Interesting take on Heller from Originalist Dr. Gutzman

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Although it is perhaps naive to think that any court or government entity would recognize it in today's atmosphere, it would be well for us to remember that the basic human rights recognized in the Bill of Rights are not conveyed to the people by this government or any other but by their maker or natural law, as you choose, and predate the Constitution. In a larger sense the question of whether or not the DC is operating as a de facto state by some circuitous legalese construct should be irrelevant. If one is prepared to concede that these rights are granted by any govenment, then surely he must recogize that they can be denied by any number of means by that same government without recourse.
The question of law that ought to be before the court is just that, but it is not. Any good that might come from this process will therefore continue to be attacked by the same means as always ad nauseum, and we will continue to twist in the wind of politically driven advocacy by those who fear the free man and intend to turn us into subjects, not citizens.
 
The original intent of the 14th A was strictly for newly freed black slaves.

Ohhhh boy.

Bingham would have disagreed, and did so very publicly. The South immediately post-war was also passing laws discriminating against incoming Northerners.

Or take for example that 1858 South Carolina statute I mentioned (killing preachers who were anti-slavery). That law was cited by Bingham as one of the abuses allowed under the Barron decision and applied to both white and black preachers - along with tons of other Southern statutes designed to restrict freedom of speech pre-war.

As to Slaughterhouse:

The 14th Amendment was designed to overturn TWO major Supreme Court decisions: Barron and Dred Scott (1856). Scott said that the US had always been a racist society (including the colonial period) and that hence racism was OK. THAT aspect of the 14th was indeed aimed squarely at newly freed blacks.

The Dred Scott decision has this huge paragraph listing the civil rights blacks don't have, including "the right to armed, singly or in companies". The Scott decision called these rights "the privileges and immunities of US citizenship" and stressed that blacks don't have them.

In writing the opening chunk of the 14th, Bingham deliberately used the Scott decision's language and turned it on it's head:

* Everybody born in the US is a citizen (including blacks).

* "No state shall abridge the privileges or immunities of United States citizenship" (quoting from memory here).

Upshot: *Everybody* with US Citizenship has the right to "keep and bear arms, singly or in companies".

The US Supreme Court reacted VERY badly to the 14th Amendment. Between 1872 (the Slaughterhouse cases) and 1900 they systematically destroyed every element of it. Cruikshank and Presser were both part of that process - Cruikshank said that if a state violated their people's rights to freedom of assembly, RKBA and *voting* rights, the Feds couldn't do a damn thing about it.

Today, the only part of Cruikshank still taken seriously by *anybody* (read: the California AG's office, various courts, etc.) is the "right to disarm" portion - even though in Cruikshank, the disarmament was for the purpose of outright murder immediately after (over 100 - google "colefax massacre").

I still view Cruikshank as the single most racist US Supreme Court decision ever, and it led to thousands of lynchings for generations.

It has serious competition though: Plessy's infamous "separate but equal" ruling was part of this pattern of rulings, as was Williams (1898):

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/170/213.html

THAT ghastly mess involved the state of Mississippi taking the concept of discretionary gun permits and migrating it to discretionary VOTING permits. Hundreds of thousands of blacks were stripped from the voting rolls.

According to the US Supremes, this was perfectly fine - since a handful of whites of "poor moral character" had also been disenfranchised, the law was clearly "race neutral" and hence didn't violation the 14th.

No, I'm not kidding.

In other words, there's a huge body of truly disgusting case law from that period, the ONLY piece of which still taken seriously being the "gun grabbing allowed" section of Cruikshank which was repeated in Presser.

The postscript: in the 20th century the Supremes realized they'd gone too far. The way they back-tracked was by an invention called "selective incorporation". As state-level abuses against the BoR came before the court, the particular part of the BoR under discussion was "selectively incorporated" against the states as a "fundamental aspect of due process". The Privileges and Immunities Clause of the 14a is to this day resting on history's scrap-heap.

The remaining parts of the BoR not incorporated:

* The 2nd Amendment.

* The 3rd Amendment.

* The grand jury indictment requirement on a major crime in the 5th Amendment (yeah, they broke up incorporation by *piece* of amendment!). (A lack of powerful grand juries in states like California is having a side effect of promoting local corruption...)

What we REALLY need is a case where a state agent disarms somebody for the express purpose of violating their rights. That would let us re-open Cruikshank to scrutiny where it'll melt like a booger in a blast furnace. Come to think, we may HAVE that in New Orleans in the aftermath of Katrina...it appears obvious people were moved out in many cases as part of a "gentrification" plan...and were disarmed first to enhance the ability of crooked local officials to pull the scam off.

Hmmmmmmm.
 
So if we were to follow Dr. Gutzman's logic to its ultimate conclusion then, then only the federal government is restricted from infringing on my First Amendment right to free speech, but NOT the state where I live.

Yeah right?!?!???
 
So if we were to follow Dr. Gutzman's logic to its ultimate conclusion then, then only the federal government is restricted from infringing on my First Amendment right to free speech, but NOT the state where I live.

Exactly.

And in every issue EXCEPT guns, that's the sort of government the courts and the 14th Amendment have carved out: serious abuses of civil rights by states can be controlled by the Feds.

Except for those pesky guns.
 
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