Thomas strikes blow for original 14th Amendment
Jul 6, 2010 5:39:27 GMT -5
Post by avordvet on Jul 6, 2010 5:39:27 GMT -5
Thomas strikes blow for original 14th Amendment
Chicago case was not just about guns, but about all of our rights
By CLARK NEILY AND ROBERT MCNAMARA
Gun owners across the country rejoiced this week as the U.S. Supreme Court rejected the city of Chicago's ban on handguns in the case McDonald v. City of Chicago. Gun owners, however, should not be celebrating alone: This ruling should be championed by everyone who cares about liberty and the unique role played by courts in protecting it under our system of government.
McDonald is a case about much more than guns. At its heart, it is a case about liberty and how courts protect our rights. The court was deeply divided over whether the Constitution protects a right to own guns from improper interference by state and local governments -- just as District of Columbia v. Heller in 2008 held that the Second Amendment protects such a right against federal interference. Four justices voted to strike down Chicago's handgun ban, finding a right to keep and bear arms under a doctrine called "substantive due process." Four disagreed, voting to uphold the gun ban.
The deciding vote fell to Justice Clarence Thomas, who noted that, for all the disagreement between the two groups of four justices, neither side even pretended to base their arguments on what the 14th Amendment was actually understood to mean when it was adopted. Justice Thomas agreed that the gun ban should be struck down, but it should be done under the 14th Amendment's "Privileges or Immunities Clause."
Talking about which "clause" the Supreme Court relied on in announcing a right to keep and bear arms may seem like a technical side issue -- something that could only possibly matter to lawyers. But nothing could be further from the truth.
The phrase "privileges or immunities" may be unfamiliar today, but 19th-century Americans used it synonymously with a term modern Americans know very well: rights. After the Civil War, with slavery abolished, Southern officials embarked on a campaign of oppression designed to keep newly freed slaves and their white supporters in a state of penury and terror. Laws were passed making it legally impossible for newly freed slaves to work in many occupations. Former Union soldiers were systematically disarmed in order to make them easier targets for lynch mobs. In Memphis, a black entrepreneur named Robert Church was attacked by a mob led by the local police, shot, and left for dead in the street -- all for the crime of owning a business that local authorities did not think a black man should own.
The whole point in amending the Constitution to add the 14th Amendment -- and with it the Privileges or Immunities Clause -- was to end the culture of oppression and tyranny imposed by state and local governments. Federal courts were expected to strike down state and local violations of rights, and two rights the Privileges or Immunities Clause was clearly intended to protect were armed self-defense and economic liberty.
But the Supreme Court essentially wrote the Privileges or Immunities Clause out of the 14th Amendment in an 1873 decision called the Slaughter-House Cases. The result was predictably disastrous: People who lacked political power would be denied the ability to gain any economic power and stripped of any meaningful ability to protect themselves from the vicious reprisals and Ku Klux Klan violence that soon became a shameful hallmark of Reconstruction.
The Slaughter-House Cases were wrongly decided -- indeed, there may be no question on which legal scholars are in wider agreement than that the Slaughter-House decision is indefensible. But for over a century, the Supreme Court has simply ignored the Privileges or Immunities Clause and has protected rights in a largely ad hoc manner that gives more weight to the justices' personal perceptions about which rights are important than the convictions of those who ratified the 14th Amendment.
The McDonald decision points to a change in all that. For the first time, the deciding vote in a Supreme Court case rejected Slaughter-House and adopted a correct, historically grounded interpretation of the Privileges or Immunities Clause. Justice Thomas' opinion sends a strong signal that the court cannot remain out of step with the original meaning of the 14th Amendment forever.
Justice Thomas' pivotal opinion points the way toward a better way of protecting liberty: not by looking to the policy preferences of individual judges, but by making a serious inquiry into what the text of the Constitution actually meant to those who enacted it. The strength and wisdom of Justice Thomas' analysis -- the validity of which was not disputed by any other justice -- mean he will not long remain a lone voice in the wilderness crying out for principled constitutional interpretation.
Far from being just a case about guns, McDonald is a first step toward meaningful and principled protection of our essential, natural rights. And that is a step that everyone -- gun owner or not -- has reason to applaud.
Clark Neily is a senior attorney at the Institute for Justice who, in his private capacity, represented the plaintiffs in District of Columbia v. Heller. Robert McNamara is a staff attorney with the Institute for Justice in Arlington, Va., which filed a friend of the court brief in the McDonald and Heller cases in support of the gun owners.
www.lvrj.com/opinion/thomas-strikes-blow-for-original-14th-amendment-97758239.html
Chicago case was not just about guns, but about all of our rights
By CLARK NEILY AND ROBERT MCNAMARA
Gun owners across the country rejoiced this week as the U.S. Supreme Court rejected the city of Chicago's ban on handguns in the case McDonald v. City of Chicago. Gun owners, however, should not be celebrating alone: This ruling should be championed by everyone who cares about liberty and the unique role played by courts in protecting it under our system of government.
McDonald is a case about much more than guns. At its heart, it is a case about liberty and how courts protect our rights. The court was deeply divided over whether the Constitution protects a right to own guns from improper interference by state and local governments -- just as District of Columbia v. Heller in 2008 held that the Second Amendment protects such a right against federal interference. Four justices voted to strike down Chicago's handgun ban, finding a right to keep and bear arms under a doctrine called "substantive due process." Four disagreed, voting to uphold the gun ban.
The deciding vote fell to Justice Clarence Thomas, who noted that, for all the disagreement between the two groups of four justices, neither side even pretended to base their arguments on what the 14th Amendment was actually understood to mean when it was adopted. Justice Thomas agreed that the gun ban should be struck down, but it should be done under the 14th Amendment's "Privileges or Immunities Clause."
Talking about which "clause" the Supreme Court relied on in announcing a right to keep and bear arms may seem like a technical side issue -- something that could only possibly matter to lawyers. But nothing could be further from the truth.
The phrase "privileges or immunities" may be unfamiliar today, but 19th-century Americans used it synonymously with a term modern Americans know very well: rights. After the Civil War, with slavery abolished, Southern officials embarked on a campaign of oppression designed to keep newly freed slaves and their white supporters in a state of penury and terror. Laws were passed making it legally impossible for newly freed slaves to work in many occupations. Former Union soldiers were systematically disarmed in order to make them easier targets for lynch mobs. In Memphis, a black entrepreneur named Robert Church was attacked by a mob led by the local police, shot, and left for dead in the street -- all for the crime of owning a business that local authorities did not think a black man should own.
The whole point in amending the Constitution to add the 14th Amendment -- and with it the Privileges or Immunities Clause -- was to end the culture of oppression and tyranny imposed by state and local governments. Federal courts were expected to strike down state and local violations of rights, and two rights the Privileges or Immunities Clause was clearly intended to protect were armed self-defense and economic liberty.
But the Supreme Court essentially wrote the Privileges or Immunities Clause out of the 14th Amendment in an 1873 decision called the Slaughter-House Cases. The result was predictably disastrous: People who lacked political power would be denied the ability to gain any economic power and stripped of any meaningful ability to protect themselves from the vicious reprisals and Ku Klux Klan violence that soon became a shameful hallmark of Reconstruction.
The Slaughter-House Cases were wrongly decided -- indeed, there may be no question on which legal scholars are in wider agreement than that the Slaughter-House decision is indefensible. But for over a century, the Supreme Court has simply ignored the Privileges or Immunities Clause and has protected rights in a largely ad hoc manner that gives more weight to the justices' personal perceptions about which rights are important than the convictions of those who ratified the 14th Amendment.
The McDonald decision points to a change in all that. For the first time, the deciding vote in a Supreme Court case rejected Slaughter-House and adopted a correct, historically grounded interpretation of the Privileges or Immunities Clause. Justice Thomas' opinion sends a strong signal that the court cannot remain out of step with the original meaning of the 14th Amendment forever.
Justice Thomas' pivotal opinion points the way toward a better way of protecting liberty: not by looking to the policy preferences of individual judges, but by making a serious inquiry into what the text of the Constitution actually meant to those who enacted it. The strength and wisdom of Justice Thomas' analysis -- the validity of which was not disputed by any other justice -- mean he will not long remain a lone voice in the wilderness crying out for principled constitutional interpretation.
Far from being just a case about guns, McDonald is a first step toward meaningful and principled protection of our essential, natural rights. And that is a step that everyone -- gun owner or not -- has reason to applaud.
Clark Neily is a senior attorney at the Institute for Justice who, in his private capacity, represented the plaintiffs in District of Columbia v. Heller. Robert McNamara is a staff attorney with the Institute for Justice in Arlington, Va., which filed a friend of the court brief in the McDonald and Heller cases in support of the gun owners.
www.lvrj.com/opinion/thomas-strikes-blow-for-original-14th-amendment-97758239.html