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.

Full Text: E.W. Jackson's Unjustifiable Characterization of Gays as 'Totalitarian'

E.W. Jackson, May 2013

In August, I noted in this space that the Fredericksburg Free Lance-Star had a month earlier published an opinion piece I write about E.W. Jackson, the Republican nominee for lieutenant governor of Virginia this year. Jackson faces state Senator Ralph Northam of Norfolk, the Democratic party's nominee, on Tuesday in a general election that will also see voters choose among three nominees for governor (Republican Ken Cuccinelli, Democrat Terry McAuliffe, and Libertarian Robert Sarvis) and between two candidates for attorney general (Democrat Mark Herring and Republican Mark Obenshain).

All the candidates are traversing the state this weekend in the final stretch of the campaign season. Within 48 hours of the time I write this (barring a virtual tie in any of the top three contests), winners will be known and soaked with Gatorade or champagne and second- and third-place candidates will be licking their wounds and planning their comebacks.

Upon reflection, I realized that my summary of my op-ed piece on E.W. Jackson did not do it justice. Since it has been more than three months since the Free Lance-Star printed it, I feel it is within my authorial rights to republish it here, while its message is still relevant.

This is the text as I submitted it to the Free Lance-Star, which put it on its opinion page on Sunday, July 21, 2013.

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E.W. Jackson's unjustifiable characterization of gays as 'totalitarian'

Richard Sincere

In remarks widely circulated only after he received the Republican Party of Virginia's nomination to be lieutenant governor, E.W. Jackson said that gay men and lesbians have “an authoritarian, totalitarian spirit that has decided they know what’s best for everyone.”

Jackson repeated the characterization, adding: “I used two words to describe what they’re trying to do: authoritarian and totalitarian, and I believe that. I believe that they are of a mindset that says we want to destroy, in any way we need to, anyone who dares oppose this agenda.”

Although there are radicals within any political movement, whether right or left, the totalitarian impulse is rare and exists only on the fringes.

Jackson's words are at odds with the attitudes and activities of the large number of gay and lesbian Americans whose core beliefs are keenly attuned to the values of “life, liberty, and the pursuit of happiness” that Jackson claims animate his own political agenda.

Take, for example, the Log Cabin Republicans (LCR).

Reason magazine correspondent Michael Lynch began one report by saying, “Two and a half years in Washington and I've finally found the free marketeers in the Republican Party – they're gay.”

Lynch had attended an Arlington LCR meeting that featured a talk by British political scientist Nigel Ashford, who made a case against employment non-discrimination laws, and he noted that the vast majority of those present “appeared to agree with Ashford.”

He added that the president of the group said that LCR's mission is “to work with Republican candidates on shared issues, such as lower taxes, while letting them know you're gay and that there are good gays dedicated to the party.”

That hardly resembles an “authoritarian” or “totalitarian” agenda. Maybe that's why former Prince William County Republican chairman Bill Kling once said that Northern Virginia Log Cabin meetings are “fast becoming a 'must' campaign stop for many GOP candidates.”

Or look at the Pink Pistols, a pro-gay, pro-gun organization, with its 60 chapters across the country and abroad.

Pink Pistols filed a friend-of-the-court brief in the landmark 2008 U.S. Supreme Court case, District of Columbia v. Heller, in which the Court eventually decided that firearms ownership is an individual right protected by the U.S. Constitution.

The Pink Pistols argued that "not only do members of the LGBT community have a heightened need to possess firearms for self-protection in their homes, the Second Amendment clearly guarantees this most basic right. This Court should not permit the democratic majority to deprive LGBT individuals of their essential and constitutional right to keep and bear arms for self-defense in their own homes.”

Defending the Second Amendment rights of individuals is neither “authoritarian” nor “totalitarian.”

Third, Gays and Lesbians for Individual Liberty (GLIL), which I cofounded in 1991 with a group of like-minded libertarians, classical liberals, and conservatives, has a mission to advance the ideas of economic and personal freedom and individual responsibility.

Considering that, earlier this summer, the Boy Scouts of America ended its policy of excluding gay teens from membership, it is noteworthy that in 2000, GLIL took the BSA's side before the U.S. Supreme Court. In a friend-of-court brief, GLIL asserted that, as wrong-headed as the BSA's policy was, it had a right to maintain it as part of the Constitution's guarantees of free speech and freedom of association.

As conservative columnist George Will summarized our argument, “GLIL vigorously deplores the Scouts' creed, which is that homosexuality is incompatible with the Scout obligation to be 'morally straight' and 'clean.' But GLIL agrees that the Scouts are a creedal organization with an explicitly moral mission. And citing much history – for example, until the late 1970s the IRS denied tax-exempt status to organizations that 'promoted' homosexuality – the GLIL brief argues that gays have suffered 'when freedom of association has not been respected and governments have been allowed to trample on the rights of citizens to freely gather together.'”

Standing up for the freedom of association for those with whom one disagrees, while reserving the right to persuade them to change their position, does not demonstrate a totalitarian impulse.

Whether E.W. Jackson was the best choice as the GOP's lieutenant governor nominee is a broader topic best left to other days and other commentators.

One thing is clear, however: his blanket condemnation of gay citizens as “authoritarian” and “totalitarian” lacks factual foundation. He should acknowledge that there are many gay men and lesbians who share his fundamental desire for strong families, free markets, and smaller, less intrusive government.

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Richard Sincere was a Charlottesville delegate to the Republican Party of Virginia's state convention on May 18. He blogs about politics and culture at http://www.RickSincere.com.

GLIL Submits Brief in Second Amendment Case

Gays and Lesbians for Individual Liberty (GLIL), an organization with which I have been affiliated since its founding on February 12, 1991 -- yes, GLIL's anniversary is just one day away -- has submitted an amicus curiae brief to the U.S. Supreme Court in the case of District of Columbia v. Heller. This is the most important Second Amendment case to reach the nation's highest court in almost 70 years.

The following news release is being distributed today by GLIL:

News Release from
Gays and Lesbians for Individual Liberty

Gays and Lesbians for Individual Liberty Submit Brief in Second Amendment Case

(WASHINGTON, February 11, 2008) – Gays and Lesbians for Individual Liberty (GLIL) has joined with Pink Pistols in support of the Second Amendment rights of lesbian, gay, bisexual, and transgendered Americans by filing a friend-of-the-court brief with the United States Supreme Court.

GLIL chairman Richard Sincere explained: “The brief was filed in support of Dick Anthony Heller, who sued the District of Columbia to have its draconian prohibition on private gun ownership overturned. Heller’s rights to own a gun for self-protection were upheld by the Court of Appeals for the D.C. Circuit. D.C. Mayor Adrian Fenty appealed the case to the Supreme Court.”

The brief states that "Laws that prevent the use of firearms for self-defense in one's own home disproportionately impact those individuals who are targets of hate violence due to their minority status, whether defined by race, religion, sexual orientation, or other characteristic.… [Not] only do members of the LGBT community have a heightened need to possess firearms for self-protection in their homes, the Second Amendment clearly guarantees this most basic right. This Court should not permit the democratic majority to deprive LGBT individuals of their essential and constitutional right to keep and bear arms for self-defense in their own homes"

The brief also makes a unique argument, tying the denial of rights of gay men and lesbians to possess firearms to the statutory mandate to exclude those same citizens from military service through the "Don't Ask Don't Tell" rules:

"… Interpreting the Second Amendment as recognizing a right conditioned upon military service, where eligibility for military service is defined by the Government, prevents the Amendment from acting as any constraint on Government action at all. Such a result is contrary not only to the literal text of the Amendment, but to the intentions of the Framers. Further, in light of the current 'Don't Ask, Don't Tell' policy, such an interpretation would completely eradicate any Second Amendment right for members of the LGBT community."

A number of other organizations have also submitted amicus curiae briefs to the Supreme Court in this case, arguing in favor of an individual right to possess firearms, including the Cato Institute, Disabled Veterans for Self Defense, Jews for the Preservation of Firearms Ownership, the Rutherford Institute, and a group of women legislators and academics.

The case is District of Columbia v. Heller, Docket No. 07-290. A copy of the Pink Pistols/GLIL brief can be accessed at http://tinyurl.com/29uqgo.

Gays and Lesbians for Individual Liberty was founded in February 1991 to advance the ideas of economic and personal freedom and individual responsibility. It has members across the United States and in several foreign countries. GLIL previously filed an amicus brief in the Supreme Court case of Boy Scouts of America v. Dale. For more information, visit http://www.glil.org or telephone [redacted].

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The Supreme Court will hear oral arguments in D.C. v. Heller on March 18, 2008. A decision will be released later in the year, probably at the end of the Court's term in late June.