“A Vain and Idle Enactment”: Could McDonald v. Chicago Un-Slaughter the Privileges or Immunities Clause?

Alan Gura, Partner, Gura & Possessky, PLLC; Lead Counsel, District of Columbia v. Heller; Lead Counsel, McDonald v. Chicago

Randy Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center

Kurt Lash, James P. Bradley Chair of Constitutional Law, Loyola Law School; Author, The Origins of the Privileges or Immunities Clause (Georgetown Law Journal, forthcoming)

David Gans, Program Director, Constitutional Accountability Center; Author, The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment

This event is open to the public and sponsored by The Georgetown Law Journal, the Georgetown Law chapters of the American Constitution Society for Law and Policy and the Federalist Society for Law & Public Policy Studies, and the Georgetown Law Militia.

Friday, November 13, 2009, 12:30 – 2:30 p.m.
Georgetown University Law Center
McDonough Hall – Hart Auditorium
600 New Jersey Avenue, NW
Washington, D.C. 20001

The panelists will discuss the current Supreme Court case McDonald v. Chicago, in which the Court will decide whether the 2nd Amendment is incorporated to apply to the states. Following up on its decision in District of Columbia v. Heller, the Court may decide to breathe life into the Privileges or Immunities Clause of the 14th Amendment, a clause which has essentially remained “vain and idle” since the Slaughterhouse cases in 1873.

The panelists will provide a historical understanding of the Privileges or Immunities Clause, whether it can properly serve as a vehicle for incorporation, and the implications that would result if the Court adopts this position.

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3 Responses

  1. Joe says:

    Wow. That sounds like some really old casework.

  2. Dan Goodman says:

    To all,

    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]:

        “We 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.

    And:

        “In 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:

        “The 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:

        “In 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:

    http://citizenoftheseveralstates.webs.com/index.htm

    ____________

    FOOTNOTE

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

    http://www.australia.to/index.php?option=com_content&view=article&id=15882

    Also,

    A Look At Corfield (On Citizenship)

    http://www.australia.to/index.php?option=com_content&view=article&id=16868

    ____

  3. Dan Goodman says:

    To all,

    I am writing to inform you that the links I provided in Comment 1 no longer work. The new locations for them are:

    ____________

    FOOTNOTE

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

    http://www.australia.to/2010/index.php?option=com_content&view=article&id=327

    Also,

    A Look At Corfield (On Citizenship)

    http://www.australia.to/2010/index.php?option=com_content&view=article&id=331

    ____________

    There is also the following which I think would be appropriate.

    Comment on Petitioner’s Brief: McDonald v. City of Chicago

    http://www.australia.to/2010/index.php?option=com_content&view=category&layout=blog&id=91&Itemid=126

    http://www.americanchronicle.com/articles/view/136777

    ____________