Multiple law professors—a libertarian and several liberals—together support 14th Amendment challenge

[TPaine7]

Professors' brief: http://www.chicagoguncase.com/wp-content/uploads/2009/07/cac_cert_stage.pdf

The brief supports the challenge to Chicago's claim that the Second Amendment doesn't apply to them—that states, cities, and local governments are not bound by part of the Bill of Rights!

The law professors who filed this brief, all published authorities on the Fourteenth Amendment, include several liberals and a libertarian. The last one, Professor Adam Winkler of UCLA, even filed a brief supporting the D.C. gun ban!

Professor Volokh noted that the document was signed by Professors Balkin, Barnett, Curtis, Lawrence, and Winkler. (I don’t know why Professor Richard L. Ames didn’t make Volokh’s list.)

Of these, only our own Randy Barnett is known as a general pro-gun-rights from the conservative or libertarian (in his case, of course libertarian) camp, though Lawrence might also be a left libertarian (I don't know him as well as I know the others).

On the other hand, Balkin is a noted liberal. Curtis is also a liberal, though one with a lower public profile (but to my knowledge highly respected among law professors, and certainly highly respected by me, as a legal historian). Winkler is a liberal, a prominent critic of the Heller decision, and a supporter of the constitutionality of the D.C. gun ban -- he had filed a brief, together with Erwin Chemerinsky, on D.C.'s side in Heller.
Source: volokh.com

I’ve been trying to explain to some antis hereabouts that the Fourteenth Amendment has a clear and decisive history and text. The case for incorporation is beyond honest informed doubt. It’s so clear that a gun rights opponent who filed a brief in support of the District’s ban sees that the Second Amendment it must be incorporated.

(Apparently he thinks that banning handguns is a "reasonable" restriction on the Second Amendment, and the brief takes no position on the issue—page 2 of the brief. No doubt, that allowed them all to sign in good faith. Heller, however, was clear enough on the point to make the professors' internal differences moot.)

Incorporation is crystal clear. The rights that are protected in the District must be protected in the states, if there is any logic or consistency at all. Of course the Supreme Court can still abuse their authority to deny reality (see Dred Scott and the bogus cases referenced in the brief crying out for repudiation now).

I’m still hoping none of the justices want history to see them as the second coming of Dred Scott. And, of course, that they don’t dodge the case.

*Crosses fingers*

[TPaine7]

1. Hey folks, if you think others should understand the reality of this

issue go ahead and recommend it.

The brief is educational.

[ananda]

2. Isn't amendment part of the Constitutional process?

I mean, this country very desperately needs serious gun control.

[TPaine7]

3. Absolutely

I highly recommend that those who are opposed to keeping and bearing arms in America use the constitutional amendment process. That is the honest, respectable and legitimate way to change the document's meaning.

Many want to use shortcuts.

[Pullo]

17. Bingo.

The anti's should start a campaign to amend the constitution if they really don't want citizens to have the RKBA. Its straightforward, honest, and constitutional......qualities many anti's seem to see little value in, unfortunately.

[eqfan592]

5. No, this country does NOT desperately need serious gun control.

What it needs is to go after the root causes of violence and crime, and trust me when I say that guns have nothing to do with the root causes of crime.

But please, if you do want to bring about more gun control, then do the honorable thing and suggest to amend the Constitution.

[bossy22]

6. atleast that would be an honest

way of going about it

[jody]

13. Agree, we need more law-abiding citizens trained to keep, bear, and use arms for self-defense.

That's the only gun-control criminals understand.

[Recursion]

20. Yes, please, go for it

The place to address gun control is the Constitutional Amendment process.

[Tuesday Afternoon]

4. Do you think it would help this discussion if one posted the

14th amendment along with Dred Scott...........

[spin]

10. It might. Therefore I'll post what you asked...

U.S. Constitution: Fourteenth Amendment

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. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section. 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
http://caselaw.lp.findlaw.com/data/constitution/amendment14/

Dred Scott

Dred Scott (1799 – September 17, 1858), was a slave in the United States who sued unsuccessfully in St. Louis, Missouri for his freedom in the infamous Dred Scott v. Sandford case of 1857. No one knows exactly when he was born. His case was based on the fact that he and his wife Harriet Scott were slaves, but had lived in states and territories where slavery was illegal, including Illinois and Minnesota (which was then part of the Wisconsin Territory). The United States Supreme Court ruled seven to two against Scott, finding that neither he, nor any person of African ancestry, could claim citizenship in the United States, and that therefore Scott could not bring suit in federal court under diversity of citizenship rules. Moreover, Scott's temporary residence outside Missouri did not effect his emancipation under the Missouri Compromise, since reaching that result would deprive Scott's owner of his property.
http://en.wikipedia.org/wiki/Dred_Scott

Dred Scott v. Sandford,<1> 60 U.S. (19 How.) 393

(1857), was a decision by the United States Supreme Court that ruled that people of African descent imported into the United States and held as slaves, or their descendants<2>—whether or not they were slaves—were not protected by the Constitution and could never be citizens of the United States. It also held that the United States Congress had no authority to prohibit slavery in federal territories. The Court also ruled that because slaves were not citizens, they could not sue in court. Lastly, the Court ruled that slaves—as chattel or private property—could not be taken away from their owners without due process. The Supreme Court's decision was written by Chief Justice Roger B. Taney.

Although Dred Scott was never overruled by the Supreme Court itself, in the Slaughter-House Cases of 1873 the Court stated that at least one part of it had already been overruled in 1868 by the Fourteenth Amendment:

The first observation we have to make on this clause is, that it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States.<3><4>
http://en.wikipedia.org/wiki/Dred_Scott_v._Sandford

[jgraz]

7. Dred Scott: the Godwin of the gungeon

I understand your emotional investment in the outcome of this case, but comparing it to Dred Scott is hysterical and offensive.

[Fire_Medic_Dave]

11. Not offensive in the slightest.

[pipoman]

12. You do realize that Dred Scott was among the first cases

effected by incorporation under the 14th, no?

[jody]

14. You do know that the right to keep and bear arms for self-defense “is not a right granted by the

Constitution. Neither is it in any manner dependent upon that instrument for its existence.", DON'T YOU?

See SCOTUS United States v. Cruikshank, 92 U. S. 542, 553 (1876)

If you don't then you need to learn more about natural, inherent, inalienable/unalienable rights.

[jgraz]

18. You pro-gun folks do love to play Rosa Parks, don't you?

:eyes:

[jody]

19. RKBA is a civil right but was Rosa Parks a pro-RKBA supporter? n/t

[gorfle]

22. Rights are rights. n/t

.

[Tim01]

8. K&R nt

[SteveM]

9. A strengthened 2A is a natural outgrowth of the "Civil Rights Movement...."

From the 1950s through at least the 80s, the Civil Rights Movement has seen the demise of Jim Crow-era laws and the wide-spread use of the 14th Amendment's "incorporation clause."

But it seems Chicago is channeling Theodore Bilbo from the grave.

[ProgressiveProfessor]

15. We need to keep reminding everyone about the racist roots of gun control

and the racist and classist effects today.

[SteveM]

16. So many folks have mis-identified strong 2A stands with racism...

not realizing that the very laws designed to control/ban firearms have all been tried before -- in the South. One of the best summaries of the history of racist gun laws can be found at www.georgiacarry.org
Search locally for "Heller brief," submitted in the SCOTUS finding.

[jody]

21. Ignorance and stupidity are alive and thriving in the U.S. n/t