionally given to U.S. citizens under state constitutions, common law, and the like).

Captain Ned said...


Taney's Dred Scott decision held that a Negro (I'm using the period language from the decision for this post), even a freed Negro slave, could never claim the Privileges and Immunities granted a US citizen in Article IV, regardless of any State action to grant State citizenship to said Negro slave.

Taney said, bluntly, that any and all Negros descended from slaves imported into the US as property could never be citizens because in his mind the Founders intended to forever exclude Negros from citizenship.

The legislative history of the 14th Amendment includes views that the wording of the P&I clause of the Amendment was meant to directly overturn the Dred Scott decision. Along comes Slaughterhouse, which refuses to see the legislative history, and for the next 120 years all civil rights law is based on ever-stretched interpretations of due process.

Overturn Slaughterhouse and restore the P&I clause of the 14th Amendment as protecting the same rights as the P&I clause in Article IV. It only took 20 years to overturn Lochner; why has it taken so long to overturn Slaughterhouse?