Friday, August 30, 2013

Update: The continuing debate over 14th Amendment Privileges and Immunities Clause/Incorporation of the Bill of Rights

I am having a debate with someone who believes that the 14th Amendment's Privileges and Immunities clause incorporates the Bill of Rights to the States.  My previous posts on this are as follows:

Incorporation of the Bill of Rights to the States as per the Privileges and Immunities Clause of the 14th Amendment

Follow-Up: 14th Amendment Incorporation of Bill of Rights Debate

Here is my latest email to him:

You misunderstand. Of course the clause ensures that all privileges and immunities were protected, specifically of the emancipated slaves. The laws you listed was not about the bill of rights, but about how one group was not being treated equally under the law. That was the purpose of the amendment. It was not intended to be a general allowance of the federal government forcing the states to apply the bill of rights. Your argument is based on absolute assumptions, and you are missing the whole nature of the writing of the clause. Once again, I get what you are saying, but if you allow the federal government to force the states to do one thing, it sets precedent, and allows the federal government to force the opposite. It's like in the McDonald v. Chicago case, of which gun owners felt it was a victory for gun rights when the Supreme Court applied the 2nd Amendment to Chicago to strike down Chicago's handgun ban law. It was not a victory, but a nail in the coffin. It set a precedent of the federal government dictating to a city/state regarding gun rights. All they have to do is strike down the Heller case, change gun rights from being an individual right to a collective right, and then use McDonald as evidence that the federal government can apply the second amendment on the cities and states, and boom, our individual gun rights go out the window. If you allow the federal government to force the states to do something that you think is good, you allow the federal government to force the states to do something that is the opposite. Your definition, and understanding of the clause, places state sovereignty in jeopardy. Read the debates, and understand that they, by majority, overruled Bingham's theory. The States were to be instructed not to treat anybody differently under the law, in line with Article IV, Section 2, Clause 1 - which means if I have the right to something, so does someone of the lineage of a slave, and anyone and everyone else - that is what the privileges and immunities clause means. Equality under the law. But, that does not mean forcing the States to comply as the federal government dictates regarding the Bill of Rights. That is where the informed voter comes in. Remember, the federal government is for external issues, and the States handle internal issues. The privileges and immunities clause is to ensure all people, regardless of race, color or previous condition of servitude, are treated equally under the law - and that is it. So if in a state they decide that one group can own guns, then all can. If they decide one group can't, then all can't. That is what the clause means. This incorporation of the Bill of Rights was not the intent of the voting body, or of the ratifying states - and for good reason. Once again, requiring equal treatment under the law is one thing, but allowing the federal government to force the states to abide by the bill of rights, as defined by the federal government, is a dangerous thing, and against the original intent of those that debated over the 14th Amendment, as well as the founding fathers.



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