Scalia: Only African-Americans Have Second Amendment Rights Against states!

Lifted from an e-mail from Beverly Mann, the following is a short explanation and links to relevant cases concerning the words of Justice Scalia as reported in California Lawyer, second question down from the beginning about the 14th amendment and sex discrimination.

Beverly Mann writes:

Scalia: Only African-Americans Have Second Amendment Rights Against States!

Here are the two sections of the 14th Amendment that are relevant today:

Section. 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.

Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

The drafters of the Amendment clearly had intended that the privileges-and-immunities clause make all of the Constitution’s rights that accrue to individuals—all the rights in the Bill of Rights, and such rights that are in the original Constitution (e.g., habeas corpus, the bar against ex posto facto applications of laws, the prohibition of bills of attainder)—apply as against the states (and local governments, which are incorporated or in other ways operate under state law) in the same manner in which those rights apply as against the federal government. The language of the clause is clear; that is what the clause means.

But in 1873, the Supreme Court, in an opinion known as The Slaughter House Cases, effectively nullified the privileges-and-immunities clause. Early in the 20th century, though, the Court began taking specific provisions of the Constitution that grant rights to individuals and, in separate Supreme Court opinions, “incorporating” one after another of those rights to apply to individuals as against state and local governments—but only those provisions that grant what the Court itself pronounces a “fundamental” right; they’ve never held that the entire Bill of Rights applies as against state and local governments.

This is known as the “incorporation” doctrine. And of course it makes the justices the overt arbiters of what is a fundamental constitutional right and what is a constitutional right that is not fundamental and that therefore is a constitutional right that is not sufficiently fundamental that it limits state and local government power just as it does the federal government’s power.

This ongoing gimmickry became a hot issue in some legal circles last year when the Court agreed to hear a case called McDonald v. Chicago in order to decide whether the Second Amendment (gun-ownership rights) bars state and local governments from enacting laws that infringe upon what the Court two years earlier had held, in a case called
District of Columbia v. Heller is a right of the individual, under the Second Amendment, to “bear arms.” Because the District of Columbia is not a state but is instead part of the federal government, the anti-gun-ownership ordinance at issue in Heller did not address whether this Second Amendment right that individuals now have to bear arms is a fundamental one and therefore applicable as against state and local governments. That was supposed to be, and turned out to be, the issue in McDonald, which concerned a Chicago ordinance.

But while McDonald was pending at the Court, several groups and pundits, some of the left, others or the right, began suggesting (including in one or two friend-of-court briefs filed with Court by organizations) that the Court simply overrule The Slaughter-House Cases opinion and reinstate the privileges-and-immunities clause to its original and textual meaning. In 1999, in a terrific opinion by Justice Stevens in a case called Saenz v. Roe, the Court actually did rely on the textual meaning of the privileges-and-immunities clause, and it appeared to signal a return of the clause to its original meaning and intended usage. (Rehnquist and Thomas dissented from the opinion, but Scalia did not.) But the Court never again used the privileges-and-immunities clause. Civil-libertarians of the right and left hoped the Court would use McDonald to formally reinstate the clause’s original meaning.

But it didn’t. Instead, the 5-4 opinion simply decreed the Second Amendment right of individuals to bear arms a fundamental constitutional right (surprise!) and therefore one that state and local governments can’t abridge.

Scalia, unlike Thomas, claims to be first a “textualist,” someone who bases his interpretations on the plain language of the provision in the Constitution or statute at issue, and only second an “originalist.” Except, that is, when the text clearly says something that doesn’t serve the interests of Scalia’s political ideology. So the words “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” actually mean “nor shall any State deprive any corporate person, Republican presidential candidate, religious person, or person who owns property whose value has been significantly reduced by local zoning or state environmental laws, of life, liberty, or property, without due process of law; nor deny to any such person within its jurisdiction the equal protection of the laws.”

OK, and black persons are protected, too.

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