Posted February 06, 2009, on the American Constitution Society blog:
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In a seemingly surprising move, the progressive Constitutional Accountability Center (CAC) has urged a federal appeals court to find that the Constitution protects an individual right to bear arms from state infringement. The group, in a Text & History Blog post, however, notes that the only argument it makes centers on reviving the Fourteenth Amendment’s Privileges or Immunities Clause. The case before the 7th U.S. Circuit Court of Appeals involves appeals of lower federal court decisions that the 14th Amendment does not protect the individual right to bear arms from state laws or actions regulating guns. CAC argues in its brief filed on behalf of leading constitutional scholars, like Yale Law School’s Jack Balkin, that the Privileges or Immunities Clause should be reconsidered by the Supreme Court as guaranteeing “substantive fundamental rights.” Additionally, the case gives the group a chance to “bolster progressive efforts to ensure protection of a broad range of civil rights guaranteed by the Constitution.”
The group’s brief also “brings to the fore the surprisingly progressive Reconstruction history of the right to bear arms. It shows that the framers of the Fourteenth Amendment sought to constitutionally protect this right against state infringement, in large part because they wanted the newly freed slaves to have the means to protect themselves, their families and their property against well-armed former rebels.”
In an interview with ACS, Doug Kendall, CAC’s founder and president, explained that the Fourteenth Amendment’s Privileges or Immunities Clause was intended to be the Constitution’s pivotal protector of fundamental rights, but was essentially stripped of its meaning by an 1873 Supreme Court ruling. Kendall says it’s long past time for the clause to be returned to its rightful place in constitutional jurisprudence. Video of the interview is available here.
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3 Comments:
Are you sure that the intent was not to have the freed slaves call 911, wait, and hope for the best?
That would be the progressive approach, wouldn't it?
" In a seemingly surprising move, the progressive Constitutional Accountability Center (CAC) has urged a federal appeals court to find that the Constitution protects an individual right to bear arms from state infringement. "
I don't understand just how this is surprising as IMHO its a win-win for both the big L and little l liberals . On the one hand it " preempts " home rule which is the Brady liberal wet dream and on the other it could put an end to such nonsense as a FOID card . Each side here is a hobo seeing a fresh pie set on a windowsill to cool , once the pie is there its just a matter of how you divide it up . Kinda like Heller , We now have not only an enumerated right , but a supreme tested right . Right to just what tho is a big vague, and must be fleshed out case by case . Much like the rest of the bill of rights. Incorporation is real similar in the sense that we will have to establish a standard to incorporate via the same court choices . As of now states can make a 10th argument that the .fed cant impose things ( good or bad ) . If incorperation happens under the 14th then it simply means that to paraphrase .. What is good for Chicago is good for Cheyenne. or vica versa depending on which circut the case is brought .
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