McDonald v. City of Chicago
<http://constitutionalism.blogspot.com/2010/06/mcdonald-v-city-of-chicago.html>
The U.S. Supreme Court announced its decision today in /McDonald v. City
of Chicago/, holding 5-4 in favor of petitioner, and reversed and
remanded. This will have the effect of striking down several ordinances
against the possession of handguns in the City of Chicago, and likely
lead to successful challenges to similar bans in states and
municipalities generally. A page of discussion and links is here
<http://www.scotuswiki.com/index.php?title=McDonald_v._City_of_Chicago>.
Among the majority, 4, Alito, Roberts, Scalia, and Kennedy, decided only
on the basis of the Due Process Clause of the 14th Amendment. Justice
Thomas concurred in the judgment but maintained the proper basis for the
decision was the Privileges and Immunities Clause of the 14th Amendment.
This is a landmark decision and a victory for gun rights advocates.
This article is to go beyond saying what most other RKBA supporters will
say, and examine what "privileges and immunities" are not reasonably
covered as "due process", which if presented to the Court would require
it to reverse /Slaughterhouse/. My position, contrary to /Sullivan/, is
that the First Amendment falls into that category. I also argue that the
Second Amendment does, although four of the five seem willing to jam the
RKBA into the Due Process Clause. I wonder what they are going to do
about deciding what regulations of firearms are "reasonable", because
that is full of P&I-only issues.
There are several kinds of due process, such as legislative and
administrative, but the due process of the Bill of Rights is judicial,
about what happens between filing a court case and giving notice to the
final disposition of all matters. Although "privileges and immunities"
includes everything that is covered by "due process", there are also
rights that are not included in "due process", rights not to have things
done by government officials outside the judicial context as well.
Consider the First Amendment. It states "Congress shall make no law
abridging ..." The rights it defines are not just to be treated fairly
if there is an abridging statute passed, but to not have the statute
passed in the first place. It is not necessary to wait until a statute
is applied, or someone is injured in an unlawful enforcement action. It
is supposed, by original understanding, to be able to get a statute
struck down before it is applied to anyone, as a private prosecution of
a public right.
The Second Amendment states "shall not be infringed". That doesn't just
mean in court. The people have a right not to have government even
attempt to infringe their right to keep and bear arms, before they
actually do it to anyone. They also have the right to be organized and
trained as militia, and to be kept in a constant state of readiness
sufficient to meet any threat, and failing action on the part of public
officials to do so, to organize, train, and equip themselves
independently of such officials. That is not just about what happens in
the judicial process.
The judges on the Supreme Court know all this. Cramming the RKBA into
the Due Process Clause is a stretch, and they know it. They are avoiding
something, and what they are avoiding is the Ninth Amendment, which, if
properly expanded, includes many rights that fairly clearly do not have
the character of "due process".
The rights, or more precisely, privileges and immunities, of the Bill of
Rights, can be mostly put into two categories:
1. Rights to a presumption of nonauthority -- due process.
2. Rights to the means to effectively supervise public officials --
partly but largely not due process.
This is more fully discussed in Presumption of Nonauthority and
Unenumerated Rights <http://constitution.org/9ll/schol/pnur.htm>, a law
review article I am writing.
It is (2) above that scares the judges, as well it should. One of the
main areas of erosion of our rights has been to make practically
inaccessible remedies for abuses by public officials, such as shielding
them with layers of official immunity. Legislators may have tried to
placate the public with the Freedom of Information Act and various state
open records acts, but they have also allowed suppression of writs of
quo warranto, and a takeover of grand juries by public prosecutors.
The great challenge for reformers now is to find and pursue cases
involving rights that are clearly not due process, but that fall
squarely into the privileges and immunities realm, so that the judges of
the Supreme Court will have little choice but to finally overturn
Slaughterhouse.
-- Jon
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