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.

RLC Videos: Justin Amash and Randy Barnett

Congressman Justin Amash

Chronologically speaking, I may have jumped the turnstile by posting videos of the dinner speakers at the February 12 national convention of the Republican Liberty Caucus in Arlington.  My choice was not random, however; I had already noticed that YouTube views of the speeches by financial analyst Peter Schiff and former New Mexico Governor Gary Johnson were greater in number than the other videos I had posted from the convention.

The RLC convention lunch also had two speakers:  freshman U.S. Representative Justin Amash (R-Michigan), who at 30 years old is (I believe) the second-youngest Member of Congress as well as a longtime RLC activist in his home state, and Georgetown University law professor Randy Barnett.

Amash had also spoken at CPAC (the annual Conservative Political Action Conference) earlier in the week, where he was reportedly well-received.  Amash is perhaps the first Member of the House of Representatives to post all of his votes, and the rationale for most of them, on his Facebook page (www.facebook.com/repjustinamash), a practice he carried over from his time as a member of the Michigan state legislature.  He says he wants his votes to be subject to public scrutiny and that the new media -- in this case Facebook, but presumably also Twitter, Tumblr, and the rest -- are the easiest way to bring them to light.

Justin Amash represents the Grand Rapids area in Congress, the same part of Michigan once represented by Gerald R. Ford, who went on to become House Minority Leader, Vice President, and President of the United States. (One questioner suggests his hope for a similar career path for Congressman Amash.)  He is the youngest member of the congressional class of 2011, who were elected in the wave election of November 2010. He ran on a platform of "limited government, free markets, and individual liberty."

Congressman Amash's remarks are divided into two segments.  The first is his more formal address (though it is delivered without visible notes) and the second is a question-and-answer session with the audience.

RLC activist Laura Crockett introduces Congressman Justin Amash at the RLC convention lunch in part one:

Part two of Congressman Amash's presentation, a colloquy with RLC members:

After Congressman Amash finished his remarks and his answers to a number of questions, Professor Randy Barnett took the microphone and gave a speech entitled "Rediscovering the Libertarian Roots of the Republican Party."

Barnett, author of Restoring the Lost Constitution: The Presumption of Liberty, The Structure of Liberty: Justice and the Rule of Law, and other books, spoke largely about Chief Justice of the United States Salmon P. Chase, who as a lawyer in the 1840s in Ohio had argued several cases about slavery and the Fugitive Slave Laws. Chase was a founder of the Republican Party after serving in the U.S. Senate as a member of the Free Soil Party. (Chase was also the first GOP governor of Ohio, a Republican Senator for all of two days, and Secretary of the Treasury in Abraham Lincoln's cabinet.)

Barnett makes a strong case for the Republican party's libertarian origins. In the Q&A period, he also discusses the Repeal Amendment that he has proposed, along with the Speaker of the Virginia House of Delegates, William Howell, which is gaining a lot of attention around the United States.

Listen closely to Professor Barnett's remarks for some astute analysis of the Privileges and Immunities Clause of the Fourteenth Amendment as well as some sharp commentary on the constitutionality of the "individual mandate" in the 2010 health care law (colloquially known as "Obamacare").

Professor Randy Barnett, Part One:

Professor Randy Barnett at the RLC convention, Part Two:

Professor Randy Barnett answers questions (part three):

Still more RLC videos will be posted here. Watch for them soon.

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