Subtitle Law Abiding Citizen

Subtitle Law Abiding Citizen

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Let’s do two things. Let’s turn the clock back to the period 1866 to 1876 to Reconstruction, the development of the Fourteenth Amendment, and the whole issue of the Black Codes. After the war was concluded, the Southern states reenacted the Slave Codes, which made it illegal for African Americans to possess firearms, and one of the purposes of a couple of statutes that were passed in 1866 and then of the Fourteenth Amendment was to do away with these Black Code provisions and to protect the right of all people to keep and bear arms. That is the history that is currently before the Supreme Court. After the Heller decision came down, Mayor Daley defiantly said that the Second Amendment does not apply in his city, and there were several lawsuits filed. McDonald v. City of Chicago was filed the same day as Heller. The NRA filed several lawsuits: NRA v. Chicago, Oak Park, Morton Grove and a few other Chicago land suburbs. All of those repealed their ordinances, especially the most famous one, Morton Grove. That was the first handgun ban in U.S. history by a locality other than the D.C. one, and it was upheld going through the courts. The courts basically said, well, the Second Amendment doesn’t mean anything. They repealed it rather than litigate it. They looked at the handwriting on the wall, and in fact the Heller case, even though it was about whether the Second Amendment meant an individual right and whether a handgun ban was inconsistent with the Second Amendment, also did a historical analysis that went through the Reconstruction period, when the Fourteenth Amendment was adopted. The Court tipped its hand. The Court began by saying that after the Civil War there was considerable debate about the right to keep and bear arms and the ability and right of former slaves to do that. It cited the book that you can buy here tonight, and I’d be glad to autograph. Securing Civil Rights was cited under the subtitle, which used to be the main title, Freedmen, the Fourteenth Amendment, and the Right to Bear Arms. The Court goes into a nice analysis of the intent to basically incorporate the Second Amendment into the Fourteenth Amendment so as to invalidate those Black Code provisions and make it lawful for all people to keep and bear arms and invalidate gun bans at the local and state levels.

There are two clauses in the Fourteenth Amendment that are relevant here. The Fourteenth Amendment says that “no state shall deprive any person of life, liberty or property without due process of law.” That applies to any person, and a person means an individual, [but] it may mean a corporation, like the NAACP, or a commercial entity. There’s another clause that says, “No state shall deprive any citizen of privileges and immunities of citizens of the United States.” That’s a more complex set of phrases. I think we’re all familiar with the concepts of life, liberty, and property, the Declaration of Independence saying that we are endowed by our Creator with life, liberty, and the pursuit of happiness. Life, liberty, and property are part of that. The word “right” doesn’t appear in the Due Process Clause, but it’s presumed. It’s one of the premises of the Due Process Clause that you have a right to life, liberty, and property that they cannot deprive you of without due process.

That is basically what we are hanging on the edge of our seats to be decided, and I’d like to say a little more about the arguments that Chicago made in the case, particularly their historical arguments. Chicago argues that it’s okay to ban all guns for all people alike. Therefore, there are no equal rights that are violated. They say that the Fourteenth Amendment only protects the equal protection of people. I would say that would be the equal deprivation of rights of people. As long as all people are treated the same way as the slaves were treated, for example, that’s okay. The right to free speech could be banned as long as you ban it for everybody. They don’t say that, but they say it for the right to keep and bear arms, and they say that was the only intended purpose of the Fourteenth Amendment. The fun really begins when we start seeing the members of Congress whom Chicago quotes without telling the Court who they really are. The two leading opponents of the Fourteenth Amendment in the Senate were the two main people that Chicago relied on. One of those was Robert E. Johnson. He was really one of the great constitutional lawyers of the nineteenth century. It just so happened, though, that he had represented the slave owner in the Dred Scott case. Dred Scott held that if you recognized African Americans as citizens, they would have the right to free speech, to hold political meetings, and to keep and bear arms wherever they went, so you can’t recognize them as citizens. This is the shock argument. I think that Robert E. Johnson probably had a good idea of what the Fourteenth Amendment was intended to do because it was intended to overrule that decision for one thing. Among the rights, privileges, and immunities that the Court made clear in that case of citizens at least was the right to keep and bear arms. Chicago cited and quoted Robert E. Johnson without even mentioning that he opposed the Fourteenth Amendment and without telling the Court that he is arguing against its adoption. How could you say he is the one you go to to get your understanding of the Fourteenth Amendment

One of the most important speeches that Chicago disregards, or actually they try to minimize, was by Jacob Howard when he introduced the Fourteenth Amendment to the Senate. He gave a long, very interesting speech where he talked about the fact that previously, the Supreme Court had said the Bill of Rights does not apply directly to the states. He had talked about the intent of the Fourteenth Amendment to make sure that the Bill of Rights does apply to the states. He goes on to say that there are individual rights, privileges, and immunities that are before the Congress that are at stake in the proposed Fourteenth Amendment. He went ahead and read those that he thought were most important, and guess what The Second Amendment was one of those. He called these personal rights. Now, this is the guy who introduces the amendment to the Congress. Chicago doesn’t think that is of any relevance, but he goes on to talk about the fundamental rights that exist in every society that is not a slave society or a despotism. By talking about the right to keep and bear arms as a right, he made that discussion in terms of it being a right and not a privilege and immunity of citizens because he said it applied to the people. His speech has been misread by some scholars to rely on the Privileges or Immunities Clause, but in actuality he clearly distinguishes privileges or immunities of citizens from rights of the people. The right to keep and bear arms was a right of the people. When he made that comment about slave societies and despotisms he said, what are those rights Now, notice he didn’t say that it would be a despotism or a slave society if you don’t have a right to a jury trial in a civil case where it’s more than $20 at stake. He did not cite the Grand Jury Clause, but he did talk about free speech, assembly, and keeping and bearing arms.

Aside from the absence of historical support involving the pre-existing right to arms, the conclusion is inconsistent with what Scalia himself calls the core of the right—namely, self-defense. On what understanding of that core right does it make any sense at all to leave American citizens defenseless in their own homes for the rest of their lives on the basis of nothing more than a non-violent felony like tax evasion or insider trading It would make more sense to say that these felons can be silenced for the rest of their lives. Regulatory crimes, after all, usually involve an abuse of speech, such as making false statements to the government or negotiating contracts that the government doesn’t like. But they don’t have anything at all to do with firearms or violence.

Next, Scalia endorses prohibitions on the carrying of firearms in sensitive places such as schools and government buildings. Scalia provides no evidence that Americans were forbidden to carry firearms in schools and government buildings prior to 1791. Nor does he explain what makes these places sensitive or how courts are supposed to go about determining the scope of this newly announced exception to the right to arms. Is a university campus more sensitive than a shopping mall across the street Is a government-owned cabinet, a national forest, more sensitive than a privately owned hotel Did the whole city of New Orleans become a sensitive place after Hurricane Katrina thus justifying the government forcibly disarming law-abiding citizens whom the government was unable to protect from roving bands of criminals We are never told what limits, if any, there are on the discretion of courts to decide that certain places are so sensitive that Americans may be disarmed when they go there, and we’re certainly not given any historical evidence to support such discretion.

Finally, the Heller Court announces that the Second Amendment “does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes”—and there are a couple of examples—short-barreled shotguns and apparently machine guns as well, which are per se not protected by the Second Amendment according to the Court. Where did that come from Scalia invokes a 1939 precedent in support of his conclusion, but his interpretation of the case is really completely wacky. He also invokes William Blackstone’s reference to dangerous and unusual weapons, but Blackstone did not say that it was illegal to possess such weapons. He said only that it was illegal to carry them in public when doing so would terrify the good people of the land. 59ce067264

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