interestin g items (2) in today's CATO Daily Dispatch


July 21, 2003, 04:35 PM

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Nathaniel Firethorn
July 21, 2003, 05:18 PM
Cato Experts: NRA, Sen. Hatch Try to Prevent Supreme Court from Hearing 2nd Amendment Case
Hatch's "D.C. Personal Protection Act" would invalidate D.C. residents' lawsuit

WASHINGTON--On Tuesday, July 15, Senator Orrin Hatch (R-Utah) introduced a bill aimed at repealing many of the anti-gun laws in the District of Columbia. If signed into law, the bill, known as the D.C. Personal Protection Act, would render invalid a pending Second Amendment lawsuit filed by six Washington, D.C. residents, including an employee of the Cato Institute. Wow.

Not sure I like the idea of Cato picking a fight with the NRA, but perhaps they need this kind of a wake-up call.

- pdmoderator

Jim March
July 21, 2003, 06:17 PM
I would debate you long and hard about who's picking the fight here (hint: it ain't Cato!).


Nathaniel Firethorn
July 21, 2003, 06:26 PM

- pdmoderator

Jim March
July 21, 2003, 06:57 PM
Well let's start with the two lawsuits:

1) Levy and other Cato-connected people hire Stephen Halbrook to do preliminary legal research for a DC case. At this point, before anything is filed, NRA-connected people across the nation brag about how Cato and NRA are jointly going to go head-to-head with the DC gun ban.

2) Levy and company file a dead-simple RKBA-based lawsuit in DC (Cato is not *directly* involved). No extraneous issues, no need for even a discovery process, Ashcroft is NOT a defendant, etc. They happen to draw a reasonable judge. While that doesn't mean they'll necessarily win at the trial court level, it DOES mean there won't be any extra farting around, time delays and the like so win or lose round one, they can start up the appeals ladder quickly.

3) Less than two weeks later, NRA files "the behemoth" suit - it's based on a whole pile of side-issues in addition to plain ol' RKBA, it names everybody in sight as defendants (including Ashcroft, guaranteeing that DOJ can't do a friendly Amicus!).

4) The "behemoth suit" draws a really rotten judge...basically, a worst-case scenario.

5) NRA then files a motion before the "bad judge" asking that the cases be merged. Levy and company promptly freak out; first, they claim that Halbrook is trying to improperly hijack their case and "reconnect" with Levy and company despite their having parted ways with Halbrook over tactical disagreements - in effect, they claim that Halbrook has a conflict of interest going on stemming from his previous involvement. Second, Levy claims that he never intended to sue Ashcroft and that Ashcroft is an improper defendant. And third, Levy has no interest in all the weird equal protection and due process "side issues" raised by NRA/Halbrook.

Understand that a successful case merger would have put the new combined case before the BAD judge, not the good one Levy drew!

6) The "bad judge" turns out to be somewhat less bad than expected, and denies Halbrook's attempt at a merger.

7) Apparantly, in a last-ditch effort to finally kill the Levy case, NRA gets Orrin Hatch to propose a legislative end to the DC gun ban, making both the Levy and Halbrook cases moot.


So ask me again who's the "assailant" here?

My theory: this isn't Halbrook acting on his own. It can't be. It's somebody further up the chain in NRA HQ pulling strings. And no, I'm not prepared to make guesses as to who - whoever it is is scared of an RBKA ruling out of the USSC.

July 21, 2003, 07:21 PM
As usual, Jim nailed it right on the head!

The only thing I can add is that I really like the Levy case. I also really like the gun ban being overturned in DC. I really think that the best place for a "TRUE" second amendment case to come from would be under the complete gun ban of DC. This puts the true "right" unequivicably in question. I really would like to see that kind of case go all the way up as opposed to something like Silveria, Nordyke, or Emerson(yes I know cert was already denied).

Jim March
July 21, 2003, 07:36 PM
I agree that the case Levy built was (and remains) a killer platform from which to take the RKBA to the Supremes.

Nordyke isn't half bad though, because it's about something "not very scary" at all - gun shows. Esp. in California, where there's no private sales allowed except through FFLs with the full background check.

As to Silveira, while it IS about something "scary", on the bright side the plaintiffs are all 100% upstanding citizens (as opposed to Levy's example of a "random crack dealer") and the cert brief filed was...VERY good. Astonishingly good, really.

See, attacking in the 9th Circuit is the one thing everybody says is stupid. HOWEVER, there's a very interesting reason to go ahead and do so: of all the "anti-RKBA-precident" circuits, so far as I'm aware the 9th is the only one that cited *directly* to US vs. Cruikshank (1876) in the 1992 9th Circuit case of Fresno Rifle and Pistol Club v. Van De Camp. Which one, hasn't been overturned, two, was cited by the later 9th Circuit Hickman case and three, Fresno Rifle was cited in State AG Lockyer's briefing/position paper on the 2nd Amendment written just last year.

In contrast, the Morton Grove case doesn't cite to Cruikshank. It cites to Presser, an 1886 case that cites Cruikshank. In Morton Grove, the grabbers avoided citing to Cruikshank because they realized it was butt-ugly, probably the single most racist USSC decision in history.

But in California and the 9th Circuit, the grabbers didn't figure that out. They've therefore woven Cruikshank deep into the fabric of their arguments (that the 2nd Amendment doesn't apply to the states) and hence left a real monster of a vulnerability in there.

I told Gary Gorski over and over to exploit that opporunity and in the latest cert brief, he did.

July 21, 2003, 09:34 PM
That is a very good point that relying on a case that is just pure evil would be a hard thing to do. I also think that a way around both Presser and Cruikshank is the way that the 5th circuit did it in Emerson. They used the reasoning that the series of cases from the 50s and 60's that started the incorparation trend werent out yet. I think this is good bet for that issue.

As to your other points. I think that Nordyke might be the best bet over Silveria. The refusal of the 9th to have an En Banc hearing and the opinions that the other panel was wrong should be very persuasive when combined with Emerson. Neither case is really bad. You are very correct that the participants are at least all honest citizens. That is why I really didn't want the USSC to hear Emerson. I think it would be harder to get behind a person the press would show as a wife beater and crazy. I see that the cert petition was filed for Silveria on 7/3/03. Very interesting!

Jim March
July 21, 2003, 09:46 PM
Well first, Presser doesn't really say ANYTHING about the 2AM's applicability to the states. It just says "see Cruikshank".

So you don't "find a way around" Presser, you just divert the issue back to Cruikshank. And then you don't "find a way around" Cruikshank, you confront the damned thing head on and destroy it. Cruikshank was such an absolutely bad decision, it should NOT be treated as "binding precident" today and there's absolutely no excuse for the 9th Circuit and Bill Lockyer to do exactly that.

As to Nordyke: it's a decent guess the 9th will hear Nordyke En Banc. If they do, and they've got any brains at all, they'll realize that SOME sort of "individual right" is going to come out, but they'll have a chance to try and construct a very "weak individual right" before the issue gets to the USSC, possibly giving the USSC an excuse not to rule on Silveira because Nordyke was already settled in the 9th.

That'd be an interesting ruling...because ANY "individual right to arms" ruling in the 9th or USSC would probably spell the death-knell of the California (and perhaps Hawaii) discretionary CCW systems.

July 21, 2003, 10:46 PM

As to Emerson being a "wife beater", while Emerson is seemingly less than admirable, he was busted recently for "stalking" as well as driving w/o a license, see last issue of Gun Week, I though that this "wifebeater" business was at best, an unsubstantiated allegation. Is there something here that I've missed?

Jim March and Jeeper:

Correct me if I'm wrong or thick headed, but it seems that The Second Amendment, as with the rest of BOR is a admonition to government, federal as well as state, via the 14th Amendment regarding things it was not suposed to do, places it was not suppoosed to go. Yes, no or perhaps?

Jim March
July 22, 2003, 12:21 AM
Alan, regarding your last paragraph:

Yes, that's exactly what was supposed to have happened. But three major things complicated the situation.

* First, the USSC between 1872 and 1905ish completely gutted the 14th Amendment. In a whole series of cases, they either ignored it (as with Cruikshank) or just flat overturned it (Slaughterhouse, Plessy vs. Fergusen, Williams vs. Mississippi, MANY more).

* The 14th Amendment "Privileges And Immunities Clause" was among the key bits destroyed. It was intended to apply both the Bill Of Rights and the "traditional rights of free Englishmen" to the states, by borrowing from the language of the Dred Scott decision of 1856. See also:

During the 20th Century, the USSC clearly realized that the states had to be contrained from violating the BoR, and that the 14th Amendment was the key to this. But they used a weird way of getting there, via the due process clause. To this day, the P&I clause remains "damaged goods" and the entire subject of states honoring the BoR is "skewed".

* Finally, there's the Miller decision. The judge that penned it was a borderline lunatic and horrific racist. There is at least one year in which there's no picture of all the USSC justices, because this guy would have been lined up next to a Jew and he would not be so photographed :rolleyes:. His level of scholarship is known to be poor, his role in history is just disturbing, and the decision itself is a mess.


In short: this is easily the most screwed-up area of law in US legal history.

July 22, 2003, 01:03 AM
In short: this is easily the most screwed-up area of law in US legal history.

Oh? The commerce clause cases are a bigger mess in my opinion. The feds couldn't even reach the states on guns were it not for the line of cases that culminated in the New Deal commerce clause decisions that took most of last century to even begin chipping away at. These decisions gave rise to the hyper-regulatory federal superstate we all so love today. Our guns are ensnared in the commerce clause net nearly as badly as they are by non-decisions on the 2A, and may even be ensnared still if we ever get a favorable incorporation 2A decision from the SCOTUS.

CATO is worried about nothing IMO. There is not much of a chance that Hatch's bill will escape the Senate, let alone be signed by Bush coming into an election.

July 22, 2003, 08:52 AM
Pro-Gun Groups Split on Tactics
Cato Institute, NRA Quarrel Over Challenges to D.C. Law

By Arthur Santana
Washington Post Staff Writer
Monday, July 21, 2003; Page B05

Months before Sen. Orrin G. Hatch (R-Utah) introduced legislation to repeal the District's 27-year-old handgun ban, two gun rights groups were trying to get the law struck down in U.S. District Court.

But instead of working together, the Cato Institute and the National Rifle Association have filed separate lawsuits against the gun ban and have disagreed with each other's legal tactics.

Last week's proposal by Hatch, chairman of the Senate Judiciary Committee, has once again put them at odds, with the Cato Institute accusing the senator and NRA officials of conspiring to spoil its lawsuit.

In February, Bob Levy, senior fellow in constitutional studies at the Cato Institute, a D.C.-based libertarian think tank, filed a lawsuit on behalf of six D.C. residents, challenging the city's handgun ban on grounds that it violated their Second Amendment rights. It is now pending before U.S. District Judge Emmet G. Sullivan.

A month later, attorney Stephen Halbrook followed with a suit on behalf of the National Rifle Association, representing five other D.C. residents. In addition to the right to bear arms, the NRA suit claimed, among other things, that the D.C. law violates the due process and equal protection clauses of the Constitution. That case is pending before U.S. District Judge Reggie Walton.

Levy was not happy with Halbrook, who had worked as a researcher for the Cato fellow, for filing a competing suit. Then, on Tuesday, Hatch introduced the D.C. Personal Protection Act, which would repeal the District's ban on handguns, end strict registration requirements for ammunition and other firearms and lift prohibitions on the possession or carrying of weapons at homes and workplaces.

The Cato Institute issued a press release accusing the NRA of conspiring with Hatch to undermine Levy's suit. Although it said Cato was "not itself involved in the litigation," it supports its scholars' defense of the Second Amendment.

"From the start, the NRA has tried to stop our suit from going forward," said Levy. "Essentially, the NRA is saying, 'If we can't control the litigation, there won't be any litigation.' "

Halbrook dismissed that argument.

"I really can't agree with that," Halbrook said. "The . . . bill is a legislative remedy, and if they could solve the problem legislatively, then that's the way to go.

"But the bottom line is to make it where law-abiding citizens can have guns to protect themselves, and we're for the quickest way to do that."

Last year, the local courts rejected arguments by dozens of D.C. criminal defendants -- bolstered by statements by U.S. Attorney General John D. Ashcroft that gun bans violate the Second Amendment -- that their gun possession charges should be dismissed. Ashcroft's pronouncements were prompted by an opinion by the 5th U.S. Circuit Court of Appeals, which Levy said also prompted him to file his lawsuit.

But Levy said he was surprised when the NRA filed its suit and Halbrook asked the court to consolidate the suits. Levy objected, and Judge Sullivan denied the motion two weeks ago. The two lawyers were familiar with each other; Levy had earlier hired Halbrook to conduct pretrial research for him. But they disagreed on trial strategies, and when Halbrook took the NRA's case, Levy called Halbrook's actions "unethical" and sought to have him recuse himself.

"It saddens me," Halbrook said. "I regret they said those things and felt that way."

Adding to the disharmony, Halbrook named Ashcroft as a defendant in the NRA lawsuit, seeking to challenge what the organization sees as his inconsistency in refusing to argue that the D.C. law is unconstitutional.

"We would find it interesting if the AG would take a position on the merits," Halbrook said. "Because it would seem to be an inconsistency to say that a person has a right to keep and bear arms, but not in D.C."

D.C. Mayor Anthony A. Williams (D) is also named as a defendant, Halbrook said. Department of Justice and city attorneys filed motions to dismiss last month.

Andrew Arulanandam, spokesman for the Fairfax-based National Rifle Association, called Levy's allegation "misguided."

Meanwhile, one gun control group said the infighting among gun rights groups is unusual.

"The Second Amendment has proven to be a double-edged sword for the NRA," said Matt Nosanchuk, litigation director for the Violence Policy Center, a gun-control group. "You have Ashcroft defending the D.C. gun ban. You have the Cato Institute attacking the NRA. You have NRA suing Ashcroft."

Meanwhile, one of the NRA plaintiffs, Absalom Jordan, 62, of Southeast Washington, said he opposed the D.C. gun ban when it was being considered and continues to be an opponent of it.

"I believe I have a right to protect myself," said Jordan, who is retired. "I was the victim of an attempted robbery about five years ago in my apartment. They pulled a gun on me, and if I had a gun, I would have defended myself. I live in a community where there are serious crime and drug problems."

As for Hatch's legislation, Jordan said, "I'm so happy that someone is willing to stand up and defend the rights for the citizens of the District of Columbia."

July 22, 2003, 09:38 AM
It's interesting that the Washington Post picked this up (with help from VPC). I wonder if other newspapers, TV will if only to relish the apparent discord between the pro gun forces.

Anyway, it does appear that the only reason NRA has for doing what they have done is to serve their own purposes- not to protect my RKBA. As I see it they don't want a 2nd Amendment case to go to the SCOTUS regardless of what the outcome is- because whether the Stupremes find for or against an individual right the NRA's funding would be negatively impacted. Why send them money if SCOTUS says we have no right? Why send them money if we do?

If this is the case then my NRA membership is going to lapse- it would be nice if they would directly address this and explain their rationale.

July 22, 2003, 09:56 AM

The NRA won't, because the NRA's primary goal has become to promote themselves, not the rights of gun owners, and to raise as much money as they can. I don't see how anyone can think of the NRA as an actual promoter of gun rights when it fights gun owners as much as or more than it helps them (by this idiotic stunt, and by the numerous times it's supported more anti-gun legislation, fought against concealed carry laws, etc.). The NRA's become just like most of our political institutions in their attitude of "give us your money and your support, while we continue to work against you". Good to hear that you're not falling for it anymore either.

Shooter 2.5
July 22, 2003, 09:59 AM
Orrin Hatch is not a member of the NRA that I know of. He's with the Cititizen's Committee For The Right To Keep And Bear Arms.

So you have someone from The Citizen's Committee and the NRA trying to stop the Supreme Court from ruling on Second Amendment principles.

It sounds like the Committe and the NRA took a poll of the current U.S. Supreme Court Justices and realized if a Second Amendment case goes before this court we're going to lose.

From the press release, the Cato Institute isn't part of this lawsuit. It's from a member of their organization. Fron the press release, even they aren't backing the lawsuit.

Why is a ruling so important now instead of waiting until we can get at least one more conservative on the court?

Nathaniel Firethorn
July 22, 2003, 10:24 AM
Why is a ruling so important now instead of waiting until we can get at least one more conservative on the court?Because we might not get one before it's too late to do any good.

BTW, Jim, thanks for the details.

- pdmoderator

Shooter 2.5
July 22, 2003, 03:05 PM
According to whose timetable?


clintoon confirmed the last two Supreme Court Justices?

Are you that eager to lose 5-4?

Jim March
July 22, 2003, 03:36 PM

Orrin Hatch is not a member of the NRA that I know of. He's with the Cititizen's Committee For The Right To Keep And Bear Arms.


Uhh...I don't think so! I mean, a brief connection of some sort is inevitable as they're on the same side, but certainly not any kind of "management interest" on Hatch's part in CCRKBA.

Further, I know for a fact CCRKBA isn't impressed by the attempted takeover via merger of the Levy case.

Now, does CCRKBA and company support Hatch's attempt to end the DC gun ban? I don't know. They possibly do, on reasoning the same as mine: while hurting the Levy case would be bad, the benefits to ending the ban, including immediately dropping the violent crime rates in DC and providing a killer "test case", are so enormous that it's worth doing regardless. Sorry, Mr. Levy. CCRKBA didn't prod Hatch into this.

See, that's the crazy part here: sorting out all the motivations is impossible. Hatch himself probably isn't trying to "torpedo the Levy case". But he wasn't prodded into filing this bill by CCRKBA, it was indeed NRA. And the timing a minimum, peculiar. The actions in the filing of the 2nd suit and attempted merger are beyond "peculiar", we're way into "disgusting" there.

Shooter 2.5
July 22, 2003, 09:15 PM
I read an article that stated he was on the "Advisory Board" of CCRKBA. Maybe someone who's a member can fill me in.

It's interesting that others have already said that he was prodded into the bill by the NRA. Is that what Hatch or the NRA said?

Shooter 2.5
July 22, 2003, 09:49 PM
A portion of a fund raising letter from the Citizen's Committee For The Right To Keep and Bear Arms:

"Will you join with me and U. S. Senators Bob Dole, Orrin Hatch, Trent Lott, Don Nickles and other distinguished Americans as a member of the National Advisory Council of the Citizens Committee for the Right to Keep and Bear Arms? "

July 22, 2003, 11:00 PM
Cruikshank was such an absolutely bad decision Cruikshank is a great decision. It's binding today precedent today because it IS such a good decision.

What's wrong with it?

Jim March
July 22, 2003, 11:59 PM
Graystar: you're joking, right? Or you've got your cases mixed up?

Cruikshank was the 1876 USSC decision saying that there was nothing the Feds could do about state-sponsored civil rights violations, including violations fo the 1st Amendment (freedom of association), 2nd Amendment and 15th Amendment (voting).

But that doesn't even begin to describe what happened here.

Blacks in Louisiana tried to vote under the then-new 15th Amendment. Local cops combined with the Klan to launch three days of riot, arson and murder. The first thing the cops did was to disarm the blacks - the murders, assaults and rapes began immediately. On day three, the rioters burned the courthouse and Federal troops finally restored order and arrested the ringleaders including Cruikshank.

They were prosecuted on charges of committing civil rights violations under Federal law.

The USSC said that the Feds couldn't do anything about ANY of these state-sponsored civil right violations.

Civil rights abuses by states ran unchecked until the 1960s. Cruikshank was the single biggest of the "pro-KKK" decisions of that period.


Today, if the state of, say, California tried to prevent all members of a given minority from voting, or sponsored criminal attacks on people with no lawful reason, Federal troops/police would be sent in by the swarm. With good reason. But while most of Cruikshank is now considered toast, it's still being relied on for the proposition that states can disarm their citizenry, apparantly even if the purpose for doing is distinctly criminal in nature?!.

Oh no. HELL no. If this last remnant of Cruikshank upheld by the USSC, it would be solid grounds for immediate civil war.

July 23, 2003, 01:23 AM
Cruikshank was the 1876 USSC decision saying that there was nothing the Feds could do about state-sponsored civil rights violations, including violations fo the 1st Amendment (freedom of association), 2nd Amendment and 15th Amendment (voting). "State sponsored" is not the same as "the state." The charges were brought against the men, not the state of Louisiana.

Cruikshank correctly clarified the relationship between the federal government and state government. When one person violates the rights of another person, that is the domain of the state. When a state violates the rights of a person, that is the domain of the federal government. In Cruikshank, the federal government was asked to do something that it did not have the power to do. That is why the court discharged the defendants.

If, after a trial at the state level, the victims felt that the state was a party to their rights being violated then it would be appropriate to take the issue to the Supreme Court. But that never happened. You can't try a state issue in a federal court. The trial has to happen at the state level first. That is what state sovereignty is all about. You just can't throw state sovereignty out the window when it becomes inconvenient.

The 14th Amendment "Privileges And Immunities Clause" was among the key bits destroyed. It was intended to apply both the Bill Of Rights and the "traditional rights of free Englishmen" to the states, by borrowing from the language of the Dred Scott decision of 1856. The 14th Amendment does not apply to the Bill of Rights. Those rights are not privilege. Nor are they immunities. A bill of rights is not law. it merely states what already is. The US Constitution cannot confer upon us what we already had. Nor does it need to. As Cruikshank stated, the protection of our rights was always in the domain of the states. The states are already under obligation to protect our rights. It is when they fail to do so that the federal government steps in.

Jim March
July 23, 2003, 02:42 AM
Graystar, you don't know know what you're talking about re: the 14th, and the idea that states can violate people's civil rights without Federal oversight is simply disgusting and has no place in modern law. Thank God.

Your view would allow the institutionalized state racism of 1872 - 1963 to continue unchecked. Thank GOD you're dead wrong.

Now, let's talk about the 14th Amendment P&I clause:

The Dred Scott case (1856) specifically limited black civil rights in all aspects. It wasn't just a pro-slavery decision; it stated that the US had always been a racist society from Colonial times, incorporated numerous racist laws right around and through the time of the founding of the current Constitution (citing disgusting examples from the 1790s) and hence racism would be forever allowed in the US.

The decision was so broad in scope that the "racism is OK" parts survived slavery itself. During the period 1865 - 1868, the Southern states rapidly passed the infamous "black codes" to preserve racism in a post-slavery South. They were supported in this by Dred Scott.

Here's a key piece of the Dred Scott decision:

For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them [ed: blacks] from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.

Note that the Dred Scott case uses the term "privileges and immunities" (of United States Citizenship, as explained elsewhere in the case) 33 times, and exhaustively defines it. In the paragraph above, it's clear that the P&I includes the entire BoR, including the 2nd Amendment, plus stuff that can best be described as "the traditional rights of free Englishmen" such as the right to travel without passport.

Now here's the opening paragraph of the 14th of 1868:

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.

John Bingham, the 14A's primary author, was dead clear about what he was up to: he was using the language of Dred Scott ("privileges and immunities of US citizenship") to specifically overturn the Dred Scott decision. Only a constitutional amendment CAN overturn a USSC decision legislatively.

So that's exactly what they did.

The problem is, the USSC didn't *like* being overturned, so they pretended not to know what their own language in Dred Scott meant. In Cruikshank, they flat ignored the 14th altogether(!) and in Slaughterhouse, Presser, Plessy vs. Fergusen and a pile of others they deliberately gutted it.

Well Graystar, I don't want to live in a racist society. I don't want to live in a society where states are allowed to be tyrannies. I believe the 14th Amendment was THE most significant improvement over the original Constitution/BoR ever created, I support it, and I think it's finally time that it be restored to it's original form.

Silveira will be a good opportunity, because it finally tells the truth about Cruikshank.

July 23, 2003, 08:05 AM
fyi here's the POST reporting on the fight between NRA and CATO

and i also think it pertinent to think about the implications in the article i linked in this thread here:

July 23, 2003, 11:23 AM
and the idea that states can violate people's civil rights without Federal oversight is simply disgusting and has no place in modern law. "The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the States; and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. " U S v. CRUIKSHANK, 92 U.S. 542 (1875)

This does NOT sound like the federal government is turning a blind eye to rights violations. They were simply enforcing the hierarchy that exist. The defendants should have been tried in a state court first. THEN, the matter can rise to the federal level.

From the Scott decision:

"Consequently, the special rights and immunities guarantied to citizens do not apply to them"

"Since the adoption of the Constitution of the United States, no State can by any subsequent law make a foreigner or any other description of persons citizens of the United States, nor entitle them to the rights and privileges secured to citizens by that instrument. "

Here are two instances where rights were specifically separated from privileges and immunities. Obviously, one can find language to support whatever position they desire. The fact is that the Scott decision was based on the concept of holding the Founding Fathers intent above all, including the rights of individuals. We don't do that anymore. Not because of the 14th, but because we realized that the founding fathers were men, not gods. Reason is our guide now, not the intent of the founding fathers.

The concept of the federal government being directly responsible for the protection of our rights would create a national police force. This was not the intention of the 14th amendment.

Jim March
July 23, 2003, 02:34 PM

The USSC in Cruikshank wasn't saying that the defendants should have gone to state court first. They were saying they could NEVER be dragged into a Federal court. If there was a "state court first" requirement, then the state of Louisiana could deliberately fail to so prosecute them, and hence leave the murderers free forever.

Which is exactly what happened. Study the entire history of Southern lynchings. Murder became a state supported activity after the Cruikshank decision.

There are "2805 [documented] victims of lynch mobs killed between 1882 and 1930 in ten southern states. Although mobs murdered almost 300 white men and women, the vast majority (almost 2,500) of lynch victims were African-American. Of these black victims, 94 percent died in the hands of white lynch mobs. The scale of this carnage means that, on the average, a black man, woman, or child was murdered nearly once a week, every week, between 1882 and 1930 by a hate-driven white mob" (ix).


Cruikshank caused this. Do you still support Cruikshank?


Source: - click on pictures. That's one of over eighty. That particular one is dated and documented: "The lynching of Dick Robinson and a man named Thompson. October 6, 1906, Pritchard Station, Alabama."


Cruikshank caused this. Do you still support Cruikshank?

During six weeks of the months of March and April just past, twelve colored men were lynched in Georgia, the reign of outlawry culminating in the torture and hanging of the colored preacher, Elijah Strickland, and the burning alive of Samuel Wilkes, alias Hose, Sunday, April 23, 1899.

The real purpose of these savage demonstrations is to teach the Negro that in the South he has no rights that the law will enforce. Samuel Hose was burned to teach the Negroes that no matter what a white man does to them, they must not resist. Hose, a servant, had killed Cranford, his employer. An example must be made. Ordinary punishment was deemed inadequate. This Negro must be burned alive. To make the burning a certainty the charge of outrage was invented, and added to the charge of murder. The daily press offered reward for the capture of Hose and then openly incited the people to burn him as soon as caught. The mob carried out the plan in every savage detail.

Of the twelve men lynched during that reign of unspeakable barbarism, only one was even charged with an assault upon a woman. Yet Southern apologists justify their savagery on the ground that Negroes are lynched only because of their crimes against women.

The Southern press champions burning men alive, and says, "Consider the facts." The colored people join issue and also say,, "Consider the fact." The colored people of Chicago employed a detective to go to Georgia, and his report in this pamphlet gives the facts. We give here the details of the lynching as they were reported in the Southern papers, then follows the report of the true facts as to the cause of the lynchings, as learned by the investigation. We submit all to the sober judgment of the Nation, confident that, in this cause, as well as all others, "Truth is mighty and will prevail."

2939 Princeton Avenue, Chicago, June 20, 1899.


Cruikshank caused this. Do you still support Cruikshank?

I could go on like this for days. Hit google and do a search on the terms:

black history lynchings

Look, do you even understand that the state of Louisiana *approved* of the actions of Cruikshank and the other rioters? Do you realize that the Southern states fought black civil rights and black voting at every turn?

Quoting Graystar:

The concept of the federal government being directly responsible for the protection of our rights would create a national police force. This was not the intention of the 14th amendment.

The hell it wasn't! The North had just finished sending in HOW many million *troops* to the South? Jesus, they burned Atlanta to the ground. You think John Bingham would have balked over sending some cops down there?

Are you familiar with the Freedmen's Bureau act? In 1866, it created a team of Federal cops with police powers to protect black civil rights and safety in the south! That was the first "national police force", two years BEFORE the 14th.

Again, your ignorance of these times is just breathtaking.

Your two cites to Dred Scott only further illustrate how that court used terms like "special rights and immunities" and "privileges and immunities" and plain old "rights" interchangably. What matters is that all of these rights are what are protected for you as a US citizen. Read the chunk I quoted again, and the meaning of the term "privileges and immunities" is specifically defined to include the RKBA, a right to travel, right to free speech, right NOT to have special laws passed to strictly control you by race, etc.

You are ignoring obvious evidence of "language shift" regarding the phrase "privileges and immunities".

July 23, 2003, 04:26 PM
The USSC in Cruikshank wasn't saying that the defendants should have gone to state court first. Yes they did, when they made it clear that this was a state issue, not a federal issue.
Do you still support Cruikshank? Absolutely. Cruikshank didn't cause that image. The men standing there in the picture did. You're blaming the court for the actions of others. Are you taking lessons from the antis???

I will not abandon principles because of some emotional reactions to pictures. If the state was responsible for what happened then the victims should have taken the state to federal court. If the state was unwilling to prosecute those responsible, then again, the victims should have taken the state to federal court. That is the way it works. That is still the way it works.

Jim March
July 23, 2003, 07:57 PM
The USSC *did* cause all of that and more, in the Cruikshank case. The states wouldn't halt the killings, and the first time the Feds tried to, the USSC shut that down.

The peak decade for the lynchings was the 1880s. Cruikshank was decided in 1876. Coincidence?

Fortunately, every aspect of Cruikshank has been junked, so if a state tried to open up new "killing fields", the Feds would stomp the crap out of 'em. However, the one element of Cruikshank still "alive" is the bit about states disarming anybody they want, pretty much at random, for any reason they want.

And you *support* that?

I can't figure you out. You live in a state that violates civil rights (arms and more) at a rate far greater than the Feds. So do I. But you want to make sure states like New York and California can trample your rights unopposed.

Anyways. You're wrong, and thank God the legal scholarship is going 100% the other way, the latest example being Akhil Reed Amar's 1998 book "A Bill Of Rights" and the legal journal articles that preceeded it on the subject of the 14th Amendment. He's one of a large group of very respected legal scholars, including Stephen Halbrook and Clayton Cramer, who are all saying the same thing about what the 14th Amendment is supposed to do.

July 23, 2003, 10:39 PM
Jim March:

What appears to be your legal scholorship goes far beyond me. While I too read some, not as much as I used to, reading legal material usually puts me to sleep.

In any event, re the 14th amendment, in general, it was my understanding that essentially it applied to the then, newly freed, former slaves, who were then citizens, perviously they hadn't been.

In the Southern States, "freed blacks", sometimes known, if memory serves as "14th amendment citizens" were being denied the rights of "other" citizens, essentially via state actions. It seemed that the 14th was supposed to correct this situation, meaning that it would enforce or make applicable to the states, rights guaranteed by The Constitution.

Do I have that right? As to earlier comment, to the effect that the 14th had been walked all over, you know more about that than I do.

Jim March
July 24, 2003, 02:40 AM

That's exactly right, except the effects were NOT supposed to be limited to blacks. Union sympathizers in the South were being discriminated against.

Let's look at the first paragraph of the 14th:

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.

First, it's completely race-neutral. There's a reason for that: in addition to passing "black codes", most Southern states were passing laws specifically discriminating against anybody who hasn't been in that state a good while, effectively screwing visiting Northerners. And without actual legislation, southern cops and courts were screwing over anybody known as pro-Union.

And the LAST paragraph...well check it out, it's just one sentence:

Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

And "Graystar" (is that a reference to Confederate gray?) wants us to believe the framers of the 14th didn't expect the FedGov to do anything about abuses of civil rights.


Jim March
July 24, 2003, 03:51 AM
Alan, Graystar and others: is pretty much THE premier online legal research/resource page on US law out there. It has no "ideological slant", it's used by lawyers of all sorts and political persuations, and represents the mainstream of current American thought.

Here's their page on the 14A:

They start out with the full text of the amendment, and then provide links to information and scholarship on each bit below.

As you'll see, there's a ton of links on the various implications of the Due Process, Equal Protection and other clauses...but there's just ONE on the "privileges and immunities clause" of the 14A's opening paragraph.

I strongly recommend y'all read that page on the P&I:

As you'll see, the US Supreme Court in the 1873 Slaughterhouse cases simply decided that a piece of the Constitution simply should not be (the P&I clause) and simply wrote it out of the constitution where it's been largely crippled ever since.

Basically, it was an unfortunate twist of history that the first time the P&I clause came up at the USSC in Slaughterhouse, it was a "free trade issue" having nothing whatsoever to do with race. So they had an excuse to junk the P&I (still treason, but they did it). BUT the sort of state law the framers of the 14th were really worried about were *racist* laws (and actions) and all of those (especially state laws and actions related to black disarmament) damned well should have been reviewed and stomped on by the court.

Instead, the USSC basically spent the whole time between 1872 and 1905 saying "racist laws? What racist laws? Besides, they're only ******s!" :scrutiny:

You think I'm kidding? I'm damned well not! Check THIS freakshow of a case out: - by 1898, a discretionary VOTING permit law had barred 180,000 blacks and about 5 whites from voting in Mississippi. According to the USSC, this was just fine and dandy :eek:.

Now, if they had ONLY gutted the P&I clause of the 14th, it would be perhaps tolerable. But they didn't stop there. They gutted the due process and equal protection clauses of the 14th in other decisions between 1873 and 1905ish, all for racist reasons. Hell, even that wasn't the end of it - they obliterated the 15th Amendment too (voting rights for blacks, see the Williams 1898 case cited above). All of those have been put back together again (more or less, there's still problems with equal protection!) but the P&I remains "severely damaged goods".

What we got instead of the P&I clause is "selective incorporation of the BoR via the 14A due process clause". What that means is, throughout the 20th Century, the USSC has heard cases in which states have violated civil rights. As the USSC has agreed to hear such cases, they have "approved of" individual rights to apply to the states, saying that allowing a state to violate, say, right to free speech and assembly, would deprive people of due process under law.

(Free speech and assembly were I believe the first two rights found "basic and important enough" to be so incorporated against the states.)

Well...that's true, if a state arrests you for free speech, it DOES screw with your due process rights.

But this weird bent game meant the court could hand-pick which civil rights it likes at any given time. So far, they have not so blessed the 2nd Amendment, and the right to a grand jury for major crime indictment. Oh, and the THIRD amendment but since keeping troops in people's guest bedrooms isn't popular...:rolleyes:.

The USSC literally launched a coup against us...they disgarded a piece of the Constitution, and they weren't subtle about it.

July 24, 2003, 12:21 PM
Jim March:

I'm familiar, to some extent, with findlaw, and have looked at a couple of things therein, for instance Hanyes v. U.S., re gun resigtration.

Otherwise, with reference to USSC and history, I'm given to remember, possibly a poor application, the following.

A tourist from Iowa, something of an arch. buff is seen, standing on the corner of a broad blv'd. in D.C., looking somewhat lost/confused. A D.C. cop notices a citizen, seemingly in distress of some sort, and offers aid. He asks if the tourist is having a problem. Our tourist answers no, but indicates that he is corious about something. The police officer asks curious as to what. The tourist indicates his desire to know which side of the street the State Dept. Building is on, though what he actually says is as follows. "Which side is The State Dept. on"?. The police officer tips his uniform cap back on his head, looks thoughtful for a moment, and replies, "they are on our side, I think". Might this apply to at least some of the desicions that have come out of USSC?

July 24, 2003, 02:17 PM

I've used findlaw for years and have already read the link you provided, thanks.

Cruikshank states:
The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. Yet all the antis love to quote only part of it:

The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Cruikshank is not a bad decision. However, when you take it out of context it can appear to be bad. What you are referring to is the abuse of a Supreme Court decision. The decision itself does not support any of the things you claim it does.

We read Miller and see that it support an individual right. Gun control advocates read it and see that it supports only a state right (something which doesn't even exist.) It's the same thing.

Jim March
July 24, 2003, 08:06 PM
Graystar: you're wrong. The Cruikshank decision said that civil rights violations committed by state agents could not be stopped by the Feds.

Got that? All the fancy talk is fine, but where the rubber hits the road, mass slaughter led by state government officials could not be punished.

The slaughter continued for almost a hundred years.

You cannot POSSIBLY be in favor of that.

July 24, 2003, 10:51 PM
The slaughter continued for almost a hundred years.
You cannot POSSIBLY be in favor of that. No, I'm not in favor of the slaughter of innocent people. However, that is no reason to fault the Supreme Court when it was the lawyers for the victims that screwed up.

The lawyers for the victims screwed up in three ways.

1. They made their charges against the men that committed the crimes, instead of the State for allowing the crimes.

2. In their charges, they didn't specify the acts committed.

3. In their charges, they didn't specify the rights or privileges that were violated.

So they were going to lose the appeal even if the Supreme Court did decided that the United States can prosecute the individuals.

So don't blame the Supreme Court for the actions of bad lawyers. The Supreme Court can only work with what they are given. The victims' lawyers gave the Court a crappy case, and a crappy decision is what they got in return.

Jim March
July 25, 2003, 01:45 AM
The lawyers were *Federal* attorneys, not "lawyers for the victims".

They accused Cruikshank and company of very specific crimes:

* Depriving the victims of their 2nd Amendment rights (for the specific purpose of follow-up assaults).

* Depriving the victims of their 1st Amendment rights to peaceful assembly (by assaulting them as they stood outside of the courthouse to vote).

* Depriving the victims of their 15th Amendment right to vote (via the same assaults).

They were also charged with conspiracy on all of the above actions. Which granted, is slightly questionable as "extra charges" but...the core three charges above were rock solid.


Now let's turn it around. HOW SHOULD THE COLFAX ATTACKS HAVE BEEN PROSECUTED? What were the alternatives?

I can see absolutely none, other than what the Feds tried. What actually happened was, once the Cruikshank case failed at the USSC, the Feds gave up trying to control racial murders in the south.

So what's your solution?

July 25, 2003, 08:02 AM
They accused Cruikshank and company of very specific crimes: If you read Cruikshank carefully (and the dissent) you would know what is wrong with those accusations.

Jim March
July 25, 2003, 08:46 AM
I've read them very carefully. I've also read many other decisions of that period that supported racism in various forms, esp. Williams (1898).

Taken alone, reading Cruikshank shows what sure as hell looks like racism. Reading it as part of a pattern of rotten decisions during that era proves it was racist.

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