The states cannot restrict ANY Constitutional right, triz. They are not specifically related to interstate travel or anything as mentioned in the 14th Amendment. As I said, there is no laundry list of “rights” as that would mean anything *not* in the laundry list is no longer a “right. The state simply cannot usurp federal Constitutional rights under *any* circumstance. And now they are sly, trying to play the legalese word game… saying federal RKBA just doesn’t apply to them. But it does, in the extent they cannot infringe on a federal Constitution right.

What is at issue in Maloney is whether the states, who consider their laws as separate to federal laws… as they should… are allowed to dilute a Constititional right that is applied equally throughout all states. NY’s law banning nunchucks makes it to the Supremes because they cannot dodge the obvious questionable divide. Consider this… NY resident can’t own nunchucks, but that law doesn’t apply to nunchuck owners of neighboring states who may slide thru on visits, competitions, exhibitions, etc. Precedents have knocked down tax breaks afforded only to non-state tax filers and not to in state residents with similar arguments… unConstitutional. The Supreme’s have avoided other Constitutional issues by refusing to hear on lower courts’ technicalities and rulings, i.e. Bushey, but they can’t dodge this one. And I’m sure they really wanted to…

Wouldn’t burn your brain cells much on this right now. I believe this is on the court’s docket in late summer, early fall, if I’m not mistaken. So this will be an issue here on FA then, and in more depth. So pocket your thoughts until the SCOTUS orals start.

An eight judge SCOTUS better be the only ones hearing this, since Obama and the Dems are trying to rush the Sotomayor appointment before the summer Congressional vacation hits. And she needs to recuse herself. And I wonder how they would figure out an 4-4 opinion without a recused Sotomayor.

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@MataHarley:

the 14th Amendment applies because states cannot restrict any rights the Constitution has applied nationally

This is either not true or not in the passages you quoted: The 14th Amendment is clear that states cannot restrict a few specific rights (later deemed fundamental) which primarily deal with interstate travel and commerce and do not mention the RKBA at all. Otherwise, why would the SCOTUS in Heller say that the RKBA was not though applicable to the states, and that they would not reconsider this (keep in mind Heller was decided in DC and so applied only at the federal)? If Scalia’s words themselves are too vague, almost every interpretation of the case I have read concludes something like the following (this time from Reason):

Most significantly, Scalia’s decision neglected to incorporate the individual right to gun ownership to the states through the Fourteenth Amendment. That means that for practical purposes, the only people directly affected by the ruling are the 600,000 residents of Washington, D.C., and the handful of others living in protectorates of the federal government.

I really want to get to the bottom of this, but I’m starting to feel like I’m disabled or something for not getting your point. Let me know when this starts to go ad nauseum (if it hasn’t already)

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triz, the 14th Amendment applies because states cannot restrict any rights the Constitution has applied nationally. Sotomayor and the courts try to dodge that by saying the federal law simple doesn’t apply to the states, which is incorrect on it’s face. It does so by limiting their power to regulate what the federal Constitution deems is an inalienable right.

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@MataHarley: I still don’t see anywhere in your statements how the 14th Amendment applies to the Bill of Rights explicitly or the 2nd Amendment specifically. As a matter of fact, if the Bill of Rights applied, why would the states need to have a mirror State Bill of Rights? Your definitions of “privileges and immunities” does not contain the RKBA, and the legal-dictionary interpretation makes it clear that this clause was meant to prevent states from infringing on the rights of non-state-citizens, not in propagating the bill of rights explicitly.

I admit I’m picking this stuff up on the fly and there are too many court decisions to wrap my head around completely, but your main point that “US Constitutional rights apply equally thru all the individual states” is in direct contradiction with statements INRE Haller: For most of our history, the Bill of Rights was not thought applicable to the States and … whether the Second Amendment’s guarantee (as interpreted in Heller) of a personal right to have a gun restricts the power of state and local governments to regulate personal weapons (as it already does for the federal government).

This is an interesting debate because I’m personally quite happy with gun rights; I agree with the 9th circuit decision that the RKBA falls under the 14th Amendment, and I think that deciding on what weapons were “used at the time” is the path to a relativist swamp. What I see in the Sotomayor decision, however, is the simple observation that deciding if the RKBA is fundamental falls outside the scope of the case and that current precedent does not prevent the states from infringing on that right. It’s not a surprise to me that the 9th Circuit was the one to make the bold move of incorporating it.

As for the laundry list, I completely agree, which is why I think the Constitutional phrasing of “shall not infringe upon” rather than “shall grant” is so uniquely elegant.

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triz, without all the gobbly gook legalese, one can safely say that Sotomayor was arguing that the feds assumed power to regulate RKBA did not prohibit the state from having their own regulations.

And obviously, in that lies the danger that the government gets to “choose” what weapons are “dangerous and unusual” weapon (as was lifted from Heller…).

First to the types of weaponry “fitting” that description. I believe the key in that lies in the statement “common at the time”. Many construe this to mean we should only have single fire, black powder muskets and bayonets.

To countermand that thought, the intent of the Framers INRE the RKBA had to do with allowing a citizenry to be armed with common weapons of the era. Today, the range of common weapons is vastly different. What may seem “dangerous” to a judge on a bench is an old friend in the hands of a veteran. What the bench considers an “assault weapon” is a piece of equipment in pistol competition world (i.e. Action Pistol and the Olympic shooters). But the Framers’ notion of a citizen militia was one that could protect itself against a corrupt government, and thus requires citizens the access to common weaponry, as soldiers may carry, as personal arms.

INRE your comment:

However, while I agree with you that “The 14th is a further protection of the privileges and rights of the Citizens from the States” and never argued otherwise, it is not clear (nor do you make it clear) what rights specifically the 14th Amendment recognizes.

The individual States *must* recognize, at minimum, the federal Bill of Rights. They cannot make a law in direct contradiction to federal laws. And in fact, each state has their own bill or declaration of rights. Many of which echo much of the federal.

But the “it is not clear what rights specifically the 14th Amendment recognizes” makes if wonder if you prefer a laundry list of “rights” they will recognize. And this is something that cannot, and never should, be done. To itemize rights is to insinuate that what isn’t on the laundry list is no longer a right, and restricts the category.

Frankly, I think both the Bill of Rights, and Section 1 of the 14th Amendment are abundantly clear.

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

“Privileges and immunities” is a very specific statement, and found under Article VI of the Constitution in Section 2.

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

At least twice… Article IV and the 14th Amendment… these are rights not to be infringed, and are in force equally across all states. From legal-dictionary’s brief summary on Article IV’s use of Privileges and Immunities linked above:

The purpose of the clause was to facilitate the unification of the independent states into one nation so that citizens traveling throughout the country would receive the same treatment as the citizens of the states through which they passed.

The privileges and immunities that are protected under Article IV include the right to receive protection from state government; the right to acquire and possess all kinds of property; the right to travel through or reside in any state for purposes of trade, agriculture, or professional endeavors; the right to claim the benefit of the writ of Habeas Corpus; the right to sue and defend actions in court; and the right to receive the same tax treatment as that of the citizens of the taxing state.

This clause forbids a state from unjustly depriving citizens from other states of any rights derived from state citizenship solely on the basis of nonresidence. Yet the Supreme Court has never interpreted it to preclude all deferential treatment of in-state citizens. As a result, the Privileges and Immunities Clause does not bar differential state standards governing the practice of certain professions. Out-of-state doctors, lawyers, and other professionals may be required to prove their competency based on standards that are higher than those applied to their in-state counterparts. Tuition rates at public Colleges and Universities are typically lower for in-state students. Out-of-state residents are charged more for hunting and fishing licenses than are in-state residents. Such discrepancies are generally accepted as justifiable because they advance legitimate state interests.

The Supreme Court has struck down state laws that infringed rights guaranteed by the Privileges and Immunities Clause of Article IV. In Hicklin v. Orbeck, 437 U.S. 518, 98 S. Ct. 2482, 57 L. Ed. 2d 397 (1978), the Court ruled that the state of Alaska failed to show a reasonable purpose for a state law that required employers to give a hiring preference to in-state residents who applied to work on the construction of oil or gas pipelines.

However, the Supreme Court has rarely used the Privileges and Immunities Clause of Article IV to invalidate discriminatory laws. The due process and Equal Protection Clauses of the Fourteenth Amendment are commonly applied to determine the validity of state laws that unjustly discriminate between residents and nonresidents of a state.

Their take on references to the Privileges and Immunities clause in the 14th Amendment is this:

This clause protects a person’s rights as a citizen of the United States from unreasonable State Action or interference.

The privileges and immunities of U.S. citizenship that cannot be unreasonably abridged by state laws include the right to travel from state to state; the right to vote for federal officeholders; the right to enter public lands; the right to petition Congress to redress grievances; the right to inform the national government of a violation of its laws; the right to receive protection from violence when in federal custody; the right to have free access to U.S. seaports; the right to transact business with and engage in administering the functions of the U.S. government; the right to have access to federal courts; and the privilege of the writ of habeas corpus.

US Constitutional rights apply equally thru all the individual states. Period. However the Supreme’s follow a narrow interpretation of the 14th Amendment’s P & I clause, and use the Equal Protection Clause when they question an individual state’s action as Constitutional.

The Court upheld the Louisiana Monopoly law, ruling that the Privileges and Immunities Clause had limited effect because it reached only privileges and immunities guaranteed by U.S. citizenship, not state citizenship. Because the law in question dealt with states’ rights, the Fourteenth Amendment had no effect.

It is for this reason the Ricci firefighters are using not only a Title VII violation of their rights, but also Equal Protection as an argument.

But Maloney needs to be brought before the SCOTUS because the Circuit Courts… never 2nd Amendment friendly anyway… now try to restrict the RKBA, as held by Heller, under the guise of not applicable when you’re dealing with the state instead of the feds. This is just another way of trying to escape the straight forward language that if the federal government has guaranteed a right nationally, the state’s can’t ignore it in their own back yard.. saying “doesn’t apply to us”.

And yet, Sotomayor says just that. Maloney should straighten out this baloney once and for all, giving the states and the Circuit Courts their much needed slap on the wrist.

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@ditto: I don’t think I fully understand your post, so I hope we’re not talking past each other. First, I’m glad you pointed out the distinction between “recognizes” and “grants”, I think a lot of the confusion surrounding the 14th amendment stems from this. However, while I agree with you that “The 14th is a further protection of the privileges and rights of the Citizens from the States” and never argued otherwise, it is not clear (nor do you make it clear) what rights specifically the 14th Amendment recognizes. In particular, the 14th Amendment states:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

But does not make explicit how much of the Bill of Rights is incorporated under “life, liberty, or property”; the question then becomes which of the rights are incorporated and the explicit term “Fundamental” comes from the first decision in which the court ruled on this issue:

the Supreme Court ruled for the first time that the First Amendment freedoms of speech and press “are among the fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States.” [Gitlow v. New York, 268 U.S. 652 (1925)]

The Supreme Court did not say in the Gitlow decision that all the protections of the Bill of Rights applied to the states. But the majority of justices did agree that at least some of these rights limited the powers of state and local governments.

[source: Constitutional Rights Foundation]

The same link at the CRF goes on to detail the rights that have been incorporated (which they cleverly coin the “2nd Bill of Rights”) and the 2nd Amendment is notably absent, which is why 9th Circuit decision (search for “fundamental”) I discussed earlier is an important first step.

And here is an (admittedly long) passage from the Heller decision that Sotomayor relied on which puts everything in context:

“It should be unsurprising that such a significant matter has been for so long judicially unresolved. For most of our history, the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens. Other provisions of the Bill of Rights have similarly remained unilluminated for lengthy periods.This Court first held a law to violate the First Amendment’s guarantee of freedom of speech in 1931, almost 150 years after the Amendment was ratified, see Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931), and it was not until after World War II that we held a law invalid under the Establishment Clause, see Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, ChampaignCty., 333 U. S. 203 (1948).” (53-54)

“Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” (54)

“We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those ‘in common use at the time.’ 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” (55)

[ source: SCOTUSblog ]

and again from SCOTUSblog to re-iterate:

But, only about a year after the Supreme Court’s landmark ruling on gun rights in District of Columbia v. Heller, the Justices could soon be faced with one of the most significant issues left undecided by Heller. That is whether the Second Amendment’s guarantee (as interpreted in Heller) of a personal right to have a gun restricts the power of state and local governments to regulate personal weapons (as it already does for the federal government).

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@ trizzlor

The Constitution does not mention the words “Fundamental” anywhere, much less use it as a description for the rights (immunities) that the Constitution RECOGNIZES. (Which is can never be construed to mean “grants”). The Fourteenth Amendment, Section 1, declares that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The 14th is a further protection of the privileges and rights of the Citizens from the States. It is not as you read it a blanket statement allowing all rights, privileges or immunities to be taken away by the States so long as the condition of due proccess of the law is followed. Following are the words of John Bingham of Ohio who drafted the 14th amendment that was passed by both houses of Congress, (and further Ratified on June 13, 1866:

“Many instances of State injustice and oppression have already occurred in the State legislation of this Union, of flagrant violations of the guarantied privileges of citizens of the United States, for which the national Government furnished and could furnish by law no remedy whatever. Contrary to the express letter of your Constitution, “cruel and unusual punishments” have been inflicted under State laws within this Union upon citizens, not only for crimes committed, but for sacred duty done, for which and against which the Government of the United States had provided no remedy and could provide none

The Bill of Rights is the first 10 amendments to the Constitution, which spell out the immunities of the citizens: http://www.archives.gov/exhibits/charters/bill_of_rights.html

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The Bill of Rights are Immunities reserved of the people (Which means they belong to the people, NOT the States or Federal government). Just as the 17th is reserved to each State.

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@MataHarley: Indeed, this whole thread has been a real education. It’s 2AM here and I’m genuinely excited thinking about how these rulings will get interpreted in the coming weeks. Cheers!

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I was referring to Wikipedia for the definition of Fundamental right; for that their definition seems sound – Fundamental rights are those that have been incorporated into the 14th Ammendment and therefore cannot be infringed upon at the federal and state level. From what I can tell, the 2nd Amendment has not been deemed Fundamental by the Supreme Court and thus there was no precedent to treat it as such. A recent decision by the 9th Circuit is attempting to change this and I think it’s the right way to go.

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Scary sheeeeet indeed, triz. Interesting contribution on the political termperment of the court. Killer blog, SCOTUSblog is. Many viewpoints, and all get the brain cells in action.

But with the “confirmation” pressure on their opinion language comes my comment that if SCOTUS reverses Ricci, there is ample reason to kick Sotomayor to the curb.

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