From the Archives - Privileges, immunities, gun rights: Charlottesville lawyer Buddy Weber discusses the 14th Amendment

Privileges, immunities, gun rights: Charlottesville lawyer Buddy Weber discusses the 14th Amendment
August 6, 2010 12:49 PM MST

In a recent post on the group blog, The League of Ordinary Gentleman, the Cato Institute’s Jason Kuznicki discusses the history and understanding of the Fourteenth Amendment to the U.S. Constition.

Kuznicki, a historian and assistant editor of the Encyclopedia of Libertarianism, argues that “maybe we could make the Fourteenth Amendment apply to all people. Just one of those crazy ideas, you know, that I got from the text of the amendment itself.”

He further explains that “our constitution must absolutely be a set of general principles pointing at liberty, combined with a set of specific operating procedures for government. It needs to be a general grant of liberty, and a limited grant of power, because a limited grant of liberty very quickly begins to eat itself. General grants of liberty, however, must be expressed in general terms, and this necessarily leaves the working out of particulars to each subsequent generation.”

Fourteenth and Second Amendments
Kuznicki’s blog post fits in nicely with the argument made by Charlottesville attorney Charles “Buddy” Weber on WINA-AM’s The Schilling Show earlier this week, during a discussion of two recent Supreme Court decisions that addressed the right to keep and bear arms.

In an interview with the Charlottesville Libertarian Examiner on August 5, Weber summed up the two cases, District of Columbia v. Heller (2008) and McDonald v. Chicago (2010).

Buddy Weber

Heller, he said, held that a Washington resident had the individual right under the Second Amendment to possess firearms within his own home in a federal enclave, the District of Columbia. McDonald, he explained, had essentially the same facts but was applied against a state (Illinois).

In Heller, Weber explained, “the interesting thing about the case, although it came out 5-4, was that all of the justices used originalism as the basis for their argument. I know we’ve always heard about the debate among the justices between originalism vs. the ‘living constitution’ concept. Those in favor of the living constitution have always critiqued originalism as a basis for interpreting the constitution.”

What this shows, Weber continued, is “that reasonable people can disagree as to what the history really was, but it boiled down to the plain meaning of the language of the Second Amendment. When it says ‘the right of the people to keep and bear arms’ does ‘the people’ really mean the people, or does it mean ‘the government’?”

Weber was particularly impressed by the reasoning of Justice Clarence Thomas in his concurring opinion in McDonald.

Incorporation of the Bill of Rights
“The question is,” he said, “does the Fourteenth Amendment incorporate the entire body of the Bill of Rights and hold the states responsible for the content, the substance of those rights?”

That question is still relevant “because the Supreme Courts in the post-Civil War era just simply refused to acknowledge what was intended by the Fourteenth Amendment,” Weber explained. The court “issued a whole bunch of decisions that narrowed the meaning of it, specifically the Privileges and Immunities Clause, which came out of the Slaughterhouse Cases. They eviscerated that and [it] was dead-letter law for well over 100 years.”

Prior to the McDonald case, Weber said, “in order for the courts to backtrack and get some of those rights applied against the state, they’ve used the Due Process Clause.”

‘Absolute Clarity’
In McDonald, however, “Justice Thomas, in a moment of absolute clarity, has basically looked at that whole history and said, you know, this is all legal fiction. How can you possibly claim that a clause in the constitution that guarantees only a legal process guarantees any substantive rights whatsoever?”

Paraphrasing the Thomas opinion, Weber explained that “we need to go back and revisit that whole line of cases on the Privileges and Immunities Clause,” saying that “it ought to be held against the states because the Second Amendment guarantees the right to keep and bear arms as a privilege of citizenship in the United States and the Fourteenth Amendment specifically says no state shall abridge the Privileges and Immunities of citizens of the United States.”

‘Straightforward Reading’
Praising this “really straightforward reading of the words of the Constitution,” Weber exclaimed, “thank God, it’s about time! Maybe we’ll get back to that sort of legal interpretation in the future.”

Weber, who is also chairman of the Charlottesville Republican Committee, predicts that the remaining rights listed in the Constitution – to a grand jury indictment, to a jury trial in civil cases, against excessive fines, and against the quartering of soldiers during peacetime – will “all get incorporated in time. It’s a question of whether they get incorporated piecemeal” or whether, like Jason Kuznicki, “somebody just says ‘these are privileges and immunities of citizens of the United States and they all ought to be incorporated.’”

Publisher's note: This article was originally published on Examiner.com on August 6, 2010. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

How did Charlottesville untie its June 11 primary election?

(This article appeared originally on Virginia Politics on Demand on June 17, 2013.)

While last [June]'s primary elections were ho-hum throughout most of the Commonwealth of Virginia -- only 144,435 voters cast ballots in the Democratic contest for lieutenant governor, or 2.6 percent of possible registered voters -- the situation was different in Charlottesville, which had the most crowded ballot among Virginia's 134 counties and cities.

While a handful of localities had primary contests for the House of Delegates, Charlottesville was the only city with several local offices on the ballot. In addition to the top-of-the-ticket choices for lieutenant governor and attorney general, Charlottesville's Democratic voters also chose among candidates for commonwealth's attorney, commissioner of the revenue, and city council. (There were no Republican candidates on the ballot. The local GOP nominated two candidates for City Council, Mike Farruggio and Buddy Weber, in a late-April mass meeting.)

Charlottesville City Council candidate Wes Bellamy speaks to news media after his defeat

 Incumbent Commonwealth's Attorney Dave Chapman beat former Commonwealth's Attorney Steve Deaton in a landslide. (Chapman was first elected in 1993, when he defeated Deaton narrowly in a Democratic caucus. He has never faced a general-election opponent.)

Newcomer Todd Divers more narrowly defeated fellow newcomer Jonathan Stevens for the party nod for Commissioner of the Revenue. (They were both seeking to succeed retiring Lee Richards, another incumbent Democrat who never had a general election opponent.)

Chapman will again be unopposed in November but Divers will have two independent candidates running against him, Taneia Dowell and John Gunter.

The real fireworks came in the City Council race, which was not decided until Friday afternoon because of an exact tie between two candidates on election night.

There were five candidates seeking two nominations by the Democratic party. One was incumbent Kristin Szakos, who took first place handily.

When the results for Charlottesville's nine physical precincts were tabulated, it looked like the second-place finisher would be Bob Fenwick, who had 1,025 votes while third place was held by Wes Bellamy, with 1,006 votes.

City Council candidate Bob Fenwick speaks to news media after his narrow win was announced

All that was left to tally were the 201 ballots cast in the Central Absentee Precinct. Of those, 178 voters had cast their ballots in person on the eSlate electronic system and 24 paper ballots had been returned by mail. (One of those paper ballots was disqualified, so only 23 were counted.)

As the memory card with the machine totals was inserted into the tally computer, we knew the race would be close between Fenwick, who had twice before run as an independent candidate for City Council, and Bellamy, a first-time candidate. Little did we know how close it would be.

After the electronic absentee votes were added to the total, the count was Fenwick, 1,081, and Bellamy, 1,080. If nothing else, we knew a recount was a distinct possibility.

All that was left were the hand-counted paper absentee ballots. I watched over the shoulder of one of the election officials as she read the numbers off the statement of results so they could be added to the spreadsheet of all the other votes. Reading ahead, I exclaimed aloud, "Oh my god! There's going to be a tie."

Indeed, Fenwick received another 7 votes and Bellamy another 8 votes, so that they were tied: 1,088 to 1,088. What would happen next?

Well, there were still provisional ballots to be counted. There were five from Walker Precinct that we were fairly sure would qualify because they had been cast when there was a malfunction of the electronic pollbook early in the morning of election day. There were three others that we knew about, plus one or two "provisional ID" ballots that were issued because the voter failed to bring an acceptable identification document to the polls pursuant to the new voter ID law that took effect in 2012.

We learned at the canvass the next day that there were a total of 12 provisional ballots.

In the meantime, we were exploring the possibilities for what would happen if the election turned out to be an exact tie. It turns out Virginia election law is quite clear about this, which comes as a surprise because so much else about the code is rather muddy.
§ 24.2-674 says:

If two or more persons have an equal number of votes for any county, city, town, or district office, and a higher number than any other person, the electoral board shall proceed publicly to determine by lot which of the candidates shall be declared elected.

The term "by lot" is not specifically defined, but it is generally meant to be any game of chance, usually a coin toss but the category also includes drawing straws, a roll of dice, a hand of poker or blackjack, or even rock-paper-scissors.

When the canvass met on Wednesday morning, we had to move from our usual location in a small conference room in the voter registration office to a much larger room in the basement of City Hall. Observers from the Democratic party -- including local chair Jim Nix -- and both the Fenwick and Bellamy campaigns were there. The local news media were there in force: both TV stations, three local newspapers, and at least one radio station sent reporters and photographers.

They all had to sit through the tedium of the canvass -- which I described to Ed Sykes of NBC29 as akin to "watching paint dry" -- as we checked the paperwork from all the precincts. In the process, we found two discrepancies that had not been recorded on election night that had not affected the outcome of any race. It was not until 11:00 a.m. that we opened the main event, the provisional vote precinct. That is what everyone -- candidates, party officials, and journalists -- was waiting for.

In the event, we found seven regular provisional ballots and disqualified one of them because the voter was registered in Albemarle County. Six of them were accepted as valid and we counted the votes. Bob Fenwick picked up three more votes and Wes Bellamy received none. The count now stood at Fenwick, 1,091; Bellamy, 1,088.

At that point, it became necessary to discuss what we would do with the remaining four provisional ballots, which had been cast because the voters, whose names were properly on the pollbook, had shown up at their precincts on Tuesday without appropriate identification.

The law says that those voters have until noon on the Friday following the election to present their IDs to the electoral board. They can do so in person, by fax, by U.S. Postal Service, or by commercial delivery service but not by having it delivered by a third person (such as a family member.)

Wanting to speed up the process as much as possible, the Electoral Board readily agreed to the suggestion that the four voters be contacted by telephone or email to remind them that they had the opportunity to bring their IDs to the office.

Later in the day, a local talk-radio host complained that this was "coddling" the voters and that making those telephone calls might even be illegal, and wondered what the State Board of Elections would have to say about the Electoral Board's action.

The propriety of the Electoral Board's directing the general registrar to make these phone calls is unquestionable. There is a section of the administrative code of Virginia, 1VAC20-60-60, which states plainly:

The electoral board or general registrar may attempt to contact an individual who has voted a provisional ballot when required by § 24.2-643 of the Code of Virginia and remind the individual that he is permitted to provide a copy of a form of identification as specified in subsection B of § 24.2-643 of the Code of Virginia to arrive no later than noon on the Friday after election day. However, there shall be no requirement that the electoral board or general registrar contact such individual.

The statutory authority for this provision is found in § 24.2-103 of the Code of Virginia.

That said, it should be pointed out that this is all new territory for election officials. The voter ID law took effect on July 1, 2012. (A new one will supersede it on January 1, 2014.) There was never a need prior to the November 2012 election to even consider telephoning voters about their missing IDs. The form each voter fills out on the envelope containing a provisional ballot, however, includes a space for a telephone number, so even without the clear guidance set out in the administrative code, the implication by the design of the form is that the State Board of Elections intended that the phone number be available for use by Electoral Boards and registrars.

Even so, callers to that radio program were complaining as late as Monday afternoon about the "dubious" practice of the Electoral Board to request that phone calls be made to expedite the completion of the canvass and election process.

When the board reconvened on Friday afternoon at 1:30 p.m., the crowd of observers was slightly thinner than it had been on Wednesday, but there were still more people present than at a "normal" canvass. Three of the four voters had provided an ID, so their votes would be counted.

In the end, Bob Fenwick received two more votes while his nearly-equal opponent, Wes Bellamy, received none from the provisional precinct. Fenwick ended up the winner by five votes, 1,093 to 1,088, and Bellamy graciously conceded and said he would not seek a recount, which would be within his rights as a losing candidate when the difference between the two was less than 0.5 percent of the total. He explained that, having observed the Electoral Board's canvass, he trusted the accuracy of the results.

All in all, the 2013 Democratic primary election in Charlottesville brought a lot more tension and excitement than had ever been anticipated or wanted. (The election official's prayer: "Dear Lord, we don't care who wins, as long as it's by a big margin.") Still, having seen a precise tie on election night, observing the rare occasion of an election decided "by lot" would have been an unforgettable event, one that is unlikely to happen again in Charlottesville for a long, long time.

As for the rest of the Commonwealth, a tie is still a mathematical possibility. So watch out.

NOTE: Virginia Politics on Demand contributor Rick Sincere has served on the Electoral Board for the City of Charlottesville since March 2004.

Charlottesville City Council Candidates Appear at JATP Forum

Last Thursday evening, the four candidates seeking election to the Charlottesville City Council this year appeared together at a forum sponsored by the Jefferson Area Tea Party (JATP). The event was held in Lane Auditorium at the Albemarle County office building.

Incumbent Democrat Kristen Szakos, her running mate Bob Fenwick, and Republican challengers Mike Farruggio and Charles "Buddy" Weber all participated in a fast-paced, hour-long question-and-answer session moderated by JATP member Terry Cooper.

Here is video of the event, beginning with the four candidates' opening statements:

The centerpiece of the evening was the Q&A, which lasted about half an hour:

The forum ended with each candidate presenting a closing statement:

After the exchange of views ended, the candidates posed together for a friendly photograph.

Buddy Weber, Bob Fenwick, Mike Farruggio, and Kristen Szakos on September 26.

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