Wednesday, June 30, 2010

Why the 14th Amendment and the McDonald Ruling Matter

"It depends on what the meaning of the word "is" is."
William Jefferson Clinton, 1998 testimony to the Grand Jury on the question of his relationship to Monica Lewinsky prior to his impeachment

It should not be lost on any of us that the recent Supreme Court decision in McDonald v. Chicago was more than a referendum on our right to bear arms, it was confirmation of the critical importance of the Fourteenth Amendment to the protection of our individual rights. In particular, the Privileges or Immunities Clause and the Due Process Clause.

In short the court held that the Fourteenth Amendment protects our right to bear arms against the State legislation to the contrary. Why is this important?

Consider that the opposing argument--the one that FOUR justices voted to support--argues that the Bill of Rights applies only to our national rights. That is that the Bill of Rights protects Americans against the Federal government usurping the rights protected under the B of R but not against the States. If this were true then the state in which we live could impose laws that deprive of us the rights enumerated in the B of R. Previous court rulings have safeguarded some of the rights against the states, but not all. And it was under the Due Process Clause in the Fourteenth Amendment that the court recently ruled affirmatively for McDonald--that is, against local and state bans of firearms.

More important than the verbal gymnastics the opponents engaged in and FOUR Supreme Court Justices supported in dissenting the Court's opinion is the very clear intention of the original sponsors of the Amendment in 1866 when it was introduced. From the Court's June 28, 2010 Opinion, footnote 9:

Senator Jacob Howard, who spoke on behalf of the Joint Committee of Reconstruction and sponsored the Amendment in the Senate, stated that the Amendment protected all of "the personal rights guarantied and secured by the first eight amendments of the Constitution" (14).

This understanding of the Fourteenth Amendment was widely understood at the time, published extensively and "not a single senator or representative disputed (the incorporationist) understanding" of the Fourteen Amendment during debates. How then could FOUR justices voted against McDonald?

Words matter. The meaning of words matter. If not then nothing matters. Without the veracity of Constitution, the Bill of Rights, the Federalist Papers to guide our understanding, we are at the mercy of the very same arbitrary and capricious actions of the ruling class the Founders rejected when they declared independence from the King of England. Bill Clinton sat before a Grand Jury and dissected the meaning of the word "is." He did this with a straight face. He was impeached by the House of Representatives and disbarred. Yet he is still an influential leader of the Democrat party. If truth doesn't matter. Liberty is just a slippery slide away from extinction.

1 comment:

  1. Indeed. The interesting thing with McDonald is that the liberal justices, who usually approve incorporation, opposed it in this case, and that the conservative justices, who oft try to draw the line on what the 14th amendment incorporates, supported it in this case. Regardless, all Americans should be very grateful to the radical Republicans who framed the 14th amendment after the Civil war, to the justices of the 20th century who gradually incorporated most of the Bill of Rights, and were damned as "activist" judges for doing so, and to organizations like the ACLU which pushed through those cases. It wasn't until the Gitlow case that 1st amendment protection of speech was incorporated.