Ginsburg’s Comment

I wouldn’t read a whole lot into the anti-Heller comments by Justice Ginsburg at a luncheon of the Harvard Club in Washington D.C. — a venue where Heller, no doubt, is not all that popular a decision. I guess I agree most with Orin Kerr on this one:

I don’t think a lunch speech at a restaurant for a college alumni group on the general topic of dissents — a topic she has talked about before — is the place to plant an idea in the public consciousness. Plus, I don’t think the public consciousness includes a view on overruling the Slaughterhouse cases.

If the report is accurate, though, it raises the possibility that the remaining dissenters in Heller may stick to their Heller dissent and conclude that the the right recognized in Heller doesn’t doesn’t apply to the states because Heller is wrong. In that case, the case presumably boils down to Kennedy and Sotomayor.

There’s been speculation that perhaps some of the dissenters in Heller would be willing to rule in favor of incorporation, Heller being a done deal and a lost argument. This would seem to indicate that might be a bit optimistic. If the dissenters are still in firm believe that Heller was wrongly decided, they are not going to agree to further entrench the decision.

This makes the work Dave Hardy, David Young, and others are doing a lot more important in discrediting the historical basis of the Stevens dissent, and works like Dave Kopel’s are important for discrediting any modern reliance.  A majority of Americans believe that the Second Amendment protects and individual right, and that right includes keeping a handgun in the home for self-defense.  That much should not be controversial.  We can argue over the rest of the details as they come up.

4 thoughts on “Ginsburg’s Comment”

  1. I wish to state that the Supreme court, in the Slaughterhouse Cases, held that because of the Fourteenth Amendment there were now two separate and distinct citizens under the Constitution of the United States; a citizen of the United States, under the Fourteenth Amendment and a citizen of the several States, under Article IV, Section 2, Clause 1 [FOOTNOTE]:

        â€œWe think this distinction and its explicit recognition in this Amendment (the 14th Amendment) of great weight in this argument, because the next paragraph of this same section (first section, second clause), which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several states. The argument, however, in favor of the plaintiffs, rests wholly on the assumption that the citizenship is the same and the privileges and immunities guaranteed by the clause are the same.” 83 U.S. 36 (1873), page 74.


        â€œIn the Constitution of the United States, which superseded the Articles of Confederation, the corresponding provision is found in section two of the fourth article, in the following words: ‘The citizens of each State shall be entitled to all the privileges and immunities of citizens OF the several States.’ ” 83 U.S. 36 (1873), page 75.

    The last was later reaffirmed in Cole v. Cunningham:

        â€œThe intention of section 2, Article IV (of the Constitution), was to confer on the citizens of the several States a general citizenship.” Cole v. Cunningham: 133 U.S. 107, 113-114 (1890).

    The privileges and immunities of citizens of the several states are those described by Corfield, cited in the Slaughterhouse Cases. This is reaffirmed in Hodges v. United States:

        â€œIn the Slaughter House Cases, 16 Wall. 36, 76, in defining the privileges and immunities of citizens of the several States, this is quoted from the opinion of Mr. Justice Washington in Corfield v. Coryell, 4 Wash. Cir. Ct. 371, 380.” Hodges v. United States: 203 U.S. 1, at 15 (1906).

    So there are now two citizens under the Constitution of the United States. One needs to find out information on both. For a citizen of the United States that is easy. Just about anywhere. For a citizen of the several States one will have to begin here:



    The Effects of the Fourteenth Amendment on the Constitution of the United States


    A Look At Corfield (On Citizenship)

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