The Washington Times seems to be a bit nervous about the idea of McDonald, not for gun reasons but because of how it might be incorporated:
Many have heard about the historic gun rights case going to the Supreme Court. Fewer have heard that this is also a major case for businesses and family values. It could lead to anything from court-ordered Obamacare to same-sex marriage. This is the biggest case of the year, and everyone has a stake in it.
I think that’s more than a bit hysterical. Dave Hardy points out why. The Supreme Court, if they choose to overturn Cruikshank, or even go so far as to overturn SlaughterHouse, can offer any structure like they for incorporation under “Privileges or Immunities“. In other words, they can limit it, just as they have limited incorporation under the Due Process Clause.
I am hoping the Court goes with overturning SlaughterHouse, quoting the Petitioner’s Brief in McDonald:
SlaughterHouse’s illegitimacy has long been all- but-universally understood. It deserves to be acknowledged by this Court. Because SlaughterHouse rests on language not actually in the Constitution, contradicts the Fourteenth Amendment’s original textual meaning, defies the Framers’ intent, and supplies a nonsensical definition for Section One’s key protection of civil rights, overruling this error and its progeny remains imperative. No valid reliance interests flow from the wrongful deprivation of constitutional liberties. The reliance interest to be fulfilled remains Americans’ expectation that the constitutional amendment their ancestors ratified to protect their rights from state infringement be given its full effect.
Remarkably well said I think. I don’t think conservatives should be frightened of this ruling, as it is correcting a wrong that should never have been perpetrated in the first place.
Incorporating unenumerated negative rights (like the right to Self Defense) as those were understood at 1789 and 1868 seems like a far more limiting structure than “substantive due process.” SDP can be whatever 5 justices want it to mean where P or I at least has textual and historical grounding. Let those wishing to find an unenumerated right have the burden of proving it as being well understood at the historically relevant time. Luckily Self Defense was so understood.
It’s also amusing to see “conservatives” disagreeing with Justice Thomas, who will certainly vote for P or I incorporation – just read his dissent in Saenz v. Roe.
-Gene
In laying out the list of typical right-wing fears: abortion, gay marriage, etc.–the Washington Times writer seems to have forgotten Roe v. Wade already effectively established one of the rights they are warning against. Seems a little late to be closing the barn door on that one.
But overall they have a point that quite a number of rights could created (or “validated” depending on your view) if the court decides to expand the definition and number of “substantive rights” guaranteed to Americans under the 14th and even 10th Amendment. One interesting case that, if referenced in McDonald v. Chicago, might do exactly what the Washington Times apparently fears is Meyer v. Nebraska, which declared a long list of rights which can never be abridged. If this case were brought into the McDonald discussion, then gay marriage could actually be on the table. The specific issue in Meyer v. Nebraska was that the state, in its infinite wisdom, banned the teaching of German during WWI (which would be like banning the teaching of Arabic now–not a really good idea when you’re trying to train the next generation of linguists). In the ruling, SCOTUS declared that certain rights are simply too basic to ever be abridged.
The specific language is as follows: “The ‘liberty’ protected by the Due Process clause ‘[w]ithout doubt…denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized…as essential to the orderly pursuit of happiness by free men.’ ” (quoted from Wikipedia.)
As someone who couldn’t care less what consenting adults decide to do in the privacy of their own homes or hospital rooms, I’d welcome a restoration of our full gun owning rights in whatever manner it comes about. If the right-wing ends up scuttling a favorable ruling on McDonald out of fear over the cultural wars, it will be a sad day indeed.
It seems like every argument I’ve seen against SCOTUS overturning Slaughterhouse is based not on what the P&I clause means, but on whether we should follow what it says.
Arguing that we shouldn’t follow the word and intent of any part of the Constitution because of what the courts might do with it is making the wrong argument. If someone is afraid of what the courts will do if the P&I clause is restored, they need to work on changing the Amendment, not arguing for selectively following the Constitution.
Once the door to selective application of the Constitution is opened, it will be nearly impossible to shut, and can lead to horrible abuses.
Jake, exactly. These conservatives (along with some from other camps) that usually argue for following the Constitution literally are being very hypocritical.
I, as have many others, always urge those on the anti-gun side to resort to Article 5 if they don’t like the Second Amendment. It is the honest route to go.
This should equally apply to those that don’t like what the 14th Amendment says.
Overturning Slaughterhouse is my hope. It essentially returns immunities from regulation of private citizens and private entities like businesses.
With all expansions of rights it could bean expansion of gay marriage that is true. But if like freedom you have to accept freedom for all not just your point of view.