Today we are living in great and important times for individual liberty and freedom. Yesterday the Supreme Court heard McDonald v. Chicago. The case, was the logical follow to the court’s 5 to 4 decision in District of Columbia v. Heller. That 2008 decision established for the first time that the Second Amendment’s “right to keep and bear arms” referred to an individual right, not one related to military service. But the decision that there is a right to keep a gun in one’s home did not extend beyond the federal government and its enclaves such as Washington.(1)
It’s a big deal not only for 2nd Amendment advocates but for anyone who believes that the 14th Amendment should be restored to its original meaning that the 14th Amendment, whose Section 1 lets no state “abridge the privileges or immunities of citizens of United States,” “deprive any person of life, liberty, or property, without due process of law” or “deny any person…the equal protection of the laws.” (2)
Written by Lincoln’s political heirs shortly after his assassination, the amendment was intended to fix in the Constitution the “new birth of freedom” the president had promised in the Gettysburg Address, says Mr. Kendall, the Constitutional Accountability Center’s founder and president.
Before the Civil War, courts held that most provisions of the 1789 Constitution and the Bill of Rights only limited federal action — and states were free to recognize or ignore many rights as they chose. The theory was essential to reconciling slavery with a country founded on the Declaration of Independence’s claim that “all men are created equal.”
John Bingham, an Ohio congressman who served on the military commission that tried the Lincoln assassination conspirators, drafted Section 1 to correct what he considered fundamental flaws in the Constitution.
During ratification debates, House Speaker Schuyler Colfax said the 14th Amendment would become “the gem of the Constitution,” because “it is the Declaration of Independence placed immutably and forever” there. (2)
“The Gem of the Constitution.”
The Gem was soon tarnished. By 1873 a strong Democratic Party backlash against both the Reconstruction Amendment freeing of slaves but a continued desire to segregate Blacks and limit the rights of Whites who supported the integration of Blacks into Southern Society on the very Supreme Court that was to apply the 14th Amendment ended in gutting the 14th Amendment with the Slaughter-house cases.
The Supreme Court, which had battled Lincoln during much of the Civil War, soon restricted the Reconstruction amendments’ impact. In an 1873 ruling known as the Slaughter-House Cases, a 5-4 Supreme Court effectively nullified the Privileges or Immunities Clause. Rather than applying the Bill of Rights to the states or requiring them to recognize fundamental freedoms, the court found that the clause covered only a handful of relatively minor privileges that fell specifically under federal control, such as “the right to use navigable waterways.”
A series of decisions followed that limited federal power to protect civil liberties. An 1886 decision, Presser v. Illinois, held that the Second Amendment didn’t touch the states’ powers to restrict weapons. (2)
The “privileges or immunities” clause
What is at stake is the restoration of the privileges or immunities clause of the 14th Amendment. In essence the most important guarantee of personal freedom and liberty of the Constitution. So many local ordinances and State laws have over the years have “deprive[d] … person[s] of life, liberty, or property, without due process of law” or “den[ied] … person[s]…the equal protection of the laws.” because a citizen was forced down a narrow path to restore ones rights with the “due process” clause. Governments have been able to prevail over the years by simply affording kangaroo courts and one sided hearings for the taking of personal liberty and property. The restoration of the privileges or immunities clause will once again secure the rights of the individual and force government to restore many of those rights that have been taken away for some perceived view of the greater good.
Restoration will mean many of those local ordinances that have controlled the use of property and personal conduct will be eventually held Unconstitutional. The obligations will be on government to protect your privilege to own property in a manner consistent with your vision of happiness, not some anal retentive asshole down the street that wants everyone to live a cookie cutter copy of his or her life.
The Restoration of the “privileges or immunities” clause will be signal once and for all times, that the Civil War of 1861-1865 is over and declare clearly and unambiguously that “All men are created equal,” and that We, truly do, hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
We truly do live in Great Times. God Bless the Supreme Court and guide them to restore the full meaning of the 14th Amendment.