S. Ct. Cert Grant re 2d Amdt Incorporation Issue

[Francisco Forrest Martin]

Was George Wilson's opposition to Native American citizenship based on the extension of the privilege to bear arms as an individual right or a tribal right?

Francisco Forrest Martin

-----Original Message-----
>From: Earl Maltz <emaltz at camden.rutgers.edu>
>Sent: Oct 1, 2009 6:36 AM
>To: Sanford Levinson <SLevinson at law.utexas.edu>, "Rosenthal, Lawrence" <rosentha at chapman.edu>, David Bernstein <DavidEBernstein at aol.com>, Scott Idleman <sidleman at wi.rr.com>, "conlawprof at lists.ucla.edu" <conlawprof at lists.ucla.edu>
>Subject: RE: S. Ct. Cert Grant re 2d Amdt Incorporation Issue
>
>One of the strongest pieces of evidence on the issue of whether some 
>right to bear arms was generally viewed as one of the privileges and 
>immunities of national citizenship (irrespective of the incorporation 
>issue) involves Native Americans.  Republican George Williams of 
>Oregon, a member of the Joint Committee on Reconstruction, opposed 
>the grant of citizenship to Native Americans because it would require 
>states to allow them to bear arms.  See. p. 573.
>
>At 09:47 PM 9/30/2009, Sanford Levinson wrote:
>>This is a helpful posting.  I think things get even more complicated 
>>if it is the case that newly freed slaves wanted to be able to carry 
>>arms as they went into public space, where they might have been even 
>>more vulnerable to the Klan insurgency than in their own homes.  But 
>>Scalia seemed to go out of his way to limit the effective right in 
>>Heller to the privacy of one's home.  From my perspective, this 
>>makes it even more foolish to believe that the case can by resolved 
>>by some fanciful reconstruction (no pun intended) of understandings 
>>in 1868.  I think it less controversial simply to say that at some 
>>time in our history, it because widely believed among a sufficient 
>>percentage of the population that there just was (some kind of) a 
>>right to bear arms in some contexts.  But the judges will be making 
>>up the actual content of any such right as they go along, and I wish 
>>they were honest enough to admit it.
>>
>>sandy
>>
>>________________________________________
>>From: Rosenthal, Lawrence [rosentha at chapman.edu]
>>Sent: Wednesday, September 30, 2009 7:02 PM
>>To: David Bernstein; Sanford Levinson; Scott Idleman; 
>>conlawprof at lists.ucla.edu
>>Subject: RE: S. Ct. Cert Grant re 2d Amdt Incorporation Issue
>>
>>I am a partisan on this issue, having filed an amicus brief on 
>>behalf of the U.S. Conference of Mayors in the court of appeals, so 
>>my views should be taken with a grain of salt.  Nevertheless, I find 
>>most of the references to self-defense in the debates leading to the 
>>adoption of the Civil Rights Act. the Freedmen's Bureau Act, and the 
>>Fourteenth Amendment to be ambiguous.  It is unclear whether the 
>>problem in the South was thought to be a denial of a substantive 
>>right to bear arms, or only discriminatory denials of the right to 
>>bear arms that left freedmen and union sympathizers 
>>defenseless.  Moreover, the text of the Freedmen's Bureau Act 
>>suggests that the act was intended only to prohibit discrimination 
>>with respect to the right to bear arms.
>>
>>As it happens, in Justice Thomas's dissent in Saenz v. Rose 
>>suggesting a reexamination of Slaughter-House, he placed primary 
>>reliance on Justice Washington's opinion in Corfield v. Coryell, 
>>which does not identify the right to bear arms as a fundamental 
>>right, and cited with approval John Harrison's article, which argues 
>>that Privileges or Immunities Clause should be understood as a 
>>nondiscrimination obligation and not a guarantee of substantive rights.
>>
>>Of course, these issues are very complicated, and there is much 
>>historical evidence on both sides of the debate.  My own guess is 
>>that given how much confusion there is in the historical evidence, 
>>and how much precedent weighs against using the Privileges or 
>>Immunities Clause as a vehicle for incorporation, the Court will 
>>stick with due process selective incorporation.
>>
>>Larry Rosenthal
>>Chapman University School of Law
>>
>>________________________________
>>
>>From: conlawprof-bounces at lists.ucla.edu on behalf of David Bernstein
>>Sent: Wed 9/30/2009 1:27 PM
>>To: 'Sanford Levinson'; 'Scott Idleman'; conlawprof at lists.ucla.edu
>>Subject: RE: S. Ct. Cert Grant re 2d Amdt Incorporation Issue
>>
>>
>>
>>My guess is that Thomas will likely be strongly influenced by the 
>>argument that Framers of the 14th Amendment specifically wanted to 
>>protect the right to bear arms against attempts by unreconstructed 
>>southern whites to prevent freedmen and northern "carpetbaggers" 
>>from arming themselves in self-defense.  But he'll rely on the 
>>Privileges or Immunities Clause, not Due Process.  (FWIW, I think 
>>there's actually a STRONGER historical for a 14th Amendment 
>>individual right to bear arms than for a Second Amendment right; 
>>even if the Second Amendment right is modified by the militia 
>>language, by 1868 the right to bear arms was considered an individual one).
>>
>>
>>
>>By the way, is that direct quote below from the cert grant?  Because 
>>of course it's Privileges OR Immunities, not Privileges AND Immunities.
>>
>>
>>
>>________________________________
>>
>>From: conlawprof-bounces at lists.ucla.edu 
>>[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sanford Levinson
>>Sent: Wednesday, September 30, 2009 3:58 PM
>>To: Scott Idleman; conlawprof at lists.ucla.edu
>>Subject: RE: S. Ct. Cert Grant re 2d Amdt Incorporation Issue
>>
>>
>>
>>So my question, especially to Scott, is to predict Thomas's 
>>vote.   One has to have an unusually strong theory of incorporation 
>>to strip states of their power to control firearms, and I just don't 
>>understand how he could get there given some of his skepticism about 
>>incorporation per se.  Or would he simply say that this is indeed a 
>>"privilege of immunity" of citizenship, and that it doesn't matter 
>>that it's an unenumerated right?  (Might you have a fragmented 
>>decision in which a majority of justices agree that there's no one 
>>theory that justifies invalidating the Chicago ordinance, but that 
>>there is a majority who agree that the ordinance is invalid anyway 
>>(shades of Bush v. Gore)?)
>>
>>
>>
>>In any event, this should keep all of us busy in our theorizing and 
>>our predictions!
>>
>>
>>
>>sandy
>>
>>________________________________
>>
>>From: conlawprof-bounces at lists.ucla.edu 
>>[conlawprof-bounces at lists.ucla.edu] On Behalf Of Scott Idleman 
>>[sidleman at wi.rr.com]
>>Sent: Wednesday, September 30, 2009 12:26 PM
>>To: conlawprof at lists.ucla.edu
>>Subject: S. Ct. Cert Grant re 2d Amdt Incorporation Issue
>>
>>According to BNA, the Court today granted cert in the following case:
>>
>>
>>
>>McDonald v. Chicago, Ill., No. 08-1521. Is the Second Amendment 
>>right to keep and bear arms incorporated as against the states by 
>>the 14th Amendment's privileges and immunities clause or the 14th 
>>Amendment's due process clause?
>>_______________________________________________
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>_______________________________________________
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>Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.