Tag Archives: Fourteenth Amendment

State vs. National Citizenship—the Fourteenth Amendment, Section 1 must be Repealed—Time to Bite the Bullet, Folks!

Donald Trump has won a lot of national support for his position that “anchor babies” are not U.S. Citizens.  https://www.yahoo.com/politics/birthright-citizenship-where-the-2016-127093585661.html

Despite their appetite for socialism and socialist engineering of U.S. Demography, I think it is fair to say that few if any the Radical Republican Framers of the Fourteenth Amendment ever dreamt of or envisioned a situation where millions of “huddled masses” and “wretched refuse ” types of people would come to America just to have babies to enroll in schools and obtain other welfare entitlements. 

No, the purpose of the Fourteenth Amendment was to create a national standard for citizenship and civil rights, and to abolish the notion that the States of the United States were equivalent to the “States” who obtain membership in the United Nations.  

State citizenship was the weakest point of Cousin Abraham’s Northern policy during the War:  while many Radical Republicans wanted to call Robert E. Lee and Jefferson Davis, and every other Confederate Officer and Politician, a “traitor”, these charges simply would not stick for one single reason.  From 1776-1868, the individual states were the ones which established and determined citizenship, and so Lee was right to think of himself as a Virginian (about a 10th or 12th generation Virginian, in fact) by both the doctrines of ius solis and ius sanguinis.  Jefferson Davis might have been born in Kentucky, but he was a “naturalized” Mississippian.  Pierre Gustave Toutant-Beauregard was a 6th or 7th generation Louisianian, like Lee, either by ius solis or ius sanguinis

So Lee and Beauregard were unquestionably citizens of their own home states, and NOT of the United States.  They might have been employed in the armies of the United States, or, like Davis, also officers of the United States Government in its legislative (Senate) and Executive Branches (where Davis was Secretary of War).

But by every pre-War understanding, the Confederate leaders were not CAPABLE of betraying a Country WHICH NEVER EXISTED.  Like the States they belonged to, the Confederate Leaders could resign from the service of the Union, but in no legal or moral sense could they be called “traitors” to it, because (at least before 1868) the UNION WAS NOT A SINGLE SOVEREIGNTY.  Yes, indeed, quite simply, there WAS no such thing as “United States citizenship” prior to the Fourteenth Amendment—just a very generalized “American” citizenship which dependent on the collaboration and contribution of the ratifying states.  And that is why “Birth of a Nation” (by D.W. Griffith) was so correctly named: a collection of closely cooperating and allied free nation-states (small Jeffersonian Democracies) went to war with each other in 1861, and they were, afterwards, at gunpoint, forced into one single new country.

This was the debate that framed Barack Hussein Obama’s Presidency—so long as he could convince (fool?) a majority of the people into believing he was born in Hawaii, he was eligible, under the ius solis doctrine of the 14th Amendment, to be President.  But if a ius sanguinis standard should be applied, Obama’s rather famous Kenyan father stood as an absolute obstacle to his eligibility.  So as Dinesh D’Souza had shown in his brilliant movie Obama 2016, Obama’s goal as President was absolutely to abolish both the identity and nature of American society and culture.  Now the 44th President effects this transformation largely through emotionally manipulative lies and psychological manipulation, rather than democratic process or law.

But, indeed, the language of the Fourteenth Amendment’s “citizenship” clause is clear enough in making “soil” more important than “blood,” and has been consistently applied by the Supreme Court for over a hundred years to mean that literally anyone born in the United States, for any reason, automatically is an American Citizen.  This is obviously a disaster for the Country and many have written about it, including the mad Texan elf of Clearwater, Florida, Robert M. Hurt, Jr.:

Trump Is Right: Anchor Babies Do Not Rightfully Become US Citizens


What Hurt proposes is essentially changing the law by reinterpreting the law, and this often does not work so well—and could in fact be described as the source of much of modern America’s woes—allowing the Supreme Court to say that night is day and day is night is getting old, 62 years after Earl Warren became Chief Justice, 113 after Oliver Wendell Holmes brought Massachusetts “progressivism” to the Court, paving the way for the New Deal for whose eventual triumph (through popularity over constitutional rigor) Holmes might be considered a kind of Prophet….

Among Holmes’ most famous pronouncements is that, “an experiment, as all life is an experiment” (Abrams v. United States, 250 U.S. 616, 630 (1919)).  Allowing, or even encouraging, population replacement—the “Browning of America”—is among the left’s favorite long-term social goals and experiments, and (admittedly) all of us who oppose the Browning of America are classified by Salon.com, the Huffington Post, and the New York Times, among others, as vile racist reactionaries. 

But I can live with that.  As far as the way out, though, as far as how White America can preserve itself, I don’t think that verbal games such as Robert M. Hurt, Jr., Donald John Trump, and many others will work.  

No, I always prefer dealing with issues directly and in taking a “full-frontal” approach.  The Fourteenth Amendment resulted from a massive war of Centralization of Power.  The only politician in MY LIFETIME who ever addressed the problem directly was San Diego Mayor and later California Governor and Senator Pete Wilson: who directly advocated repeal of the citizenship clause of the 14th Amendment during the 1980s.  He is almost totally forgotten now, but when I was in Law School, I remember thinking his approach was sound.  Repeal of the Citizenship Clause would be clear statement that unlimited immigration and population replacement via “anchor babies” is and ought to be intolerable.

People don’t realize it, but prior to the War of 1861-65 between the North and the South, MANY NORTHERN STATES if not most of them, DENIED CITIZENSHIP of any kind to blacks.  (the last state to have such a law was Oregon, which literally made it simply illegal to “be a negro” in the State of Oregon— to enter the state at all, under any pretext, was cause for imprisonment, fine, and immediate removal to the state lines upon release.

While “the Underground Railroad” was very famous, you might ask yourself, “if Abolitionist sentiment was so strong in the North, (a) why was the underground railroad “underground” and (b) why did it end up in Canada?  The answer is that since Northern States had enacted “no black citizenship” laws, being “free” in most places meant nothing. 

The way history is taught and discussed in modern America, it’s not always quite clear, but Chief Justice Roger Taney, in Scott v. Sanford was actually adopting a MERGER of both the Northern and Southern positions in his (plurality against Freedom for Slaves by Crossing State Lines) decision in 1857 (every Justice on the Court rendered a Separate opinion in that case). 

Justice Taney said that no negro could ever be a citizen of the United States.  So he was ALREADY (by usurpation) establishing a Federal rather than a state standard of citizenship—THAT IS WHY THE FOURTEENTH AMENDMENT WAS ENACTED—the whole War Between the States and 13th, 14th, and 15th Amendments to the Constitution can be considered an effort to Overrule the “Dred Scott” ruling— but what many people forget is that Taney had already taken the critical first step by attempting to impose NORTHERN standards of Citizenship NATIONWIDE— ironically, this ruling (if it had been allowed to stand) might well, would almost certainly, have had the bizarre effect of “outlawing” or depriving tens of thousands of free (and many slaveholding) blacks in Louisiana of their citizenship, professional licenses, and right to vote. 

So the real problem was Taney’s (1857, pre-War) judicial “stealth” transition from allowing STATES to determine Citizenship to his rather clumsy attempt to impose a NATIONWIDE standard for citizenship.  The Fourteenth Amendment was the “Radical Republican” answer to this. 

Ironic, isn’t it?, that when properly understood, the Fourteenth Amendment was just as oppressive to the Northern States as to the Southern States.  Northern States could no longer ban black people. (Although the remarkable State of Oregon did not repeal it’s African-exclusionary laws until 1926, and only ratified the Fifteenth Amendment until the centennial of that State’s admission to the Union in 1959)(Oregon’s 1844, pre-state, pre-war position on slavery was that all blacks, free or slave, should be whipped and lashed twice a year until they left the territory).

Former California Governor Pete Wilson, by contrast with both Roger Taney and Donald Trump, understood that and would have returned to the individual states the power to determine citizenship by repeal of the “birth clause” of the Fourteenth Amendment.  One can easily imagine, almost too easily, how permitting the states to determine citizenship would be nearly equivalent to allowing secession—because Hawaii, for example, could pass a law decreeing that no “Howlees” (i.e. Anglo-Saxon or other European Whites) could ever be citizens of Hawaii—and so effectively dissolve the ties between that improperly annexed Island State and the rest of “the Union.”  (Hawaii currently has the most radical and politically “real” and active secessionist movement in the USA).

Even if the States COULD determine citizenship, the balance of the 14th Amendment still protected everyone “subject to the jurisdiction” of the United States with regard to Civil Rights…. so even if there were no “national standard for citizenship” there could still be a “national standard for civil rights.”

Should Private Gun Sales by Regulated by the State or Federal Governments? Well, it could be a return to slavery for all or it could be a “Great Leap Forward,” could it not? (only 2.5 million died of violence, the rest merely died of starvation)

Consider the holding of the U.S. Supreme Court in Murdock v. Pennsylvania (319 U.S. 105,  108 , 63 S.Ct. 870, 872, May 5, 1943):  

The First Amendment, which the Fourteenth makes applicable to the states, declares that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press * * *.’ It could hardly be denied that a tax laid specifically on the exercise of those freedoms would be unconstitutional. Yet the license tax imposed by this ordinance is in substance just that.

Now let’s paraphrase that statement with reference to gun control:

The Second Amendment, which the Fourteenth makes applicable to the states, declares that, ‘* * * the right to keep and bear arms shall not be infringed.”  It could hardly be  denied that a regulation laid specifically on the exercise of this right would be unconstitutional. Yet the legislation now before Congress would  imposed by its express terms as  well as substance just such an unconstitutional infringement.

Later on, the Court in Murdock made the general point more broadly and directly (319 U.S. at 113, 63 S.Ct. at 875):

A state may not impose a charge for the enjoyment of a right granted by the federal constitution. Thus, it may not exact a license tax for the privilege of carrying on interstate commerce * * * * A license tax applied to activities guaranteed by the First Amendment would have the same destructive effect.  * * * * It is a flat license tax levied and collected as a condition to the pursuit of activities whose enjoyment is guaranteed by the First Amendment. Accordingly, it restrains in advance those constitutional liberties of press and religion and inevitably tends to suppress their exercise. That is almost uniformly recognized as the inherent vice and evil of this flat license tax.

And again, we could easily paraphrase this text to apply to the Second Amendment, and we would be bolstered by recent Supreme Court Decisions especially 06-28-2010 McDonald v City of Chicago Ill 130 SCt 3020

(For the Full text of Murdock, see: Murdock v Com of Pennsylvania May 3 1943)(see also *2 below).

The right to self-defense is fundamental.  One who believes in the theory of Darwinian Evolution might say it is the most fundamental of all rights: once alive, every creature has the right to do whatever is necessary to preserve its life “in nature red in tooth and claw.”

But in historical as well as evolutionary time the right to self-defense antedates any rights protected by the First Amendment to the Constitution of the United States because it does not depend on our humanity (where speech clearly does).  Being part of every animal’s instinctive makeup and nature, it is a right of all who are “born free.”  

I wrote recently of my conversation with a New Orleans Policeman at one of my favorite cafes: the Trolley Stop at 1923 St. Charles Avenue.  This officer (an African American) told me he believed in the Second Amendment and the right to keep and bear arms, “but do you want them to have more firepower than us?  do you want them to be able to outgun us?”

The right of government officials to have more “firepower” than the people is not fundamental, anymore than it is the right of “some animals to be more equal than others.”  Certain lions might wish for stronger jaws or sharper teeth, but none have any “right” to more than others.

Government “entitlement” to superiority on the battlefield, in a very real and direct manner, is like slavery itself: a purely human invention res contra natura alteris omnis rebus (an unnatural thing, unlike all other things).   Legislatively determined inequality of firepower is, to my mind, as utterly intolerable as inequality of speech or the rights to breathe and walk upright.  (If you order me to bow down, you had better be a King, deriving his rights from God, and if you are such a Divine King, you have the right to kill me but I have no right to kill you—and this is inherently un-American.)

As Justice Clarence Thomas has written in several opinions now, the coincidence between the abolition of slavery and the advent of gun control laws in the United States was no accident: freedom for former slaves implied the full panoply of rights available to white citizens.  For better or for worse, discrimination has never been written into the constitution, until now.  But people have been conditioned to think that discrimination against the poor is acceptable, discrimination against the non-elite middle class is acceptable, in fact ALL discrimination is acceptable so long as it is not done along racial lines, apparently.  So the government now wants to establish a hierarchical class system in relation to gun ownership.

The evolving classes, castes, and categories of citizens recognized by the Patriot Act the NDAA, and the proposed gun control legislation now before Congress are basically these: (1) Federal Government Police & their Agents, (2) State Government Police & their Agents, (3) Everyone else in North America.  I fear that these are categories or classes of people which today’s Supreme Court might just uphold as “rational” and therefore constitutional, since they are neither racial nor sexual and therefore not “suspect”—ONLY racial discrimination has been outlawed in the US, NOT discrimination by class or title or status as office or license holder….and this is an American disease or sickness that is killing the Constitution.

The chimeras haunting both American Slavery and the abolition of American Slavery are both Racial: in the beginning, the alleged Racial inferiority of Africans was asserted in Defense of Slavery, and it was widely found to be an inadequate defense.   But afterwards, in a SUPREME Perversion of logic, the Supreme Court of the United States basically rendered all the civil rights laws of the United States enacted after 1865 bad jokes: simultaneously nugatory pointless and toothless, by saying they were designed ONLY to insure equality of the races and nothing else.

Now that we have an “African” President [I would call him African rather the African-American—Jessie Jackson, Morgan Freeman, and Al Sharpton are “African Americans”, but Obama is not] the civil rights laws, it seems, can be dispensed with entirely.  

Total Power in the Hands of Government: this ultimately, appears to be Obama’s goal in life—his self-perceived destiny, his ambition (and his goals are supported by a remarkably broad coalition including obvious evil-doers Senators Dianne Feinstein and Barbara Boxer, but treacherous snakes such as John McCain and Lindsey Graham).

The long “road to serfdom” that began with the map laid out by the Communist Manifesto in February 1848, finding its first governmental foundation laid down by Abraham Lincoln in the United States 1861-65, and was afterwards expanded into a highway under Progressives such as Theodore Roosevelt, William Howard Taft, and the possibly unwitting (or just witless) Woodrow Wilson, then a superhighway under Franklin D. Roosevelt and all his successors, is about to reach its final destination in the Dictatorship of the Proletariat if Barack Hussein Obama can just disarm the American People FOREVER!

The Courts have been heading in this general direction (the abolition of civil rights all together, once and for all, forget about giving any rights to black or white people) for a very long time.  In fact, the entire purpose of Earl Warren’s Civil Right’s Revolution in the Courts, in retrospect, was simply to pit race-against-race, to create unhealthy envy and hateful one-upsmanship rather than healthy competition.  

True, there are some majestic, wonderful opinions and some beautiful language I have found in those old decisions from the 1960s and 1970s in particular, mostly petering out around 1985-6.  Very little GOOD has happened in civil rights since 1987, but, strange as it may seem, the recent jurisprudence of Clarence Thomas to the Supreme Court has created at least one “Point of Light” in Second Amendment Jurisprudence in particular.  Ordinarily, political rhetoric concerning the lessons of or effects lingering slavery becomes tiresome quickly.  But in the case of the Second Amendment after emancipation, nothing could be clearer than the need of former slaves to own guns to protect their newly acquired liberty and property (even as limited as it was for most of the century and a half since emancipation).  

Abolition of the private right to keep and bear arms, without much doubt, is a RETURN TO SLAVERY FOR ALL, regardless of race, creed, color, ethnic origin, religion, sex, or occupation—unless you are a member of the police.  The State will then have an ABSOLUTE monopoly on legitimate violence, and the jails and prisons will be filled with all dissenting individuals.

Aside from Clarence Thomas, who will defend us against the threatened confiscation of our only sure means of self-defense AGAINST THE GOVERNMENT?  Anthony Kennedy, painfully and unhappily, stands as at least an occasional beacon for individual privacy and personal autonomy. Antonin Scalia would probably be a constitutionalist if it were politically popular, but he appears to believe that legislatures and congress can limit the constitution pretty much at will if they want to.  So Scalia’s contributions to “freedom” jurisprudence are pretty much limited to the realm of “judge made” law and precedent.  We need two more votes—perhaps we have Samuel Anthony Alito (*), John Roberts, Stephen G. Breyer?  Maybe or maybe not.  John Roberts appears to blow with the political winds like Scalia.  Breyer would probably follow Hillary Clinton’s anti-gun lead.  It looks bad, folks!

But to go back to the key point of Murdock v. Pennsylvania and its companion cases (e.g. Douglas v City of Jeannette (Pennsylvania) 319 US 157 63 SCt 882 87 LEd 1324 *1943* and Jones v City of Opelika:

the power to regulate commerce does NOT include the power to infringe upon the fundamental rights guaranteed by Amendments 1-10.   As legions of Law Professors have correctly pointed out, this concept (that there MUST BE an exception to Congress’ broad regulatory power, even after the onset of the New Deal) traces back most precisely to Footnote Four of U.S. v. Carolene Products, Inc., decided in 1938. US v Carolene Products Co 304 US 144 58 SCt 778 82 LEd 1234 SCOTUS 04-25-1938.

Given the advances in Second Amendment Jurisprudence seen over the past decade in D.C. v. Heller and MacDonald v. City of Chicago, I would hate to see this Country take another Great Leap Forward (*1)  into Maoist Communist Dictatorship. 

So, should Private Gun Sales be Regulated by the State or Federal Government? Only if we want to take a Great Leap Forward into a de facto Communistic Caste System, or an animal farm where “Some Animals are More Equal than Others”

(*1)  Wikipedia casually and very briefly mentions in a longer and very favorable, supportive (i.e. pro-communist, pro-Maoist) article on the Great Leap Forward:

Deaths by violence

Not all deaths during the Great Leap were from starvation. Frank Dikötter estimates that at least 2.5 million people were beaten or tortured to death and 1 to 3 million committed suicide.[100] He provides some illustrative examples. In Xinyang, where over a million died in 1960, 6-7 percent (around 67,000) of these were beaten to death by the militias. In Daoxian county, 10 percent of those who died had been “buried alive, clubbed to death or otherwise killed by party members and their militia.” In Shimen county, around 13,500 died in 1960, of these 12 per cent were “beaten or driven to their deaths.”[101]

Modes of resistance

There were various forms of resistance to the Great Leap Forward. Several provinces saw armed rebellion,[106][107] though these rebellions never posed a serious threat to the Central Government.[106] Rebellions are documented to have occurred in HonanShandongQinghaiGansuSichuanFujian, and Yunnan provinces and in the Tibetan Autonomous Region.[108][109] In Honan, Shandong, Qinghai, Gansu, and Sichuan, these rebellions lasted more than a year.[109] Aside from rebellions, there was also occasional violence against cadre members.[107][110] Raids on granaries,[107][110] arson and other vandalism, train robberies, and raids on neighboring villages and counties were common.[110]

According to over 20 years of research by Ralph Thaxton, professor of politics at Brandeis University, villagers turned against the CPC during and after the Great Leap, seeing it as autocratic, brutal, corrupt, and mean-spirited.[1] The CPC’s policies, which included plunder, forced labor, and starvation, according to Thaxton, led villagers “to think about their relationship with the Communist Party in ways that do not bode well for the continuity of socialist rule.”[1]

Often, villagers composed doggerel to show their defiance to the regime, and “perhaps, to remain sane.” During the Great Leap, one jingle ran: “Flatter shamelessly—eat delicacies…. Don’t flatter—starve to death for sure.”[34]

Impact on the government

Many local officials were tried and publicly executed for giving out misinformation.[111]

Mao stepped down as State Chairman of the PRC in 1959, though he did retain his position as Chairman of the CPC. Liu Shaoqi (the new PRC Chairman) and reformist Deng Xiaoping (CPC General Secretary) were left in charge to change policy to bring about economic recovery. Mao’s Great Leap Forward policy came under open criticism at the Lushan party conference. The attack was led by Minister of National Defense Peng Dehuai, who, initially troubled by the potentially adverse effect of the Great Leap Forward on the modernization of the armed forces, also admonished unnamed party members for trying to “jump into communism in one step.” After the Lushan showdown, Mao defensively replaced Peng with Lin Biao.

However, in June 1962, the party held an enlarged Central Work Conference and rehabilitated the majority of the deposed comrades who had criticized Mao in the aftermath of the Great Leap Forward. The event was again discussed, with much self-criticism, with the contemporary government calling it a “serious [loss] to our country and people” and blaming the cult of personality of Mao.

(*2)  A state may not impose a charge for the enjoyment of a right granted by the federal constitution. Thus, it may not exact a license tax for the privilege of carrying on interstate commerce (McGoldrick v. Berwind-White Co., 309 U.S. 33, 56-58, 60 S.Ct. 388, 397, 398, 84 L.Ed. 565, 128 A.L.R. 876), although it may tax the property used in, or the income derived from, that commerce, so long as those taxes are not discriminatory. Id., 309 U.S. at page 47, 60 S.Ct. at page 392, 84 L.Ed. 565, 128 A.L.R. 876 and cases cited. A license tax applied to activities guaranteed by the First Amendment would have the same destructive effect. It is true that the First Amendment, like the commerce clause, draws no distinction between license taxes, fixed sum taxes, and other kinds of taxes. But that is no reason why we should shut our eyes to the nature of the tax and its destructive influence. The power to impose a license tax on the exercise of these freedoms is indeed as potent as the power of censorship which this Court has repeatedly struck down.  *   *   *   *   *   *   * [I]n Jones v. Opelika, * * * 316 U.S. at pages 607-609, 620, 623, 62 S.Ct. at pages 1243, 1244, 1250, 1251, 86 L.Ed. 1691, 141 A.L.R. 514 * * * as in the present ones, we have something very different from a registration system under which those going from house to house are required to give their names, addresses and other marks of identification to the authorities. In all of these cases the issuance of the permit or license is dependent on the payment of a license tax. And the license tax is fixed in amount and unrelated to the scope of the activities of petitioners or to their realized revenues. It is not a nominal fee *114 imposed as a regulatory measure to defray the expenses of policing the activities in question. 8 It is in no way apportioned. It is a flat license tax levied and collected as a condition to the pursuit of activities whose enjoyment is guaranteed by the First Amendment. Accordingly, it restrains in advance those constitutional liberties of press and religion and inevitably tends to suppress their exercise. That is almost uniformly recognized as the inherent vice and evil of this flat license tax.

(*3): do you ever why do we have or how we got three justices named “Anthony” or a rare Italian variant “Antonin”>|?)

What Makes an American Citizen Free? What are the Elements of American Citizenship? Gun Control is Only for Slaves and Prisoners—Justice Clarence Thomas’ elegant proclamation of the equation of Amendments I, II, V, XIII, XIV and XV

Justice Clarence Thomas has only rarely articulated Jeffersonian brilliance, but his opinion in this case stands as one of the constitutional libertarian highlights of American Jurisprudence over the past 60 years—it should be required reading in every High School in the United States of America, and probably all over the world.  06-28-2010 McDonald v City of Chicago Ill 130 SCt 3020; see also Habib,  Connecticut Law Review Habib 04-2012 on Second Amendment.

Over the past 21 year since he was confirmed to the U.S. Supreme Court, I have only rarely cheered or celebrated the opinions of Justice Clarence Thomas—on the one hand he seems to copy or imitate Scalia.   On the other hand he seems like more than a bit of an “Uncle Tom”, with his only assertions of his own African-American identity in moments to maximize contention between the races and/or to discriminate (ironically) against his own people—whose members indisputably disproportionately populate the prisons of the United States of America, Land of the Free and the Home of the Brave.

But on this one occasion, at the very least, I think that all Americans need to celebrate one of Justice Clarence Thomas’ opinions as a race-neutral, 100% positive affirmation of the concepts underlying freedom in the United States: in June of 2010, Clarence Thomas advocated, and historically justified, a clarion call to emblazon the right to keep and bear arms on the shield of the passport of every American Citizen as an essential element and characteristic of every individual’s constitutional citizenship.

In reading and reviewing Thomas’ decision, only one of several concurrences and dissents in the case of Otis McDonald v. City of Chicago I think Thomas has by this one opinion separated himself from the herd heading over the cliff into a national malaise of slavery, precisely by reviewing the constitutional emancipation in relation to the most dangerous of all rights—the individual right to keep and bear arms AGAINST the power of the Government.

The ONLY gap I see in Clarence Thomas’ logic is a step I hope and pray the Court will soon recognize: that the burgeoning prison population of the United States of America does not need to be filled even further by the “felon-in-possession” laws which seek to deprive every person, once released from a custodial sentence, into a second class citizen, regardless of the nature of his or her crime or offense.

What is more ridiculous than the notion that any person once convicted, just for example, of vehicular homicide, can drive away from the prison walls on the day of his or her release, but may never again own a gun or rifle for pleasure, sport, or self-defense of his or her home or person?   The securities fraud mastermind, convicted of insider trading, fraudulent misrepresentation, embezzlement, or worse, may return immediately to the brokerage or stockmarket, but must never again go hunting with anything but a bow and arrow, or to a shooting range at a state fair…..How preposterous!  How utterly non-sensical, especially in light of Clarence Thomas’ decision below….

              Just as the United States Constitution, incorporated to the States by the Fourteenth Amendment for the purpose of assuring equal protection under law, guarantees freedom of speech, press, religion, assembly, and petition, recognizing these rights, along with due process of law, as critical to the fulfillment of personal autonomy, dignity, and political equality, the right to bear arms has the same intrinsic value;

                Within the ambit of an individual right to self-defense outlined in Heller and McDonald, the Second Amendment enshrines the most fundamental right of the people, secured since time immemorial in the Anglo-American tradition, to self-defense and autonomous self-governance, and does not merely assure citizens of the right to possess and use an inherently dangerous consumer product (as if bush knives, gasoline, rat poison, or even acetylene torches used commonly in welding shops were not equally capable of murder and mayhem in the hands of a person so inclined to use such products).   Research Paper Final on the Second Amendment.

              Heller (with regard to the Fifth Amendment limits on Federal power to deny an individual civil right to own guns) and McDonald (addressing state power to regulate individual gun ownership) spare no emphatic verbiage nor any lengths of explanation to emphasize that the individual right to own guns is a traditional and is fundamental to our Nation’s particular scheme of ordered liberty and system of justice.

           Every State and Legislature, as well as Congress and every Federal Court should consider Thomas’ words and the legislative history of “original intent” in detail—and should look at the functional equation of former slavery and former incarceration implicitly contained within the language of the 13th and 15th amendments, and repeal or otherwise invalidate the most heinously oppressive of all non-drug related laws:  the laws of life-time gun bans against “felons-in-possession” or worse yet, “persons committed of any sort of domestic violence, however mild, in possession.”

          I would like to see every person charged with a “Felon-in-Possession” or “Domestically Violent Person-in-Possession” simply to ask his or her Court to adopt and apply to California law, the words of Justice Clarence Thomas, who stated, at 130 S.Ct. 3059 that:

….the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment’s Privileges or Immunities Clause.

Here, separated from the remainder of the other Justices’ opinions, is Clarence Thomas’ brilliant concurrence in McDonald v. Chicago.  Every High School Student in North America should be required to read this—yes, even in Mexico—because during the Spanish Colonial Period the right to Keep and Bear Arms was restricted to the highest aristocracy, and Indians had apply for a special license to own guns of any kinds…. even for hunting which up through the 19th century was the surest means of acquiring meat anywhere in the Western Hemisphere….

Justice THOMAS, concurring in part and concurring in the judgment.

I agree with the Court that the Fourteenth Amendment makes the right to keep and bear arms set forth in the Second Amendment “fully applicable to the States.” Ante, at 3026. I write separately because I believe there is a more straightforward path to this conclusion, one that is *3059 more faithful to the Fourteenth Amendment’s text and history.

Applying what is now a well-settled test, the plurality opinion concludes that the right to keep and bear arms applies to the States through the Fourteenth Amendment’s Due Process Clause because it is “fundamental” to the American “scheme of ordered liberty,” ante, at 3036 (citing Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968)), and “ ‘deeply rooted in this Nation’s history and tradition,’ ” ante, at 3036 (quoting Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2302, 138 L.Ed.2d 772 (1997)). I agree with that description of the right. But I cannot agree that it is enforceable against the States through a clause that speaks only to “process.” Instead, the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment’s Privileges or Immunities Clause.


In District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), this Court held that the Second Amendment protects an individual right to keep and bear arms for the purpose of self-defense, striking down a District of Columbia ordinance that banned the possession of handguns in the home. Id., at ––––, 128 S.Ct., at 2821–2822. The question in this case is whether the Constitution protects that right against abridgment by the States.

As the Court explains, if this case were litigated before the Fourteenth Amendment’s adoption in 1868, the answer to that question would be simple. In Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 8 L.Ed. 672 (1833), this Court held that the Bill of Rights applied only to the Federal Government. Writing for the Court, Chief Justice Marshall recalled that the founding generation added the first eight Amendments to the Constitution in response to Antifederalist concerns regarding the extent of federal—not state—power, and held that if “the framers of these amendments [had] intended them to be limitations on the powers of the state governments,” “they would have declared this purpose in plain and intelligible language.” Id., at 250. Finding no such language in the Bill, Chief Justice Marshall held that it did not in any way restrict state authority. Id., at 248–250; see Lessee of Livingston v. Moore, 7 Pet. 469, 551–552, 8 L.Ed. 751 (1833) (reaffirming Barron ‘s holding); Permoli v. Municipality No. 1 of New Orleans, 3 How. 589, 609–610, 11 L.Ed. 739 (1845) (same).

Nearly three decades after Barron, the Nation was splintered by a civil war fought principally over the question of slavery. As was evident to many throughout our Nation’s early history, slavery, and the measures designed to protect it, were irreconcilable with the principles of equality, government by consent, and inalienable rights proclaimed by the Declaration of Independence and embedded in our constitutional structure. See, e.g., 3 Records of the Federal Convention of 1787, p. 212 (M. Farrand ed.1911) (remarks of Luther Martin) (“[S]lavery is inconsistent with the genius of republicanism, and has a tendency to destroy those principles on which it is supported, as it lessens the sense of the equal rights of mankind” (emphasis deleted)); A. Lincoln, Speech at Peoria, Ill. (Oct. 16, 1854), reprinted in 2 The Collected Works of Abraham Lincoln 266 (R. Basler ed. 1953) (“[N]o man is good enough to govern another man, without that other’s consent. I say this is the leading principle—the sheet anchor of American republicanism…. Now the relation *3060 of masters and slaves is, pro tanto, a total violation of this principle”).

After the war, a series of constitutional amendments were adopted to repair the Nation from the damage slavery had caused. The provision at issue here, § 1 of the Fourteenth Amendment, significantly altered our system of government. The first sentence of that section provides that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” This unambiguously overruled this Court’s contrary holding in Dred Scott v. Sandford, 19 How. 393, 15 L.Ed. 691 (1857), that the Constitution did not recognize black Americans as citizens of the United States or their own State. Id., at 405–406.

The meaning of § 1’s next sentence has divided this Court for many years. That sentence begins with the command that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” On its face, this appears to grant the persons just made United States citizens a certain collection of rights—i.e., privileges or immunities—attributable to that status.

This Court’s precedents accept that point, but define the relevant collection of rights quite narrowly. In the Slaughter–House Cases, 16 Wall. 36, 21 L.Ed. 394 (1873), decided just five years after the Fourteenth Amendment’s adoption, the Court interpreted this text, now known as the Privileges or Immunities Clause, for the first time. In a closely divided decision, the Court drew a sharp distinction between the privileges and immunities of state citizenship and those of federal citizenship, and held that the Privileges or Immunities Clause protected only the latter category of rights from state abridgment. Id., at 78. The Court defined that category to include only those rights “which owe their existence to the Federal government, its National character, its Constitution, or its laws.” Id., at 79. This arguably left open the possibility that certain individual rights enumerated in the Constitution could be considered privileges or immunities of federal citizenship. See ibid. (listing “[t]he right to peaceably assemble” and “the privilege of the writ of habeas corpus ” as rights potentially protected by the Privileges or Immunities Clause). But the Court soon rejected that proposition, interpreting the Privileges or Immunities Clause even more narrowly in its later cases.

Chief among those cases is United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1876). There, the Court held that members of a white militia who had brutally murdered as many as 165 black Louisianians congregating outside a courthouse had not deprived the victims of their privileges as American citizens to peaceably assemble or to keep and bear arms. Ibid.; see L. Keith, The Colfax Massacre 109 (2008). According to the Court, the right to peaceably assemble codified in the First Amendment was not a privilege of United States citizenship because “[t]he right … existed long before the adoption of the Constitution.” 92 U.S., at 551 (emphasis added). Similarly, the Court held that the right to keep and bear arms was not a privilege of United States citizenship because it was not “in any manner dependent upon that instrument for its existence.” Id., at 553. In other words, the reason the Framers codified the right to bear arms in the Second Amendment—its nature as an inalienable right that pre-existed the Constitution’s adoption—was the very reason citizens could not enforce it against States through the Fourteenth.

That circular reasoning effectively has been the Court’s last word on the Privileges *3061 or Immunities Clause.1 In the intervening years, the Court has held that the Clause prevents state abridgment of only a handful of rights, such as the right to travel, see Saenz v. Roe, 526 U.S. 489, 503, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999), that are not readily described as essential to liberty.

As a consequence of this Court’s marginalization of the Clause, litigants seeking federal protection of fundamental rights turned to the remainder of § 1 in search of an alternative fount of such rights. They found one in a most curious place—that section’s command that every State guarantee “due process” to any person before depriving him of “life, liberty, or property.” At first, litigants argued that this Due Process Clause “incorporated” certain procedural rights codified in the Bill of Rights against the States. The Court generally rejected those claims, however, on the theory that the rights in question were not sufficiently “fundamental” to warrant such treatment. See, e.g., Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884) (grand jury indictment requirement); Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 448, 44 L.Ed. 597 (1900) (12–person jury requirement); Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908) (privilege against self-incrimination).

That changed with time. The Court came to conclude that certain Bill of Rights guarantees were sufficiently fundamental to fall within § 1’s guarantee of “due process.” These included not only procedural protections listed in the first eight Amendments, see, e.g., Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) (protection against double jeopardy), but substantive rights as well, see, e.g., Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138 (1925) (right to free speech); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 707, 51 S.Ct. 625, 75 L.Ed. 1357 (1931) (same). In the process of incorporating these rights against the States, the Court often applied them differently against the States than against the Federal Government on the theory that only those “fundamental” aspects of the right required Due Process Clause protection. See, e.g., Betts v. Brady, 316 U.S. 455, 473, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942) (holding that the Sixth Amendment required the appointment of counsel in all federal criminal cases in which the defendant was unable to retain an attorney, but that the Due Process Clause required appointment of counsel in state criminal cases only where “want of counsel … result[ed] in a conviction lacking in … fundamental fairness”). In more recent years, this Court has “abandoned the notion” that the guarantees in the Bill of Rights apply differently when incorporated against the States than they do when applied to the Federal Government. Ante, at 3035 (opinion of the Court) (internal quotation marks omitted). But our cases continue to adhere to the view that a right is incorporated through the Due Process Clause only if it is sufficiently “fundamental,” ante, at 3046, 3048 – 3050 (plurality opinion)—a term the Court has long struggled to define.

While this Court has at times concluded that a right gains “fundamental” status only if it is essential to the American “scheme of ordered liberty” or “ ‘deeply rooted in this Nation’s history and tradition,’ *3062ante, at 3036 (plurality opinion) (quoting Glucksberg, 521 U.S., at 721, 117 S.Ct. 2302), the Court has just as often held that a right warrants Due Process Clause protection if it satisfies a far less measurable range of criteria, see Lawrence v. Texas, 539 U.S. 558, 562, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (concluding that the Due Process Clause protects “liberty of the person both in its spatial and in its more transcendent dimensions”). Using the latter approach, the Court has determined that the Due Process Clause applies rights against the States that are not mentioned in the Constitution at all, even without seriously arguing that the Clause was originally understood to protect such rights. See, e.g., Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Lawrence, supra.

All of this is a legal fiction. The notion that a constitutional provision that guarantees only “process” before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words. Moreover, this fiction is a particularly dangerous one. The one theme that links the Court’s substantive due process precedents together is their lack of a guiding principle to distinguish “fundamental” rights that warrant protection from nonfundamental rights that do not. Today’s decision illustrates the point. Replaying a debate that has endured from the inception of the Court’s substantive due process jurisprudence, the dissents laud the “flexibility” in this Court’s substantive due process doctrine, post, at 3096 (STEVENS, J., dissenting); see post, at 3122 – 3123 (BREYER, J., dissenting), while the plurality makes yet another effort to impose principled restraints on its exercise, see ante, at 3044 – 3048. But neither side argues that the meaning they attribute to the Due Process Clause was consistent with public understanding at the time of its ratification.

To be sure, the plurality’s effort to cabin the exercise of judicial discretion under the Due Process Clause by focusing its inquiry on those rights deeply rooted in American history and tradition invites less opportunity for abuse than the alternatives. See post, at 3123 (BREYER, J., dissenting) (arguing that rights should be incorporated against the States through the Due Process Clause if they are “well-suited to the carrying out of … constitutional promises”); post, at 3100 (STEVENS, J., dissenting) (warning that there is no “all-purpose, top-down, totalizing theory of ‘liberty’ ” protected by the Due Process Clause). But any serious argument over the scope of the Due Process Clause must acknowledge that neither its text nor its history suggests that it protects the many substantive rights this Court’s cases now claim it does.

I cannot accept a theory of constitutional interpretation that rests on such tenuous footing. This Court’s substantive due process framework fails to account for both the text of the Fourteenth Amendment and the history that led to its adoption, filling that gap with a jurisprudence devoid of a guiding principle. I believe the original meaning of the Fourteenth Amendment offers a superior alternative, and that a return to that meaning would allow this Court to enforce the rights the Fourteenth Amendment is designed to protect with greater clarity and predictability than the substantive due process framework has so far managed.

I acknowledge the volume of precedents that have been built upon the substantive due process framework, and I further acknowledge the importance of stare decisis to the stability of our Nation’s legal system. *3063 But stare decisis is only an “adjunct” of our duty as judges to decide by our best lights what the Constitution means. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 963, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (Rehnquist, C. J., concurring in judgment in part and dissenting in part). It is not “an inexorable command.” Lawrence, supra, at 577, 123 S.Ct. 2472. Moreover, as judges, we interpret the Constitution one case or controversy at a time. The question presented in this case is not whether our entire Fourteenth Amendment jurisprudence must be preserved or revised, but only whether, and to what extent, a particular clause in the Constitution protects the particular right at issue here. With the inquiry appropriately narrowed, I believe this case presents an opportunity to reexamine, and begin the process of restoring, the meaning of the Fourteenth Amendment agreed upon by those who ratified it.


“It cannot be presumed that any clause in the constitution is intended to be without effect.” Marbury v. Madison, 1 Cranch 137, 174, 2 L.Ed. 60 (1803) (Marshall, C. J.). Because the Court’s Privileges or Immunities Clause precedents have presumed just that, I set them aside for the moment and begin with the text.

The Privileges or Immunities Clause of the Fourteenth Amendment declares that “[n]o State … shall abridge the privileges or immunities of citizens of the United States.” In interpreting this language, it is important to recall that constitutional provisions are “ ‘written to be understood by the voters.’ ” Heller, 554 U.S., at ––––, 128 S.Ct., at 2788 (quoting United States v. Sprague, 282 U.S. 716, 731, 51 S.Ct. 220, 75 L.Ed. 640 (1931)). Thus, the objective of this inquiry is to discern what “ordinary citizens” at the time of ratification would have understood the Privileges or Immunities Clause to mean. 554 U.S., at ––––, 128 S.Ct., at 2788.



At the time of Reconstruction, the terms “privileges” and “immunities” had an established meaning as synonyms for “rights.” The two words, standing alone or paired together, were used interchangeably with the words “rights,” “liberties,” and “freedoms,” and had been since the time of Blackstone. See 1 W. Blackstone, Commentaries *129 (describing the “rights and liberties” of Englishmen as “private immunities” and “civil privileges”). A number of antebellum judicial decisions used the terms in this manner. See, e.g., Magill v. Brown, 16 F. Cas. 408, 428 (No. 8,952) (CC ED Pa. 1833) (Baldwin, J.) (“The words ‘privileges and immunities’ relate to the rights of persons, place or property; a privilege is a peculiar right, a private law, conceded to particular persons or places”). In addition, dictionary definitions confirm that the public shared this understanding. See, e.g., N. Webster, An American Dictionary of the English Language 1039 (C. Goodrich & N. Porter rev. 1865) (defining “privilege” as “a right or immunity not enjoyed by others or by all” and listing among its synonyms the words “immunity,” “franchise,” “right,” and “liberty”); id., at 661 (defining “immunity” as “[f]reedom from an obligation” or “particular privilege”); id., at 1140 (defining “right” as “[p]rivilege or immunity granted by authority”).2

The fact that a particular interest was designated as a “privilege” or “immunity,” *3064 rather than a “right,” “liberty,” or “freedom,” revealed little about its substance. Blackstone, for example, used the terms “privileges” and “immunities” to describe both the inalienable rights of individuals and the positive-law rights of corporations. See 1 Commentaries, at *129 (describing “private immunities” as a “residuum of natural liberty,” and “civil privileges” as those “which society has engaged to provide, in lieu of the natural liberties so given up by individuals” (footnote omitted)); id., at *468 (stating that a corporate charter enables a corporation to “establish rules and orders” that serve as “the privileges and immunities … of the corporation”). Writers in this country at the time of Reconstruction followed a similar practice. See, e.g., Racine & Mississippi R. Co. v. Farmers’ Loan & Trust Co., 49 Ill. 331, 334 (1868) (describing agreement between two railroad companies in which they agreed “ ‘to fully merge and consolidate the[ir] capital stock, powers, privileges, immunities and franchises’ ”); Hathorn v. Calef, 53 Me. 471, 483–484 (1866) (concluding that a statute did not “modify any power, privileges, or immunity, pertaining to the franchise of any corporation”). The nature of a privilege or immunity thus varied depending on the person, group, or entity to whom those rights were assigned. See Lash, The Origins of the Privileges or Immunities Clause, Part I: “Privileges and Immunities” as an Antebellum Term of Art, 98 Geo. L.J. 1241, 1256–1257 (2010) (surveying antebellum usages of these terms).


The group of rights-bearers to whom the Privileges or Immunities Clause applies is, of course, “citizens.” By the time of Reconstruction, it had long been established that both the States and the Federal Government existed to preserve their citizens’ inalienable rights, and that these rights were considered “privileges” or “immunities” of citizenship.

This tradition begins with our country’s English roots. Parliament declared the basic liberties of English citizens in a series of documents ranging from the Magna Carta to the Petition of Right and the English Bill of Rights. See 1 B. Schwartz, The Bill of Rights: A Documentary History 8–16, 19–21, 41–46 (1971) (hereinafter Schwartz). These fundamental rights, according to the English tradition, belonged to all people but became legally enforceable only when recognized in legal texts, including acts of Parliament and the decisions of common-law judges. See B. Bailyn, The Ideological Origins of the American Revolution 77–79 (1967). These rights included many that later would be set forth in our Federal Bill of Rights, such as the right to petition for redress of grievances, the right to a jury trial, and the right of “Protestants” to “have arms for their defence.” English Bill of Rights (1689), reprinted in 1 Schwartz 41, 43.

As English subjects, the colonists considered themselves to be vested with the same fundamental rights as other Englishmen. They consistently claimed the rights of English citizenship in their founding documents, repeatedly referring to these rights as “privileges” and “immunities.” For example, a Maryland law provided that

*3065 “[A]ll the Inhabitants of this Province being Christians (Slaves excepted) Shall have and enjoy all such rights liberties immunities priviledges and free customs within this Province as any natural born subject of England hath or ought to have or enjoy in the Realm of England….” Md. Act for the Liberties of the People (1639), in id., at 68 (emphasis added).3

As tensions between England and the Colonies increased, the colonists adopted protest resolutions reasserting their claim to the inalienable rights of Englishmen. Again, they used the terms “privileges” and “immunities” to describe these rights. As the Massachusetts Resolves declared:

Resolved, That there are certain essential Rights of the British Constitution of Government, which are founded in the Law of God and Nature, and are the common Rights of Mankind—Therefore…..

Resolved, That no Man can justly take the Property of another without his Consent: And that upon this original Principle the Right of Representation … is evidently founded…. Resolved, That this inherent Right, together with all other, essential Rights, Liberties, Privileges and Immunities of the People of Great Britain, have been fully confirmed to them by Magna Charta.” The Massachusetts Resolves (Oct. 29, 1765), reprinted in Prologue to Revolution: Sources and Documents on the Stamp Act Crisis, 1764–1766, p. 56 (E. Morgan ed.1959) (some emphasis added).4

*3066 In keeping with this practice, the First Continental Congress declared in 1774 that the King had wrongfully denied the colonists “the rights, liberties, and immunities of free and natural-born subjects … within the realm of England.” 1 Journals of the Continental Congress 1774–1789, p. 68 (1904). In an address delivered to the inhabitants of Quebec that same year, the Congress described those rights as including the “great” “right[s]” of “trial by jury,” “Habeas Corpus,” and “freedom of the press.” Address of the Continental Congress to the Inhabitants of Quebec (1774), reprinted in 1 Schwartz 221–223.

After declaring their independence, the newly formed States replaced their colonial charters with constitutions and state bills of rights, almost all of which guaranteed the same fundamental rights that the former colonists previously had claimed by virtue of their English heritage. See, e. g., Pa. Declaration of Rights (1776), reprinted in 5 Thorpe 3081–3084 (declaring that “all men are born equally free and independent, and have certain natural, inherent and inalienable rights,” including the “right to worship Almighty God according to the dictates of their own consciences” and the “right to bear arms for the defence of themselves and the state”).5

Several years later, the Founders amended the Constitution to expressly protect many of the same fundamental rights against interference by the Federal Government. Consistent with their English heritage, the founding generation generally did not consider many of the rights identified in these amendments as new entitlements, but as inalienable rights of all men, given legal effect by their codification in the Constitution’s text. See, e.g., 1 Annals of Cong. 431–432, 436–437, 440–442 (1834) (statement of Rep. Madison) (proposing Bill of Rights in the first Congress); The Federalist No. 84, pp. 531–533 (B. Wright ed. 1961) (A.Hamilton); see also Heller, 554 U.S., at ––––, 128 S.Ct., at 2797 (“[I]t has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right”). The Court’s subsequent decision in Barron, however, made plain that the codification of these rights in the Bill made them legally enforceable only against the Federal Government, not the States. See 7 Pet., at 247.


Even though the Bill of Rights did not apply to the States, other provisions of the Constitution did limit state interference with individual rights. Article IV, § 2, cl. 1 provides that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” The text of this provision resembles the Privileges or Immunities Clause, and it can be assumed that the public’s understanding of the latter was informed by its understanding of the former.

Article IV, § 2 was derived from a similar clause in the Articles of Confederation, and reflects the dual citizenship the Constitution provided to all Americans after replacing that “league” of separate sovereign States. Gibbons v. Ogden, 9 Wheat. 1, 187, 6 L.Ed. 23 (1824); see 3 J. Story, Commentaries on the Constitution of the United States § 1800, p. 675 (1833). By virtue of a person’s citizenship in a particular State, he was guaranteed whatever rights and liberties that State’s constitution *3067 and laws made available. Article IV, § 2 vested citizens of each State with an additional right: the assurance that they would be afforded the “privileges and immunities” of citizenship in any of the several States in the Union to which they might travel.

What were the “Privileges and Immunities of Citizens in the several States”? That question was answered perhaps most famously by Justice Bushrod Washington sitting as Circuit Justice in Corfield v. Coryell, 6 F. Cas. 546, 551–552 (No. 3,230) (CC ED Pa. 1825). In that case, a Pennsylvania citizen claimed that a New Jersey law prohibiting nonresidents from harvesting oysters from the State’s waters violated Article IV, § 2 because it deprived him, as an out-of-state citizen, of a right New Jersey availed to its own citizens. Id., at 550. Justice Washington rejected that argument, refusing to “accede to the proposition” that Article IV, § 2 entitled “citizens of the several states … to participate in all the rights which belong exclusively to the citizens of any other particular state.” Id., at 552 (emphasis added). In his view, Article IV, § 2 did not guarantee equal access to all public benefits a State might choose to make available to its citizens. See id., at 552. Instead, it applied only to those rights “which are, in their nature, fundamental ; which belong, of right, to the citizens of all free governments.” Id., at 551 (emphasis added). Other courts generally agreed with this principle. See, e.g., Abbot v. Bayley, 23 Mass. 89, 92–93 (1827) (noting that the “privileges and immunities” of citizens in the several States protected by Article IV, § 2 are “qualified and not absolute” because they do not grant a traveling citizen the right of “suffrage or of eligibility to office” in the State to which he travels).

When describing those “fundamental” rights, Justice Washington thought it “would perhaps be more tedious than difficult to enumerate” them all, but suggested that they could “be all comprehended under” a broad list of “general heads,” such as “[p]rotection by the government,” “the enjoyment of life and liberty, with the right to acquire and possess property of every kind,” “the benefit of the writ of habeas corpus,” and the right of access to “the courts of the state,” among others.6 Corfield, supra, at 551–552.

Notably, Justice Washington did not indicate whether Article IV, § 2 required States to recognize these fundamental rights in their own citizens and thus in sojourning citizens alike, or whether the Clause simply prohibited the States from discriminating against sojourning citizens with respect to whatever fundamental rights state law happened to recognize. On this question, the weight of legal authorities at the time of Reconstruction indicated *3068 that Article IV, § 2 prohibited States from discriminating against sojourning citizens when recognizing fundamental rights, but did not require States to recognize those rights and did not prescribe their content. The highest courts of several States adopted this view, see, e.g., Livingston v. Van Ingen, 9 Johns. 507, 561 (N.Y.Sup.Ct.1812) (Yates, J.); id., at 577 (Kent, J.); Campbell v. Morris, 3 H. & McH. 535, 553–554 (Md.Gen.Ct.1797) (Chase, J.), as did several influential treatise-writers, see T. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the State of the American Union 15–16, and n. 3 (1868) (reprint 1972) (describing Article IV, § 2 as designed “to prevent discrimination by the several States against the citizens and public proceedings of other States”); 2 J. Kent, Commentaries on American Law 35 (11th ed. 1867) (stating that Article IV, § 2 entitles sojourning citizens “to the privileges that persons of the same description are entitled to in the state to which the removal is made, and to none other”). This Court adopted the same conclusion in a unanimous opinion just one year after the Fourteenth Amendment was ratified. See Paul v. Virginia, 8 Wall. 168, 180, 19 L.Ed. 357 (1869).

The text examined so far demonstrates three points about the meaning of the Privileges or Immunities Clause in § 1. First, “privileges” and “immunities” were synonyms for “rights.” Second, both the States and the Federal Government had long recognized the inalienable rights of their citizens. Third, Article IV, § 2 of the Constitution protected traveling citizens against state discrimination with respect to the fundamental rights of state citizenship.

Two questions still remain, both provoked by the textual similarity between § 1’s Privileges or Immunities Clause and Article IV, § 2. The first involves the nature of the rights at stake: Are the privileges or immunities of “citizens of the United States” recognized by § 1 the same as the privileges and immunities of “citizens in the several States” to which Article IV, § 2 refers? The second involves the restriction imposed on the States: Does § 1, like Article IV, § 2, prohibit only discrimination with respect to certain rights if the State chooses to recognize them, or does it require States to recognize those rights? I address each question in turn.


I start with the nature of the rights that § 1’s Privileges or Immunities Clause protects. Section 1 overruled Dred Scott ‘s holding that blacks were not citizens of either the United States or their own State and, thus, did not enjoy “the privileges and immunities of citizens” embodied in the Constitution. 19 How., at 417. The Court in Dred Scott did not distinguish between privileges and immunities of citizens of the United States and citizens in the several States, instead referring to the rights of citizens generally. It did, however, give examples of what the rights of citizens were—the constitutionally enumerated rights of “the full liberty of speech” and the right “to keep and carry arms.” Ibid.

Section 1 protects the rights of citizens “of the United States” specifically. The evidence overwhelmingly demonstrates that the privileges and immunities of such citizens included individual rights enumerated in the Constitution, including the right to keep and bear arms.


Nineteenth-century treaties through which the United States acquired territory from other sovereigns routinely promised inhabitants of the newly acquired territories *3069 that they would enjoy all of the “rights,” “privileges,” and “immunities” of United States citizens. See, e.g., Treaty of Amity, Settlement, and Limits, Art. 6, Feb. 22, 1819, 8 Stat. 256–258, T.S. No. 327 (entered into force Feb. 19, 1821) (cession of Florida) (“The inhabitants of the territories which his Catholic Majesty cedes to the United States, by this Treaty, shall be incorporated in the Union of the United States, as soon as may be consistent with the principles of the Federal Constitution, and admitted to the enjoyment of all the privileges, rights, and immunities, of the citizens of the United States ” (emphasis added)).7

Commentators of the time explained that the rights and immunities of “citizens of the United States” recognized in these treaties “undoubtedly mean[t] those privileges that are common to all citizens of this republic.” Marcus, An Examination of the Expediency and Constitutionality of Prohibiting Slavery in the State of Missouri 17 (1819). It is therefore altogether unsurprising that several of these treaties identify liberties enumerated in the Constitution as privileges and immunities common to all United States citizens.

For example, the Louisiana Cession Act of 1803, which codified a treaty between the United States and France culminating in the Louisiana Purchase, provided that

“The inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal constitution, to the enjoyments of all the rights, advantages and immunities of citizens of the United States; and in the mean time they shall be maintained and protected in the free enjoyment of their liberty, property and the religion which they profess.” Treaty Between the United States of America and the French Republic, Art. III, Apr. 30, 1803, 8 Stat. 202, T.S. No. 86 (emphasis added).8

*3070 The Louisiana Cession Act reveals even more about the privileges and immunities of United States citizenship because it provoked an extensive public debate on the meaning of that term. In 1820, when the Missouri Territory (which the United States acquired through the Cession Act) sought to enter the Union as a new State, a debate ensued over whether to prohibit slavery within Missouri as a condition of its admission. Some congressmen argued that prohibiting slavery in Missouri would deprive its inhabitants of the “privileges and immunities” they had been promised by the Cession Act. See, e.g., 35 Annals of Cong. 1083 (1855) (remarks of Kentucky Rep. Hardin). But those who opposed slavery in Missouri argued that the right to hold slaves was merely a matter of state property law, not one of the privileges and immunities of United States citizenship guaranteed by the Act.9

Daniel Webster was among the leading proponents of the antislavery position. In his “Memorial to Congress,” Webster argued that “[t]he rights, advantages and immunities here spoken of [in the Cession Act] must … be such as are recognized or communicated by the Constitution of the United States,” not the “rights, advantages and immunities, derived exclusively from the State governments….” D. Webster, A Memorial to the Congress of the United States on the Subject of Restraining the Increase of Slavery in New States to be Admitted into the Union 15 (Dec. 15, 1819) (emphasis added). “The obvious meaning” of the Act, in Webster’s view, was that “the rights derived under the federal Constitution shall be enjoyed by the inhabitants of [the territory].” Id., at 15–16 (emphasis added). In other words, Webster articulated a distinction between the rights of United States citizenship and the rights of state citizenship, and argued that the former included those rights “recognized or communicated by the Constitution.” Since the right to hold slaves was not mentioned in the Constitution, it was not a right of federal citizenship.

Webster and his allies ultimately lost the debate over slavery in Missouri and the territory was admitted as a slave State as part of the now-famous Missouri Compromise. Missouri Enabling Act of March 6, 1820, ch. 22, § 8, 3 Stat. 548. But their arguments continued to inform public understanding of the privileges and immunities of United States citizenship. In 1854, Webster’s Memorial was republished in a pamphlet discussing the Nation’s next major debate on slavery—the proposed repeal of the Missouri Compromise through the Kansas–Nebraska Act, see The Nebraska Question: Comprising Speeches in the United States Senate: Together with the History of the Missouri Compromise 9–12 (1854). It was published again in 1857 in a collection of famous American speeches. See The Political Text–Book, or Encyclopedia: Containing Everything Necessary for the Reference of the Politicians and Statesmen of the United States 601–604 (M. Cluskey ed. 1857); see also Lash, 98 Geo. L. J., at 1294–1296 (describing Webster’s arguments and their influence).

*3071 2

Evidence from the political branches in the years leading to the Fourteenth Amendment’s adoption demonstrates broad public understanding that the privileges and immunities of United States citizenship included rights set forth in the Constitution, just as Webster and his allies had argued. In 1868, President Andrew Johnson issued a proclamation granting amnesty to former Confederates, guaranteeing “to all and to every person who directly or indirectly participated in the late insurrection or rebellion, a full pardon and amnesty for the offence of treason … with restoration of all rights, privileges, and immunities under the Constitution and the laws which have been made in pursuance thereof.” 15 Stat. 712.

Records from the 39th Congress further support this understanding.


After the Civil War, Congress established the Joint Committee on Reconstruction to investigate circumstances in the Southern States and to determine whether, and on what conditions, those States should be readmitted to the Union. See Cong. Globe, 39th Cong., 1st Sess., 6, 30 (1865) (hereinafter 39th Cong. Globe); M. Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights 57 (1986) (hereinafter Curtis). That Committee would ultimately recommend the adoption of the Fourteenth Amendment, justifying its recommendation by submitting a report to Congress that extensively catalogued the abuses of civil rights in the former slave States and argued that “adequate security for future peace and safety … can only be found in such changes of the organic law as shall determine the civil rights and privileges of all citizens in all parts of the republic.” See Report of the Joint Committee on Reconstruction, S.Rep. No. 112, 39th Cong., 1st Sess., p. 15 (1866); H. R. Rep. No. 30, 39th Cong., 1st Sess., p. XXI (1866).

As the Court notes, the Committee’s Report “was widely reprinted in the press and distributed by members of the 39th Congress to their constituents.” Ante, at 3039; B. Kendrick, Journal of the Joint Committee of Fifteen on Reconstruction 264–265 (1914) (noting that 150,000 copies of the Report were printed and that it was widely distributed as a campaign document in the election of 1866). In addition, newspaper coverage suggests that the wider public was aware of the Committee’s work even before the Report was issued. For example, the Fort Wayne Daily Democrat (which appears to have been unsupportive of the Committee’s work) paraphrased a motion instructing the Committee to

“enquire into [the] expediency of amending the Constitution of the United States so as to declare with greater certainty the power of Congress to enforce and determine by appropriate legislation all the guarantees contained in that instrument.” The Nigger Congress!, Fort Wayne Daily Democrat, Feb. 1, 1866, p. 4 (emphasis added).


Statements made by Members of Congress leading up to, and during, the debates on the Fourteenth Amendment point in the same direction. The record of these debates has been combed before. See Adamson v. California, 332 U.S. 46, 92–110, 67 S.Ct. 1672, 91 L.Ed. 1903 (1947) (Appendix to dissenting opinion of Black, J.) (concluding that the debates support the conclusion that § 1 was understood to incorporate the Bill of Rights against the States); ante, at 3033, n. 9, 3040, n. 23, (opinion of the Court) (counting the debates among other evidence that § 1 applies the Second Amendment against the States). Before considering that record *3072 here, it is important to clarify its relevance. When interpreting constitutional text, the goal is to discern the most likely public understanding of a particular provision at the time it was adopted. Statements by legislators can assist in this process to the extent they demonstrate the manner in which the public used or understood a particular word or phrase. They can further assist to the extent there is evidence that these statements were disseminated to the public. In other words, this evidence is useful not because it demonstrates what the draftsmen of the text may have been thinking, but only insofar as it illuminates what the public understood the words chosen by the draftsmen to mean.


Three speeches stand out as particularly significant. Representative John Bingham, the principal draftsman of § 1, delivered a speech on the floor of the House in February 1866 introducing his first draft of the provision. Bingham began by discussing Barron and its holding that the Bill of Rights did not apply to the States. He then argued that a constitutional amendment was necessary to provide “an express grant of power in Congress to enforce by penal enactment these great canons of the supreme law, securing to all the citizens in every State all the privileges and immunities of citizens, and to all the people all the sacred rights of person.” 39th Cong. Globe 1089–1090 (1866). Bingham emphasized that § 1 was designed “to arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the bill of rights as it stands in the Constitution today. It ‘hath that extent—no more.’ ” Id., at 1088.

Bingham’s speech was printed in pamphlet form and broadly distributed in 1866 under the title, “One Country, One Constitution, and One People,” and the subtitle, “In Support of the Proposed Amendment to Enforce the Bill of Rights.”10 Newspapers also reported his proposal, with the New York Times providing particularly extensive coverage, including a full reproduction of Bingham’s first draft of § 1 and his remarks that a constitutional amendment to “enforc[e]” the “immortal bill of rights” was “absolutely essential to American nationality.” N.Y. Times, Feb. 27, 1866, p. 8.

Bingham’s first draft of § 1 was different from the version ultimately adopted. Of particular importance, the first draft granted Congress the “power to make all laws … necessary and proper to secure” the “citizens of each State all privileges and immunities of citizens in the several States,” rather than restricting state power to “abridge” the privileges or immunities of citizens of the United States.11 39th Cong. Globe 1088.

That draft was met with objections, which the Times covered extensively. A *3073 front-page article hailed the “Clear and Forcible Speech” by Representative Robert Hale against the draft, explaining—and endorsing—Hale’s view that Bingham’s proposal would “confer upon Congress all the rights and power of legislation now reserved to the States” and would “in effect utterly obliterate State rights and State authority over their own internal affairs.”12 N.Y. Times, Feb. 28, 1866, p. 1.

Critically, Hale did not object to the draft insofar as it purported to protect constitutional liberties against state interference. Indeed, Hale stated that he believed (incorrectly in light of Barron ) that individual rights enumerated in the Constitution were already enforceable against the States. See 39th Cong. Globe 1064 (“I have, somehow or other, gone along with the impression that there is that sort of protection thrown over us in some way, whether with or without the sanction of a judicial decision that we are so protected”); see N.Y. Times, Feb. 28, 1866, at 1. Hale’s misperception was not uncommon among members of the Reconstruction generation. See infra, at 3047 – 3048. But that is secondary to the point that the Times’ coverage of this debate over § 1’s meaning suggests public awareness of its main contours—i.e., that § 1 would, at a minimum, enforce constitutionally enumerated rights of United States citizens against the States.

Bingham’s draft was tabled for several months. In the interim, he delivered a second well-publicized speech, again arguing that a constitutional amendment was required to give Congress the power to enforce the Bill of Rights against the States. That speech was printed in pamphlet form, see Speech of Hon. John A. Bingham, of Ohio, on the Civil Rights Bill, Mar. 9, 1866 (Cong.Globe); see 39th Cong. Globe 1837 (remarks of Rep. Lawrence) (noting that the speech was “extensively published”), and the New York Times covered the speech on its front page. Thirty–Ninth Congress, N.Y. Times, Mar. 10, 1866, p. 1.

By the time the debates on the Fourteenth Amendment resumed, Bingham had amended his draft of § 1 to include the text of the Privileges or Immunities Clause that was ultimately adopted. Senator Jacob Howard introduced the new draft on the floor of the Senate in the third speech relevant here. Howard explained that the Constitution recognized “a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, … some by the first eight amendments of the Constitution,” and that “there is no power given in the Constitution to enforce and to carry out any of these guarantees” against the States. 39th Cong. Globe 2765. Howard then stated that “the great object” of § 1 was to “restrain the power of the States and compel them at all times to respect these great fundamental guarantees.” Id., at 2766. Section 1, he indicated, imposed “a general prohibition upon all the States, as such, from abridging the privileges and immunities of the citizens of the United States.” Id., at 2765.

In describing these rights, Howard explained that they included “the privileges *3074 and immunities spoken of” in Article IV, § 2. Id., at 2765. Although he did not catalogue the precise “nature” or “extent” of those rights, he thought “Corfield v. Coryell” provided a useful description. Howard then submitted that

“[t]o these privileges and immunities, whatever they may be—… should be added the personal rights guarantied and secured by the first eight amendments of the Constitution ; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, [and] … the right to keep and to bear arms.” Ibid. (emphasis added).

News of Howard’s speech was carried in major newspapers across the country, including the New York Herald, see N.Y. Herald, May 24, 1866, p. 1, which was the best-selling paper in the Nation at that time, see A. Amar, The Bill of Rights: Creation and Reconstruction 187 (1998) (hereinafter Amar).13 The New York Times carried the speech as well, reprinting a lengthy excerpt of Howard’s remarks, including the statements quoted above. N.Y. Times, May 24, 1866, p. 1. The following day’s Times editorialized on Howard’s speech, predicting that “[t]o this, the first section of the amendment, the Union party throughout the country will yield a ready acquiescence, and the South could offer no justifiable resistance,” suggesting that Bingham’s narrower second draft had not been met with the same objections that Hale had raised against the first. N.Y. Times, May 25, 1866, p. 4.

As a whole, these well-circulated speeches indicate that § 1 was understood to enforce constitutionally declared rights against the States, and they provide no suggestion that any language in the section other than the Privileges or Immunities Clause would accomplish that task.


When read against this backdrop, the civil rights legislation adopted by the 39th Congress in 1866 further supports this view. Between passing the Thirteenth Amendment—which outlawed slavery alone—and the Fourteenth Amendment, Congress passed two significant pieces of legislation. The first was the Civil Rights Act of 1866, which provided that “all persons born in the United States” were “citizens of the United States” and that “such citizens, of every race and color, … shall have the same right” to, among other things, “full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.” Ch. 31, § 1, 14 Stat. 27.

Both proponents and opponents of this Act described it as providing the “privileges” of citizenship to freedmen, and defined those privileges to include constitutional rights, such as the right to keep and bear arms. See 39th Cong. Globe 474 (remarks of Sen. Trumbull) (stating that the “the late slaveholding States” had enacted laws “depriving persons of African descent of privileges which are essential to freemen,” including “prohibit[ing] any negro or mulatto from having fire-arms” and stating that “[t]he purpose of the bill under consideration is to destroy all these discriminations”); id., at 1266–1267 (remarks *3075 of Rep. Raymond) (opposing the Act, but recognizing that to “[m]ake a colored man a citizen of the United States” would guarantee to him, inter alia, “a defined status … a right to defend himself and his wife and children; a right to bear arms”).

Three months later, Congress passed the Freedmen’s Bureau Act, which also entitled all citizens to the “full and equal benefit of all laws and proceedings concerning personal liberty” and “personal security.” Act of July 16, 1866, ch. 200, § 14, 14 Stat. 176. The Act stated expressly that the rights of personal liberty and security protected by the Act “includ[ed] the constitutional right to bear arms.” Ibid.


There is much else in the legislative record. Many statements by Members of Congress corroborate the view that the Privileges or Immunities Clause enforced constitutionally enumerated rights against the States. See Curtis 112 (collecting examples). I am not aware of any statement that directly refutes that proposition. That said, the record of the debates—like most legislative history—is less than crystal clear. In particular, much ambiguity derives from the fact that at least several Members described § 1 as protecting the privileges and immunities of citizens “in the several States,” harkening back to Article IV, § 2. See supra, at 3041 (describing Sen. Howard’s speech). These statements can be read to support the view that the Privileges or Immunities Clause protects some or all the fundamental rights of “citizens” described in Corfield. They can also be read to support the view that the Privileges or Immunities Clause, like Article IV, § 2, prohibits only state discrimination with respect to those rights it covers, but does not deprive States of the power to deny those rights to all citizens equally.

I examine the rest of the historical record with this understanding. But for purposes of discerning what the public most likely thought the Privileges or Immunities Clause to mean, it is significant that the most widely publicized statements by the legislators who voted on § 1—Bingham, Howard, and even Hale—point unambiguously toward the conclusion that the Privileges or Immunities Clause enforces at least those fundamental rights enumerated in the Constitution against the States, including the Second Amendment right to keep and bear arms.


Interpretations of the Fourteenth Amendment in the period immediately following its ratification help to establish the public understanding of the text at the time of its adoption.

Some of these interpretations come from Members of Congress. During an 1871 debate on a bill to enforce the Fourteenth Amendment, Representative Henry Dawes listed the Constitution’s first eight Amendments, including “the right to keep and bear arms,” before explaining that after the Civil War, the country “gave the most grand of all these rights, privileges, and immunities, by one single amendment to the Constitution, to four millions of American citizens” who formerly were slaves. Cong. Globe, 42d Cong., 1st Sess., 475–476 (1871). “It is all these,” Dawes explained, “which are comprehended in the words ‘American citizen.’ ” Ibid.; see also id., at 334 (remarks of Rep. Hoar) (stating that the Privileges or Immunities Clause referred to those rights “declared to belong to the citizen by the Constitution itself”). Even opponents of Fourteenth Amendment enforcement legislation acknowledged that the Privileges or Immunities *3076 Clause protected constitutionally enumerated individual rights. See 2 Cong. Rec. 384–385 (1874) (remarks of Rep. Mills) (opposing enforcement law, but acknowledging, in referring to the Bill of Rights, that “[t]hese first amendments and some provisions of the Constitution of like import embrace the ‘privileges and immunities’ of citizenship as set forth in article 4, section 2 of the Constitution and in the fourteenth amendment ” (emphasis added)); see Curtis 166–170 (collecting examples).

Legislation passed in furtherance of the Fourteenth Amendment demonstrates even more clearly this understanding. For example, Congress enacted the Civil Rights Act of 1871, 17 Stat. 13, which was titled in pertinent part “An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States,” and which is codified in the still-existing 42 U.S.C. § 1983. That statute prohibits state officials from depriving citizens of “any rights, privileges, or immunities secured by the Constitution.” Rev. Stat.1979, 42 U.S.C. § 1983 (emphasis added). Although the Judiciary ignored this provision for decades after its enactment, this Court has come to interpret the statute, unremarkably in light of its text, as protecting constitutionally enumerated rights. Monroe v. Pape, 365 U.S. 167, 171, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).

A Federal Court of Appeals decision written by a future Justice of this Court adopted the same understanding of the Privileges or Immunities Clause. See, e.g., United States v. Hall, 26 F. Cas. 79, 82 (No. 15,282) (CC SD Ala. 1871) (Woods, J.) (“We think, therefore, that the … rights enumerated in the first eight articles of amendment to the constitution of the United States, are the privileges and immunities of citizens of the United States”). In addition, two of the era’s major constitutional treatises reflected the understanding that § 1 would protect constitutionally enumerated rights from state abridgment.14 A third such treatise unambiguously indicates that the Privileges or Immunities Clause accomplished this task. G. Paschal, The Constitution of the United States 290 (1868) (explaining that the rights listed in § 1 had “already been guarantied” by Article IV and the Bill of Rights, but that “[t]he new feature declared” by § 1 was that these rights, “which had been construed to apply only to the national government, are thus imposed upon the States”).

Another example of public understanding comes from United States Attorney Daniel Corbin’s statement in an 1871 Ku Klux Klan prosecution. Corbin cited Barron and declared:

“[T]he fourteenth amendment changes all that theory, and lays the same restriction upon the States that before lay upon the Congress of the United States—that, as Congress heretofore could not interfere with the right of the citizen to keep and bear arms, now, after the adoption of the fourteenth amendment, the State cannot interfere with the right of the citizen to keep and bear arms. The right to keep and bear arms is included in the fourteenth amendment, *3077 under ‘privileges and immunities.’ ” Proceedings in the Ku Klux Trials at Columbia, S. C., in the United States Circuit Court, November Term, 1871, p. 147 (1872).

This evidence plainly shows that the ratifying public understood the Privileges or Immunities Clause to protect constitutionally enumerated rights, including the right to keep and bear arms. As the Court demonstrates, there can be no doubt that § 1 was understood to enforce the Second Amendment against the States. See ante, at 3038 – 3044. In my view, this is because the right to keep and bear arms was understood to be a privilege of American citizenship guaranteed by the Privileges or Immunities Clause.


The next question is whether the Privileges or Immunities Clause merely prohibits States from discriminating among citizens if they recognize the Second Amendment’s right to keep and bear arms, or whether the Clause requires States to recognize the right. The municipal respondents, Chicago and Oak Park, argue for the former interpretation. They contend that the Second Amendment, as applied to the States through the Fourteenth, authorizes a State to impose an outright ban on handgun possession such as the ones at issue here so long as a State applies it to all citizens equally.15 The Court explains why this antidiscrimination-only reading of § 1 as a whole is “implausible.” Ante, at 3042 – 3043 (citing Brief for Municipal Respondents 64). I agree, but because I think it is the Privileges or Immunities Clause that applies this right to the States, I must explain why this Clause in particular protects against more than just state discrimination, and in fact establishes a minimum baseline of rights for all American citizens.


I begin, again, with the text. The Privileges or Immunities Clause opens with the command that “No State shall ” abridge the privileges or immunities of citizens of the United States. Amdt. 14, § 1 (emphasis added). The very same phrase opens Article I, § 10 of the Constitution, which prohibits the States from “pass[ing] any Bill of Attainder” or “ex post facto Law,” among other things. Article I, § 10 is one of the few constitutional provisions that limits state authority. In Barron, when Chief Justice Marshall interpreted the Bill of Rights as lacking “plain and intelligible language” restricting state power to infringe upon individual liberties, he pointed to Article I, § 10 as an example of text that would have accomplished that task. 7 Pet., at 250. Indeed, Chief Justice Marshall would later describe Article I, § 10 as “a bill of rights for the people of each state.” Fletcher v. Peck, 6 Cranch 87, 138, 3 L.Ed. 162 (1810). Thus, the fact that the Privileges or Immunities Clause uses the command “[n]o State shall”—which *3078 Article IV, § 2 does not—strongly suggests that the former imposes a greater restriction on state power than the latter.

This interpretation is strengthened when one considers that the Privileges or Immunities Clause uses the verb “abridge,” rather than “discriminate,” to describe the limit it imposes on state authority. The Webster’s dictionary in use at the time of Reconstruction defines the word “abridge” to mean “[t]o deprive; to cut off; … as, to abridge one of his rights.” Webster, An American Dictionary of the English Language, at 6. The Clause is thus best understood to impose a limitation on state power to infringe upon pre-existing substantive rights. It raises no indication that the Framers of the Clause used the word “abridge” to prohibit only discrimination.

This most natural textual reading is underscored by a well-publicized revision to the Fourteenth Amendment that the Reconstruction Congress rejected. After several Southern States refused to ratify the Amendment, President Johnson met with their Governors to draft a compromise. N.Y. Times, Feb. 5, 1867, p. 5. Their proposal eliminated Congress’ power to enforce the Amendment (granted in § 5), and replaced the Privileges or Immunities Clause in § 1 with the following:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the States in which they reside, and the Citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.” Draft reprinted in 1 Documentary History of Reconstruction 240 (W. Fleming ed.1950) (hereinafter Fleming).

Significantly, this proposal removed the “[n]o State shall” directive and the verb “abridge” from § 1, and also changed the class of rights to be protected from those belonging to “citizens of the United States” to those of the “citizens in the several States.” This phrasing is materially indistinguishable from Article IV, § 2, which generally was understood as an antidiscrimination provision alone. See supra, at 3066 – 3068. The proposal thus strongly indicates that at least the President of the United States and several southern Governors thought that the Privileges or Immunities Clause, which they unsuccessfully tried to revise, prohibited more than just state-sponsored discrimination.


The argument that the Privileges or Immunities Clause prohibits no more than discrimination often is followed by a claim that public discussion of the Clause, and of § 1 generally, was not extensive. Because of this, the argument goes, § 1 must not have been understood to accomplish such a significant task as subjecting States to federal enforcement of a minimum baseline of rights. That argument overlooks critical aspects of the Nation’s history that underscored the need for, and wide agreement upon, federal enforcement of constitutionally enumerated rights against the States, including the right to keep and bear arms.


I turn first to public debate at the time of ratification. It is true that the congressional debates over § 1 were relatively brief. It is also true that there is little evidence of extensive debate in the States. Many state legislatures did not keep records of their debates, and the few records that do exist reveal only modest discussion. See Curtis 145. These facts are not surprising.

First, however consequential we consider the question today, the nationalization of constitutional rights was not the most *3079 controversial aspect of the Fourteenth Amendment at the time of its ratification. The Nation had just endured a tumultuous civil war, and §§ 2, 3, and 4—which reduced the representation of States that denied voting rights to blacks, deprived most former Confederate officers of the power to hold elective office, and required States to disavow Confederate war debts—were far more polarizing and consumed far more political attention. See Wildenthal 1600; Hardy, Original Popular Understanding of the Fourteenth Amendment as Reflected in the Print Media of 1866–1868, 30 Whittier L.Rev. 695, 699 (2009).

Second, the congressional debates on the Fourteenth Amendment reveal that many representatives, and probably many citizens, believed that the Thirteenth Amendment, the 1866 Civil Rights legislation, or some combination of the two, had already enforced constitutional rights against the States. Justice Black’s dissent in Adamson chronicles this point in detail. 332 U.S., at 107–108, 67 S.Ct. 1672 (Appendix to dissenting opinion). Regardless of whether that understanding was accurate as a matter of constitutional law, it helps to explain why Congressmen had little to say during the debates about § 1. See ibid.

Third, while Barron made plain that the Bill of Rights was not legally enforceable against the States, see supra, at 3059, the significance of that holding should not be overstated. Like the Framers, see supra, at 3066, many 19th-century Americans understood the Bill of Rights to declare inalienable rights that pre-existed all government. Thus, even though the Bill of Rights technically applied only to the Federal Government, many believed that it declared rights that no legitimate government could abridge.

Chief Justice Henry Lumpkin’s decision for the Georgia Supreme Court in Nunn v. State, 1 Ga. 243 (1846), illustrates this view. In assessing state power to regulate firearm possession, Lumpkin wrote that he was “aware that it has been decided, that [the Second Amendment], like other amendments adopted at the same time, is a restriction upon the government of the United States, and does not extend to the individual States.” Id., at 250. But he still considered the right to keep and bear arms as “an unalienable right, which lies at the bottom of every free government, and thus found the States bound to honor it. Ibid. Other state courts adopted similar positions with respect to the right to keep and bear arms and other enumerated rights.16 Some courts even suggested that the protections in the Bill of Rights were legally enforceable against the States, Barron notwithstanding.17 A prominent treatise of the era took the same position. W. Rawle, A View of the Constitution of the United States of America 124–125 (2d ed. 1829) (reprint 2009) (arguing that certain of the first eight Amendments “appl[y] to the state legislatures” because those Amendments “form parts of the declared rights of the people, of which neither the state powers nor those of the Union can ever deprive them”); id., at 125–126 (describing the Second Amendment “right of the people to keep and bear arms” as “a restraint on both” Congress and the States); see also *3080 Heller, 554 U.S., at ––––, 128 S.Ct., at 2805–2806 (describing Rawle’s treatise as “influential”). Certain abolitionist leaders adhered to this view as well. Lysander Spooner championed the popular abolitionist argument that slavery was inconsistent with constitutional principles, citing as evidence the fact that it deprived black Americans of the “natural right of all men ‘to keep and bear arms’ for their personal defence,” which he believed the Constitution “prohibit[ed] both Congress and the State governments from infringing.” L. Spooner, The Unconstitutionality of Slavery 98 (1860).

In sum, some appear to have believed that the Bill of Rights did apply to the States, even though this Court had squarely rejected that theory. See, e.g., supra, at 3072 – 3073 (recounting Rep. Hale’s argument to this effect). Many others believed that the liberties codified in the Bill of Rights were ones that no State should abridge, even though they understood that the Bill technically did not apply to States. These beliefs, combined with the fact that most state constitutions recognized many, if not all, of the individual rights enumerated in the Bill of Rights, made the need for federal enforcement of constitutional liberties against the States an afterthought. See ante, at –––– (opinion of the Court) (noting that, “[i]n 1868, 22 of the 37 States in the Union had state constitutional provisions explicitly protecting the right to keep and bear arms”). That changed with the national conflict over slavery.


In the contentious years leading up to the Civil War, those who sought to retain the institution of slavery found that to do so, it was necessary to eliminate more and more of the basic liberties of slaves, free blacks, and white abolitionists. Congressman Tobias Plants explained that slaveholders “could not hold [slaves] safely where dissent was permitted,” so they decided that “all dissent must be suppressed by the strong hand of power.” 39th Cong. Globe 1013. The measures they used were ruthless, repressed virtually every right recognized in the Constitution, and demonstrated that preventing only discriminatory state firearms restrictions would have been a hollow assurance for liberty. Public reaction indicates that the American people understood this point.

The overarching goal of pro-slavery forces was to repress the spread of abolitionist thought and the concomitant risk of a slave rebellion. Indeed, it is difficult to overstate the extent to which fear of a slave uprising gripped slaveholders and dictated the acts of Southern legislatures. Slaves and free blacks represented a substantial percentage of the population and posed a severe threat to Southern order if they were not kept in their place. According to the 1860 Census, slaves represented one quarter or more of the population in 11 of the 15 slave States, nearly half the population in Alabama, Florida, Georgia, and Louisiana, and more than 50% of the population in Mississippi and South Carolina. Statistics of the United States (Including Mortality, Property, &c.,) in 1860, The Eighth Census 336–350 (1866).

The Southern fear of slave rebellion was not unfounded. Although there were others, two particularly notable slave uprisings heavily influenced slaveholders in the South. In 1822, a group of free blacks and slaves led by Denmark Vesey planned a rebellion in which they would slay their masters and flee to Haiti. H. Aptheker, American Negro Slave Revolts 268–270 (1983). The plan was foiled, leading to the swift arrest of 130 blacks, and the execution of 37, including Vesey. Id., at 271. Still, slaveowners took notice—it was reportedly feared that as many as 6,600 to 9,000 slaves and free blacks were involved in the plot. Id., at 272. A few years later, *3081 the fear of rebellion was realized. An uprising led by Nat Turner took the lives of at least 57 whites before it was suppressed. Id., at 300–302.

The fear generated by these and other rebellions led Southern legislatures to take particularly vicious aim at the rights of free blacks and slaves to speak or to keep and bear arms for their defense. Teaching slaves to read (even the Bible) was a criminal offense punished severely in some States. See K. Stampp, The Peculiar Institution: Slavery in the Ante-bellum South 208, 211 (1956). Virginia made it a crime for a member of an “abolition” society to enter the State and argue “that the owners of slaves have no property in the same, or advocate or advise the abolition of slavery.” 1835–1836 Va. Acts ch. 66, p. 44. Other States prohibited the circulation of literature denying a master’s right to property in his slaves and passed laws requiring postmasters to inspect the mails in search of such material. C. Eaton, The Freedom–of–Thought Struggle in the Old South 118–143, 199–200 (1964).

Many legislatures amended their laws prohibiting slaves from carrying firearms18 to apply the prohibition to free blacks as well. See, e.g., Act of Dec. 23, 1833, § 7, 1833 Ga. Acts pp. 226, 228 (declaring that “it shall not be lawful for any free person of colour in this state, to own, use, or carry fire arms of any description whatever”); H. Aptheker, Nat Turner’s Slave Rebellion 74–76, 83–94 (1966) (discussing similar Maryland and Virginia statutes); see also Act of Mar. 15, 1852, ch. 206, 1852 Miss. Laws p. 328 (repealing laws allowing free blacks to obtain firearms licenses); Act of Jan. 31, 1831, 1831 Fla. Acts p. 30 (same). Florida made it the “duty” of white citizen “patrol[s] to search negro houses or other suspected places, for fire arms.” Act of Feb. 17, 1833, ch. 671, 1833 Fla. Acts pp. 26, 30. If they found any firearms, the patrols were to take the offending slave or free black “to the nearest justice of the peace,” whereupon he would be “severely punished” by “whipping on the bare back, not exceeding thirty-nine lashes,” unless he could give a “plain and satisfactory” explanation of how he came to possess the gun. Ibid.

Southern blacks were not alone in facing threats to their personal liberty and security during the antebellum era. Mob violence in many Northern cities presented dangers as well. Cottrol & Diamond, The Second Amendment: Toward an Afro–Americanist Reconsideration, 80 Geo. L.J. 309, 340 (1991) (hereinafter Cottrol) (recounting a July 1834 mob attack against “churches, homes, and businesses of white abolitionists and blacks” in New York that involved “upwards of twenty thousand people and required the intervention of the militia to suppress”); ibid. (noting an uprising in Boston nine years later in which a confrontation between a group of white sailors and four blacks led “a mob of several hundred whitesto “attac[k] and severely beat every black they could find”).


After the Civil War, Southern anxiety about an uprising among the newly freed slaves peaked. As Representative Thaddeus Stevens is reported to have said, “[w]hen it was first proposed to free the slaves, and arm the blacks, did not half the nation tremble? The prim conservatives, *3082 the snobs, and the male waiting-maids in Congress, were in hysterics.” K. Stampp, The Era of Reconstruction, 1865–1877, p. 104 (1965) (hereinafter Era of Reconstruction).

As the Court explains, this fear led to “systematic efforts” in the “old Confederacy” to disarm the more than 180,000 freedmen who had served in the Union Army, as well as other free blacks. See ante, at 3038. Some States formally prohibited blacks from possessing firearms. Ante, at 3038 – 3039 (quoting 1865 Miss. Laws p. 165, § 1, reprinted in 1 Fleming 289). Others enacted legislation prohibiting blacks from carrying firearms without a license, a restriction not imposed on whites. See, e.g., La. Statute of 1865, reprinted in id., at 280. Additionally, “[t]hroughout the South, armed parties, often consisting of ex-Confederate soldiers serving in the state militias, forcibly took firearms from newly freed slaves.” Ante, at 3039.

As the Court makes crystal clear, if the Fourteenth Amendment “had outlawed only those laws that discriminate on the basis of race or previous condition of servitude, African–Americans in the South would likely have remained vulnerable to attack by many of their worst abusers: the state militia and state peace officers.” Ante, at 3043. In the years following the Civil War, a law banning firearm possession outright “would have been nondiscriminatory only in the formal sense,” for it would have “left firearms in the hands of the militia and local peace officers.” Ibid.

Evidence suggests that the public understood this at the time the Fourteenth Amendment was ratified. The publicly circulated Report of the Joint Committee on Reconstruction extensively detailed these abuses, see ante, at 3038 – 3039 (collecting examples), and statements by citizens indicate that they looked to the Committee to provide a federal solution to this problem, see, e.g., 39th Cong. Globe 337 (remarks of Rep. Sumner) (introducing “a memorial from the colored citizens of the State of South Carolina” asking for, inter alia, “constitutional protection in keeping arms, in holding public assemblies, and in complete liberty of speech and of the press”).

One way in which the Federal Government responded was to issue military orders countermanding Southern arms legislation. See, e.g., Jan. 17, 1866, order from Major General D.E. Sickles, reprinted in E. McPherson, The Political History of the United States of America During the Period of Reconstruction 37 (1871) ( “The constitutional rights of all loyal and well-disposed inhabitants to bear arms will not be infringed”). The significance of these steps was not lost on those they were designed to protect. After one such order was issued, The Christian Recorder, published by the African Methodist Episcopal Church, published the following editorial:

“ ‘We have several times alluded to the fact that the Constitution of the United States, guaranties to every citizen the right to keep and bear arms…. All men, without the distinction of color, have the right to keep arms to defend their homes, families, or themselves.’

“We are glad to learn that [the] Commissioner for this State … has given freedmen to understand that they have as good a right to keep fire arms as any other citizens. The Constitution of the United States is the supreme law of the land, and we will be governed by that at present.” Right to Bear Arms, Christian Recorder (Phila.), Feb. 24, 1866, pp. 29–30.

The same month, The Loyal Georgian carried a letter to the editor asking “Have colored persons a right to own and carry *3083 fire arms?—A Colored Citizen.” The editors responded as follows:

“Almost every day, we are asked questions similar to the above. We answer certainly you have the same right to own and carry fire arms that other citizens have. You are not only free but citizens of the United States and, as such, entitled to the same privileges granted to other citizens by the Constitution of the United States.

“… Article II, of the amendments to the Constitution of the United States, gives the people the right to bear arms and states that this right shall not be infringed…. All men, without distinction of color, have the right to keep arms to defend their homes, families or themselves.” Letter to the Editor, Loyal Georgian (Augusta), Feb. 3, 1866, p. 3.

These statements are consistent with the arguments of abolitionists during the antebellum era that slavery, and the slave States’ efforts to retain it, violated the constitutional rights of individuals—rights the abolitionists described as among the privileges and immunities of citizenship. See, e.g., J. Tiffany, Treatise on the Unconstitutionality of American Slavery 56 (1849) (reprint 1969) (“pledg[ing] … to see that all the rights, privileges, and immunities, granted by the constitution of the United States, are extended to all”); id., at 99 (describing the “right to keep and bear arms” as one of those rights secured by “the constitution of the United States”). The problem abolitionists sought to remedy was that, under Dred Scott, blacks were not entitled to the privileges and immunities of citizens under the Federal Constitution and that, in many States, whatever inalienable rights state law recognized did not apply to blacks. See, e.g., Cooper v. Savannah, 4 Ga. 68, 72 (1848) (deciding, just two years after Chief Justice Lumpkin’s opinion in Nunn recognizing the right to keep and bear arms, see supra, at 3079 – 3080, that “[f]ree persons of color have never been recognized here as citizens; they are not entitled to bear arms”).

Section 1 guaranteed the rights of citizenship in the United States and in the several States without regard to race. But it was understood that liberty would be assured little protection if § 1 left each State to decide which privileges or immunities of United States citizenship it would protect. As Frederick Douglass explained before § 1’s adoption, “the Legislatures of the South can take from him the right to keep and bear arms, as they can—they would not allow a negro to walk with a cane where I came from, they would not allow five of them to assemble together.” In What New Skin Will the Old Snake Come Forth? An Address Delivered in New York, New York, May 10, 1865, reprinted in 4 The Frederick Douglass Papers 79, 83–84 (J. Blassingame & J. McKivigan eds., 1991) (footnote omitted). “Notwithstanding the provision in the Constitution of the United States, that the right to keep and bear arms shall not be abridged,” Douglass explained that “the black man has never had the right either to keep or bear arms.” Id., at 84. Absent a constitutional amendment to enforce that right against the States, he insisted that “the work of the Abolitionists [wa]s not finished.” Ibid.

This history confirms what the text of the Privileges or Immunities Clause most naturally suggests: Consistent with its command that “[n]o State shall … abridge” the rights of United States citizens, the Clause establishes a minimum baseline of federal rights, and the constitutional right to keep and bear arms plainly was among them.19

*3084 III

My conclusion is contrary to this Court’s precedents, which hold that the Second Amendment right to keep and bear arms is not a privilege of United States citizenship. See Cruikshank, 92 U.S., at 548–549, 551–553. I must, therefore, consider whether stare decisis requires retention of those precedents. As mentioned at the outset, my inquiry is limited to the right at issue here. Thus, I do not endeavor to decide in this case whether, or to what extent, the Privileges or Immunities Clause applies any other rights enumerated in the Constitution against the States.20 Nor do I suggest that the stare decisis considerations surrounding the application of the right to keep and bear arms against the States would be the same as those surrounding another right protected by the Privileges or Immunities Clause. I consider stare decisis only as it applies to the question presented here.


This inquiry begins with the Slaughter–House Cases. There, this Court upheld a Louisiana statute granting a monopoly on livestock butchering in and around the city of New Orleans to a newly incorporated company. 16 Wall. 36, 21 L.Ed. 394. Butchers excluded by the monopoly sued, claiming that the statute violated the Privileges or Immunities Clause because it interfered with their right to pursue and “exercise their trade.” Id., at 60. This Court rejected the butchers’ claim, holding that their asserted right was not a privilege or immunity of American citizenship, but one governed by the States alone. The Court held that the Privileges or Immunities Clause protected only rights of federal citizenship—those “which owe their existence to the Federal government, its National character, its Constitution, or its laws,” id., at 79—and did not protect any of the rights of state citizenship, id., at 74. In other words, the Court defined the two sets of rights as mutually exclusive.

After separating these two sets of rights, the Court defined the rights of state citizenship as “embrac[ing] nearly every civil right for the establishment and protection of which organized government is instituted”—that is, all those rights listed in Corfield. 16 Wall., at 76 (referring to “those rights” that “Judge Washington” described). That left very few rights of *3085 federal citizenship for the Privileges or Immunities Clause to protect. The Court suggested a handful of possibilities, such as the “right of free access to [federal] seaports,” protection of the Federal Government while traveling “on the high seas,” and even two rights listed in the Constitution. Id., at 79 (noting “[t]he right to peaceably assemble” and “the privilege of the writ of habeas corpus ”); see supra, at 3060. But its decision to interpret the rights of state and federal citizenship as mutually exclusive led the Court in future cases to conclude that constitutionally enumerated rights were excluded from the Privileges or Immunities Clause’s scope. See Cruikshank, supra.

I reject that understanding. There was no reason to interpret the Privileges or Immunities Clause as putting the Court to the extreme choice of interpreting the “privileges and immunities” of federal citizenship to mean either all those rights listed in Corfield, or almost no rights at all. 16 Wall., at 76. The record is scant that the public understood the Clause to make the Federal Government “a perpetual censor upon all legislation of the States” as the Slaughter–House majority feared. Id., at 78. For one thing, Corfield listed the “elective franchise” as one of the privileges and immunities of “citizens of the several states,” 6 F. Cas., at 552, yet Congress and the States still found it necessary to adopt the Fifteenth Amendment—which protects “[t]he right of citizens of the United States to vote”—two years after the Fourteenth Amendment’s passage. If the Privileges or Immunities Clause were understood to protect every conceivable civil right from state abridgment, the Fifteenth Amendment would have been redundant.

The better view, in light of the States and Federal Government’s shared history of recognizing certain inalienable rights in their citizens, is that the privileges and immunities of state and federal citizenship overlap. This is not to say that the privileges and immunities of state and federal citizenship are the same. At the time of the Fourteenth Amendment’s ratification, States performed many more functions than the Federal Government, and it is unlikely that, simply by referring to “privileges or immunities,” the Framers of § 1 meant to transfer every right mentioned in Corfield to congressional oversight. As discussed, “privileges” and “immunities” were understood only as synonyms for “rights.” See supra, at 3063 – 3064. It was their attachment to a particular group that gave them content, and the text and history recounted here indicate that the rights of United States citizens were not perfectly identical to the rights of citizens “in the several States.” Justice Swayne, one of the dissenters in Slaughter–House, made the point clear:

“The citizen of a State has the same fundamental rights as a citizen of the United States, and also certain others, local in their character, arising from his relation to the State, and in addition, those which belong to the citizen of the United States, he being in that relation also. There may thus be a double citizenship, each having some rights peculiar to itself. It is only over those which belong to the citizen of the United States that the category here in question throws the shield of its protection.” 16 Wall., at 126 (emphasis added).

Because the privileges and immunities of American citizenship include rights enumerated in the Constitution, they overlap to at least some extent with the privileges and immunities traditionally recognized in citizens in the several States.

A separate question is whether the privileges and immunities of American citizenship include any rights besides those enumerated in the Constitution. The four *3086 dissenting Justices in Slaughter–House would have held that the Privileges or Immunities Clause protected the unenumerated right that the butchers in that case asserted. See id., at 83 (Field, J., dissenting); id., at 111 (Bradley, J., dissenting); id., at 124 (Swayne, J., dissenting). Because this case does not involve an unenumerated right, it is not necessary to resolve the question whether the Clause protects such rights, or whether the Court’s judgment in Slaughter–House was correct.

Still, it is argued that the mere possibility that the Privileges or Immunities Clause may enforce unenumerated rights against the States creates “ ‘special hazards’ ” that should prevent this Court from returning to the original meaning of the Clause.21 Post, at 3089 – 3090 (STEVENS, J., dissenting). Ironically, the same objection applies to the Court’s substantive due process jurisprudence, which illustrates the risks of granting judges broad discretion to recognize individual constitutional rights in the absence of textual or historical guideposts. But I see no reason to assume that such hazards apply to the Privileges or Immunities Clause. The mere fact that the Clause does not expressly list the rights it protects does not render it incapable of principled judicial application. The Constitution contains many provisions that require an examination of more than just constitutional text to determine whether a particular act is within Congress’ power or is otherwise prohibited. See, e.g., Art. I, § 8, cl. 18 (Necessary and Proper Clause); Amdt. 8 (Cruel and Unusual Punishments Clause). When the inquiry focuses on what the ratifying era understood the Privileges or Immunities Clause to mean, interpreting it should be no more “hazardous” than interpreting these other constitutional provisions by using the same approach. To be sure, interpreting the Privileges or Immunities Clause may produce hard questions. But they will have the advantage of being questions the Constitution asks us to answer. I believe those questions are more worthy of this Court’s attention—and far more likely to yield discernable answers—than the substantive due process questions the Court has for years created on its own, with neither textual nor historical support.

Finding these impediments to returning to the original meaning overstated, I reject Slaughter–House insofar as it precludes any overlap between the privileges and immunities of state and federal citizenship. I next proceed to the stare decisis considerations surrounding the precedent that expressly controls the question presented here.


Three years after Slaughter–House, the Court in Cruikshank squarely held that the right to keep and bear arms was not a privilege of American citizenship, thereby overturning the convictions of militia members responsible for the brutal Colfax Massacre. See supra, at 3027 – 3028. Cruikshank is not a precedent entitled to any respect. The flaws in its interpretation of the Privileges or Immunities Clause are made evident by the preceding evidence of its original meaning, and I would reject the holding on that basis alone. But, the consequences of Cruikshank warrant mention as well.

*3087 Cruikshank ‘s holding that blacks could look only to state governments for protection of their right to keep and bear arms enabled private forces, often with the assistance of local governments, to subjugate the newly freed slaves and their descendants through a wave of private violence designed to drive blacks from the voting booth and force them into peonage, an effective return to slavery. Without federal enforcement of the inalienable right to keep and bear arms, these militias and mobs were tragically successful in waging a campaign of terror against the very people the Fourteenth Amendment had just made citizens.

Take, for example, the Hamburg Massacre of 1876. There, a white citizen militia sought out and murdered a troop of black militiamen for no other reason than that they had dared to conduct a celebratory Fourth of July parade through their mostly black town. The white militia commander, “Pitchfork” Ben Tillman, later described this massacre with pride: “[T]he leading white men of Edgefield” had decided “to seize the first opportunity that the negroes might offer them to provoke a riot and teach the negroes a lesson by having the whites demonstrate their superiority by killing as many of them as was justifiable.” S. Kantrowitz, Ben Tillman & the Reconstruction of White Supremacy 67 (2000) (ellipsis, brackets, and internal quotation marks omitted). None of the perpetrators of the Hamburg murders was ever brought to justice.22

Organized terrorism like that perpetuated by Tillman and his cohorts proliferated in the absence of federal enforcement of constitutional rights. Militias such as the Ku Klux Klan, the Knights of the White Camellia, the White Brotherhood, the Pale Faces, and the ‘76 Association spread terror among blacks and white Republicans by breaking up Republican meetings, threatening political leaders, and whipping black militiamen. Era of Reconstruction, 199–200; Curtis 156. These groups raped, murdered, lynched, and robbed as a means of intimidating, and instilling pervasive fear in, those whom they despised. A. Trelease, White Terror: The Ku Klux Klan Conspiracy and Southern Reconstruction 28–46 (1995).

Although Congress enacted legislation to suppress these activities,23 Klan tactics remained a constant presence in the lives of Southern blacks for decades. Between 1882 and 1968, there were at least 3,446 reported lynchings of blacks in the South. Cottrol 351–352. They were tortured and killed for a wide array of alleged crimes, without even the slightest hint of due process. Emmit Till, for example, was killed in 1955 for allegedly whistling at a white woman. S. Whitfield, A Death in the Delta: The Story of Emmett Till 15–31 (1988). The fates of other targets of mob violence were equally depraved. See, e.g., Lynched Negro and Wife Were First Mutilated, Vicksburg (Miss.) Evening Post, Feb. 8, 1904, reprinted in R. Ginzburg, 100 Years *3088 of Lynchings 63 (1988); Negro Shot Dead for Kissing His White Girlfriend, Chi. Defender, Feb. 31, 1915, in id., at 95 (reporting incident in Florida); La. Negro Is Burned Alive Screaming “I Didn’t Do It,” Cleveland Gazette, Dec. 13, 1914, in id., at 93 (reporting incident in Louisiana).

The use of firearms for self-defense was often the only way black citizens could protect themselves from mob violence. As Eli Cooper, one target of such violence, is said to have explained, “ ‘[t]he Negro has been run over for fifty years, but it must stop now, and pistols and shotguns are the only weapons to stop a mob.’ ” Church Burnings Follow Negro Agitator’s Lynching, Chicago Defender, Sept. 6, 1919, in id., at 124. Sometimes, as in Cooper’s case, self-defense did not succeed. He was dragged from his home by a mob and killed as his wife looked on. Ibid. But at other times, the use of firearms allowed targets of mob violence to survive. One man recalled the night during his childhood when his father stood armed at a jail until morning to ward off lynchers. See Cottrol, 354. The experience left him with a sense, “not ‘of powerlessness, but of the “possibilities of salvation” ’ ” that came from standing up to intimidation. Ibid.

In my view, the record makes plain that the Framers of the Privileges or Immunities Clause and the ratifying-era public understood—just as the Framers of the Second Amendment did—that the right to keep and bear arms was essential to the preservation of liberty. The record makes equally plain that they deemed this right necessary to include in the minimum baseline of federal rights that the Privileges or Immunities Clause established in the wake of the War over slavery. There is nothing about Cruikshank ‘s contrary holding that warrants its retention.

I agree with the Court that the Second Amendment is fully applicable to the States. I do so because the right to keep and bear arms is guaranteed by the Fourteenth Amendment as a privilege of American citizenship.

Corporate Personality, Individual Anonymity, and Anonymous Society—Aspects of the (not always consistent) Quests for Freedom, Responsibility, Security: (I have an Alternative to the Sanders’ Amendment)


Senator Bernard (“Bernie”) Sanders of Vermont (just last week one of the 7 heroic senators who voted AGAINST S.B. 1867, whom I said might be qualified for reelection) has  proposed a Constitutional Amendment which purports to overturn and abolish the Judicial Definition of “Corporations” as “Persons” entitled to Equal Protection under the Fourteenth  Amendment, while affirming and clarifying the Federal government’s power and ability to regulate business entities and corporations.  I predict that this  amendment will go nowhere fast for a wide variety of reasons, most of which are despicable, but some of which are comprehensible.  I oppose Senator Sanders’ amendment and propose my own after a discussion of the Constitutional status of corporations (including all governmental entities).  The text of Sanders’ proposed amendment reads as follows:

SECTION 1. The rights protected by the Constitution of the United States are the rights of natural persons and do not extend to for-profit corporations, limited liability companies, or other private entities established for business purposes or to promote business interests under the laws of any state, the United States, or any foreign state.

SECTION 2. Such corporate and other private entities established under law are subject to regulation by the people through the legislative process so long as such regulations are consistent with the powers of Congress and the States and do not limit the freedom of the press.

SECTION 3. Such corporate and other private entities shall be prohibited from making contributions or expenditures in any election of any candidate for public office or the vote upon any ballot measure submitted to the people.

SECTION 4. Congress and the States shall have the power to regulate and set limits on all election contributions and expenditures, including a candidate’s own spending, and to authorize the establishment of political committees to receive, spend, and publicly disclose the sources of those contributions and expenditures.

On one level, I have been thinking the same thing ever since Second Year in Law School: Construing the newly enacted 14th Amendment in the 1870s, the Supreme Court for the first time declared that corporations were in fact “persons” under the Constitution with at least limited constitutional rights to equal protection under the Fourteenth Amendment.  

In writing the above sentence I am struck, and I hope the reader is also, by the internal contradiction contained in the oxymoronic statement “at least limited constitutional rights to equal protection.”  Right away it seems semantically obvious that there can never exist any category of “persons” who have a “limited right to equal protection”, because by definition, their protection is not equal if it is limited.

What the Supreme Court decided, in fact, was that corporations are entitled to equal protection under the Fifth Amendment—not to be deprived of life, liberty, or property without due process of law.   It is sufficiently bizarre to speak of a non-living corporate entity’s right not to be deprived of life or liberty, so what it comes down to is fundamentally property and the right to contract (and this was the subject of the famous “Slaughterhouse cases” from New Orleans which went to the Supreme Court).   Fifty years after the Fourteenth Amendment, the Supreme Court was still unsure of the contours of liberty:

While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. Slaughter-House Cases, 16 Wall. 36; Butchers’ Union Co. v. Crescent City Co., 111 U.S. 746; Yick Wo v v. Hopkins, 118 U.S. 356; Minnesota v. Barber, 136 U.S. 313; Allgeyer v. Louisiana, 165 U.S. 578; Lochner v. New York, 198 U.S. 45; Twining v. New Jersey, 211 U.S. 78; Chicago, Burlington & Quincy R.R. Co. v. McGuire, 219 U.S. 549; Truax v. Raich, 239 U.S. 33; Adams v. Tanner, 244 U.S. 590; New York Life Ins. Co. v. Dodge, 246 U.S. 357; Truax v. Corrigan, 257 U.S. 312; Adkins v. Children’s Hospital, 216 U.S. 525; Wyeth v. Cambridge Board of Health, 200 Mass. 474.

        The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect. Determination by the legislature of what constitutes proper exercise of police power is not final or conclusive but is subject to supervision by the courts. Lawton v. Steele, 152 U.S. 133, 137

Meyer v. Nebraska, 262 U.S. 390, 399-400, 43 S.Ct. 625, 626-627, 67 L.Ed. 1042, 1045 (1923)(bold and italic emphasis added).

          We may at least be thankful that Corporations have never been considered worthy of “full” equal rights as persons, in that they have never been judicially deemed to posses any fundamental right “to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

          So it seems safe to say that a corporation is not the same as a “free man”, although it is formed by and composed of free men and women.  But in some regards, the law has evolved so that corporations, especially but not limted to “governmental corporations”, possesses immunities that “free men” do not possess, and for that reason, a corporation is almost a preferred status.  

           A corporation simply cannot ever, for example, truly be subject to the death penalty, or to incarceration, or [since it cannot marry] to divorce or child custody suits.  It all comes down to property and contractual rights regarding property.  But the people involved in all types of corporations do things analogous to procreating (spinning off new entities), divorcing or dying (dissolution or splitting up), and they can certainly sue each other for possession of property in a manner analogous to child custody suits.

              It has also never been said, in the history of the United States, that corporations should be able to vote or hold office—so they have no “political” rights (although Ecclesiastical Entities were entitled to representation in some of the ancient parliaments of Europe, and routinely for over a thousand years cast votes for the “election” of the Holy Roman Emperor in Germany, for instance).   The text of Senator Sanders’ proposed amendment is wrong in so many ways, fundamentally too long, among other things:

“SECTION 1. The rights protected by the Constitution of the United States are the rights of natural persons and do not extend to for-profit corporations, limited liability companies, or other private entities established for business purposes or to promote business interests under the laws of any state, the United States, or any foreign state.”

OXYMORONIC PROBLEMS COMPOUND here rather than resolve themselves: Why does Senator Sanders distinguish “for profit” corporations?  We’re going to have a constitutional standard for what constitutes a “profit” now?  Will Congress or the bureaucrats who draft the Code of Federal Regulations outline and define the federal distinction between limited liability companies and corporations on the one hand and “other private entities established for business purposes or to promote business interests under the laws”?  This section alone amounts to a COMPLETE Federalization of State commercial and corporate law under the guise of protecting against corrupt campaign contributions.

“SECTION 2. Such corporate and other private entities established under law are subject to regulation by the people through the legislative process so long as such regulations are consistent with the powers of Congress and the States and do not limit the freedom of the press.”

Frying pan into the fire—as much as I like Bernie Sanders in some ways, I’m beginning to think this man may be dangerous.  Most of us in the Constitutional Democratic-Republican movement oppose the use of the “Necessary and Proper” Clause, the “Interstate Commerce” Clause, and the “General Welfare” Clause as justification for federal regulation.  Section 2 of Sanders’ proposed Amendment would eliminate the need for any other constitutional justification for regulation, by writing into the Constitution: “Such corporate and other private entities established under law are subject to regulation by the people through the legislative process so long as such regulations are consistent with the powers of Congress and the States and do not limit the freedom of the press.”   So who’s side is Bernie Sanders really on and what is he trying to do?  It appears his amendment would OBLITERATE all possible debate regarding Congressional and Executive Power to regulate the economy in every imaginable way.  I would, accordingly, oppose this amendment….

“SECTION 3. Such corporate and other private entities shall be prohibited from making contributions or expenditures in any election of any candidate for public office or the vote upon any ballot measure submitted to the people.”

This sounds like  rather draconian prohibition against people who happen to own shares in a corporation from pooling their money.

“SECTION 4. Congress and the States shall have the power to regulate and set limits on all election contributions and expenditures, including a candidate’s own spending, and to authorize the establishment of political committees to receive, spend, and publicly disclose the sources of those contributions and expenditures.”

        Again, listening to Sanders speak in the video excerpt above, I thought that he meant to limit the power of the collective, wealthy, and corporate against the individual, but in this Fourth Section, it seems to me that this Amendment ends up being a massive increase in the power of government.  

      And Sanders also ignores the fundamentally corporate nature of government itself: Some governmental entities, mostly municipalities, are officially “incorporated”.  Others are merely approved [like corporations] by Congress as States upon submission of a “corporate charter” = State Constitution.  Still others, like counties, may not have a charter at all but are merely “political subdivisions” = “subsidiaries” of a parent corporation, namely “the state”).  From a historical and anthropological standpoint, though, a governmental entity is fundamentally corporate—it is a group of people who assemble together for a specific purpose under specific rules, and in that these “incorporating” parties create a new entity, and not all people have exactly equal functions as “partners” within the corporation, the modern private corporation is most closely analogous to the modern governmental entity at any level.  

         And the courts, in developing rules of liability and authority in corporate and governmental hierarchy, have come up with rules which tend to immunize corporate and governmental officers and directors in much the same way.  This is equally true all over Europe and the Anglo-American world and in Latin America, wherever the descendants of the Roman or Anglo-Saxon (Viking) legal traditions have taken root (e.g. South Africa, India, Japan).  

         Up to a certain point, the political right to form a corporate personality (whether governmental or private) derives directly and depends upon two genuine constitutional rights expressly stated in the First Amendment: the right of the people peaceably to assemble and to petition the Government for redress of grievances.  Closely related to the right of the people of the people to assemble peaceably is the right to be anonymous, and not to bear sole responsibility for ones actions, but to share such responsibility.

      The right to engage in coordinated, social and political action IS a fundamental right of freedom.  What I suppose I object to more than anything is that the Citizens United decision to which Sanders objects gives corporations GREATER rights than individuals.  

And herein lies the greater problem: rights vs. responsibility, the right to freely assemble and associate vs. individual liability for loss and injury.

       Originally, people formed corporations precisely for the purpose of engaging in risky economic ventures.  “Well, I’d like to bring coffee/tea/spices/silks to Holland/England/New England/Virginia from India/Indonesia/China, but I don’t have enough money to do that myself, so what if we all got together and pooled our resources to form a company?  If I buy a ship myself and the ship sinks, I’m sunk, but if we all pool our gold to buy ten ships, well, none of us risks everything and with ten ships, even if one sinks, we don’t lose everything.”  That’s how corporate investing started, and how it continued, basically, until just after the so-called American Civil War/War Between the States, when this concept of corporate personhood first came into the forefront of the Anglo-American legal environment.

       Originally, corporate directors (and governmental officials in the United States at least) were both expressly designated and implicitly treated as trustees, a species of officers with “super-liability” for losses or mishandling to their shareholders.  Now, corporate officers and directors nearly have immunity—hiding [from the shareholder owners and in fact, the rest of the world] behind the corporate personality of their “employer”.  

So, in a free society, how can we balance the rights of the people peacefully to assemble to Petition the Government for Redress of Grievances (and for lots of other purposes), without obliterating individual liability for loss arising from negligence, recklessness, and criminal conduct occurring behind the “corporate veil?”  

I propose an alternative amendment, much simpler and more direct than that proposed by Senator Sanders of Vermont:

Section 1: “The rights of the people peaceably to assemble and associate for any purpose shall not be infringed, and the people may, according to the law, combine their identities to create new private or public organizations, partnerships and entities, and to dedicate these entities as primarily commercial or primarily for public service.  But neither the legislatures nor courts of the United States nor any state may define or designate any class of corporations, governmental bodies, nor any other entities, which by virtue of their classification or denomination shall thereby be granted or allowed any immunity from loss or injury caused by civil or criminal wrong, including the injurious abuse of any constitutional right or power.  Nor shall the legislatures or courts of the United States nor any state grant or allow any special privileges or immunities to the officers, directors, agents or other employees of any private, public, commercial, or “governmental” corporation or like enterprise, however owned or chartered, privileges or immunities greater than those which inure to all citizens, providing that the power of the President to grant pardons and paroles in the interests of justice and mercy shall not be limited by this provision.”

        The People should always have the right to engage in collective social, economic, and political activity, but not to hide their wrongdoing or escape from the consequences of criminal conduct by so engaging.   And this rule should not merely apply to the “for profit” corporations, but also to the organs of the United States Government as well as the government of every state, municipal, and local “corporation” as well.  

Every governmental entity is by definition a corporation.  It is incongruous and incoherent to think of government as anything other than a particular class or kind of corporation: it is organized for a purpose and granted certain powers, but only certain powers, by its corporate charter (for example, the United States Constitution).  CORPORATE IMMUNITY SHOULD NOT EXIST.  GOVERNMENTAL IMMUNITY SHOULD NOT EXIST.  I challenge anyone to tell me that Bernie Sanders’ proposed Amendment is actually better than mine as a “Freedom-Respecting, Liberty-Conserving” addition to the Constitution.

If you would like to help the fight for “corny old values” like Truth, Justice, and the American Way, for Family, Home, and Freedom, and to add one Senator for the Bill of Rights and against Indefinite Detention, against the PATRIOT ACT, and against the use of United States Troops in this Country against its own citizens, please support Charles Edward Lincoln, III, for U.S. Senator from California.  We are fighting one of the most entrenched establishment seats in Congress—Dianne Feinstein who tried to make cosmetic changes in S.B. 1867 to hide and disguise its truly oppressive nature (and to claim she had “done the best she could”, perhaps?)—and we ask you to send your check or money order to Lincoln-for-Senate 2012 to Charles Edward Lincoln, III, 952 Gayley Avenue, #143, Los Angeles, California 90024.  Call 310-773-6023 for more information. 


Once again, Renada Nadine March leads the way onto the legal frontier in California. Here is Renada’s latest filing as of November 17, 2011 8-11-cv-01768-UA-SS March v Russell Complaint Filed in SACV11-01768 11-17-2011; it is directly related to our joint filing of September 30, 2011, in 8:09-cv-01072-DOC in response to Judge Carter’s Order to Show cause regarding the question of why the case was dragging on so long without being effectively moved forward (Case 8-09-cv-01072-DOC-E Document 86 Response to Order to Show Cause Filed 09-30-2011Case 8-09-cv-01072-DOC -E Document 86-Part 1—Filed 09-30-2011Case 8-09-cv-01072-DOC-E Document 86–Part 2—Filed 09-30-2011)

WHY DO SOME LAWYERS ACCEPT CASES AND THEN BETRAY THEIR CLIENTS?  Is it “all about money” (i.e. stealing: accepting money for nothing) or is there an agreement to silent certain people and their positions through acceptance of representation?

Mandatory Membership in State Bar Associations is supposed to increase the quality of the profession.  (see, e.g. A Reassessment of Mandatory State Bar Membership in Light of Levine v. Heffernan). 

In reality, I submit and many (for example Milton Friedman, F.A. von Hayek, and other economists) would agree that the perfection of any monopoly protects the mediocre and incompetent members of the profession to the detriment of innovators and the sharpest experts, and subjects the profession as a whole to oppressive regimentation and mind-numbing conformity.   The time has come to wipe the slate clean and remove the bar to creative advocacy and competent legal analysis independent of political power hierarchies.  When elite block gradual evolution, bloody revolution becomes more likely, even necessary.  It is a form of ordinary systemic readjustment to prevent stagnation and death—which is what we’re experiencing right now in America: socio-cultural and economic death because the legal monopoly has dug in and taken sides against the Constitution.

Judges are either political appointed and confirmed (in the Federal System) or elected politically (in most state systems, although most state Judges are in fact “appointed” and then subjected to uncontested, undebated, issue-free “retention elections” as a matter of political realpolitik and social fact—supported and bolstered by the “integrated bar” in each state).   It is preposterous to suppose that individuals politically important enough to become Judges, or with friends politically important enough to make them judges, will be anything but partisan arbiters of cases.  We live in a political society, and to pretend otherwise would be to engage in self-deception.  

The genius of the American Constitution, however, was always and should always be to take the human condition as it is (full of sin, especially greed and envy) and make the best of it by structuring a government wherein no one group or faction could ever achieve too great an ascendency over another: and this then is the fundamental constitutional, cultural, economic, and social evil inherent in monopolistic practices of any kind.  This anti-monopolistic structural-function (one could equally call it an anti-Monarchy framework with anti-Oligarchy safeguards) is the origin of the Separation of Powers doctrine advocated in favor of the Constitution throughout the ratification debates (see especially Madison, Jay, and Hamilton’s Federalist Papers) and which Separation of Powers doctrine was at the heart of most major Constitutional Litigation in the Supreme Court from its first session starting on February 1, 1790 through at least the Slaughterhouse Cases published at 83 U.S. 36, 100 U.S. 1, and 111 U.S. 746 in 1872-1884.   The dissent in the first of those case may have gotten it right when stating that the Civil Rights Acts implementing the Fourteenth Amendment perpetuated the Common Law of England in condemning governmental interference with the obligation of contracts and to avoid state-created monopolies.  The Slaughterhouse Dissent, and my own position, is that equality of rights, in the lawful pursuits of life, throughout the entire country, are privileges of the citizens of the United States.  Certainly states may (up to a point) regulate health and safety issues within their territory (although I would say this should be done with a keen eye NOT to violate either the Constitution or the Common Law), but once enacted those regulations must be free to be followed by every citizen who is within the conditions designated—there can be no specially privileged classes, no monopolies, and yet that is EXACTLY what lawyers have become.  Some have even suggested that the status now enjoyed by lawyers in the United States violates the Constitutional prohibition on titles of nobility, and there is much historical as well as socio-cultural and economic reality in that suggestion.

I myself have repeatedly advocated cutting back on the State Licensing of Attorneys and the State Licensed Monopoly created by “Integrated (i.e. Mandatory) Bar Associations” nationwide.  Currently there are several live counts in 8:09-cv-01072-DOC pending in U.S. District Court in Orange County which attack the constitutionality of several provisions of California Civil Law as creating special status for attorneys (most pernicious of which is surely the Civil Conspiracy Exemption: §1714.10, but also obnoxious and injurious is the 425.16 prohibition on the filing of Lis Pendens except by attorney).  But in the past I have advocated a more radical position which I think is in fact the correct one, see e.g.: 04-03-09 Complaint in Intervention Montana04-03-09 NOTICE OF INTERVENTION,  Case 9-08-cv-00091-DWM-JCL Lincoln & Freiman Intervene in O’Neil Document 82 Filed 04-03-09, and Case 9-08-cv-00091-DWM-JCL Lincoln & Freiman Complaint in Intervention Document 82-1 Filed 04-03-09.

Right now in California, it seems that the Attorney General and the Bar are ganging up on attorneys who really and truly want to fight the foreclosure epidemic, as I pointed out last year in an open letter to the then Attorney General, now Governor, Edmund G. Brown.  CEL to EDMUND G BROWN CAL AG 08-26-2010CEL to EDMUND G BROWN CAL AG 08-26-2010.

The result is that the State Bar of California, like all State Monopolies, has become a source of stagnation and oppression.  I submit that as a matter of Federal Law, Congress has the power to by statute enact that NO STATE SHALL INFRINGE upon, limit, or grant any monopoly or license to any person or group of persons to speak, write, regarding the effect or interpretation of the law or any other subject, and no State may grant any monopoly or license to any person or group of persons to petition orally or in writing, on behalf of themselves or of others, for redress of grievances.   I think that pretty well defines and takes care of the practice of law, doesn’t it?   The practice of law is NOTHING but the exercise of fundamental First Amendment rights.

I promise to propose and advocate such legislation every day of every session if I am elected United States Senator from California.

And yes, as everyone knows, I have the nerve to write all this criticism of the system either in spite of or (in part only) because of the fact that I was formally disbarred from three integrated bar associations, resigned from two others (State and Federal).  I was once licensed to practice over most of the length of Interstate-10 from Jacksonville to Santa Monica, but on the order of Federal Judges sitting in Texas, but on the illegal or at the very least Constitutionally improper, oppressive and irrational order of two power-mad Federal Judges sitting in Texas, I have been jailed (without probable cause for any crime, but “just for a little talk”) at both opposite extremes of that same interstate for the purpose of being brought before their Honors Lynn N. Hughes and Janis Graham Jack in Houston (August-October 2006) and Corpus Christi (December 2007-February 2008).  And in fact, the result of BOTH my interactions with Judges Hughes and Jack was JUST a little talk.  I would think it were too incredible to believe if it hadn’t happened to me.

So if you think that the State Licensing of Attorneys is a system beyond reproach, you must believe that I am a very bad person.  A convicted felon found (by a guilty plea no less) to have misstated two digits of his social security number in an application for a non-interest-bearing checking account at Wells Fargo Bank in November of 1996.  Oh what a heinous crime!   Oh shock, oh horror, oh dismay! Oh what will they think of next?

Ever since my experiences with the Honorable United States District Judges James R. Nowlin, Sam Sparks, and Walter S. Smith—Yes Nowlin,Sparks, and Smith are honorable; So are they all, all honorable men*—and especially since becoming closely acquainted with Family and Mortgage Law coast-to-coast, I have concluded that there is no single more destructive group in America today than licensed attorneys.   It is often said that the 99% of that profession which is bad unfairly destroys the reputation of the remaining one percent, and I have known and worked with several in that one percent, even during the past ten years.    But as a whole the legal profession is poisoned by the monopolistic practices which permit judges, in particular, to choose and regulate those who appear before them.  This system is categorically wrong.  

*   The noble Brutus
Hath told you Caesar was ambitious:
If it were so, it was a grievous fault;
And grievously hath Caesar answer’d it.
Here, under leave of Brutus and the rest, —
For Brutus is an honorable man;
So are they all, all honorable men, —
Come I to speak in Caesar’s funeral.
He was my friend, faithful and just to me:
But Brutus says he was ambitious;
And Brutus is an honorable man. 

Julius Caesar, Act III, Scene 2: Mark Anthony’s Funeral Oration (Shakespeare).

If you would like to help the fight for “corny old values” like Truth, Justice, and the American Way, for Family, Home, and Freedom, and to add one Senator for the Bill of Rights and against Indefinite Detention, against the PATRIOT ACT, and against the use of United States Troops in this Country against its own citizens, please support Charles Edward Lincoln, III, for U.S. Senator from California.  We are fighting one of the most entrenched establishment seats in Congress—Dianne Feinstein who tried to make cosmetic changes—and we ask you to send your check or money order to Lincoln-for-Senate 2012 to Charles Edward Lincoln, III, 952 Gayley Avenue, #143, Los Angeles, California 90024.  Call 310-773-6023 for more information.

Confusion on the Front: Obfuscation and a Mockery of Uninformed Constitutionalist/Patriotism Appearance can sometimes confuse the Courts to a Defendant’s Advantage, but is it worth the perversion of serious complaints?

Sometimes, a little knowledge is said to be a dangerous thing, or is it?  Does nonsense, if it works to confound the enemy, work as well or better than well-reasoned, logical argument?   Is insanity more terrifying than powerful thinking?  Perhaps it is….but as I’ve previously noted, I do not like the “fringe” arguments advanced by many people in the Patriotic/Constitutionalist movement.  They are too wacky.  It just gets depressing, sometimes, to hear about how applying admiralty rules in cases on dry land with no boats or interpreting every legal doctrine through the UCC will solve all our problems and reveal all truth.  On the one hand, I am happy whenever a defendant can fight back the heavy hand of the law, especially while proceeding pro se, because I agree that most defense lawyers, maybe close to 100%, are all lined up against the American People with the prosecutors, and that is why the criminal justice process is essentially a conveyor belt packaging the accused by the hundreds of thousands into jail.  Usually for nothing, that’s right NOTHING.  Most people in jail pose NO threat to society or themselves, and their presence in jail benefits society as a whole ONLY as part of a cynical government “make-work” project—i.e., a form of “welfare.”  The criminal justice system as it exists today in the United States is both offensive to the Constitution and to the universal ideals of freedom and individual integrity.   However, the myths of the patriotic/constitutionalist movement are in and of themselves nothing but a mockery of the real constitutional problems.  It is NOT just White Supremacists who oppose the subversion of the Original Constitution, and yes, a lot of perverted things DID happen around and after the American Civil War/War between the States. 

Kevin Carey, research and policy manager of Education Sector, an independent think tank in Washington, DC, wrote the folloiwng article “Too Weird for the Wire: How black Baltimore drug dealers are using white supremacist legal theories to confound the Feds” in the Washington Monthly, published at:


On November 16, 2005, Willie “Bo” Mitchell and three co-defendants—Shelton “Little Rock” Harris, Shelly “Wayne” Martin, and Shawn Earl Gardner— appeared for a hearing in the modern federal courthouse in downtown Baltimore, Maryland. The four African American men were facing federal charges of racketeering, weapons possession, drug dealing, and five counts of first-degree murder. For nearly two years the prosecutors had been methodically building their case, with the aim of putting the defendants to death. In Baltimore, which has a murder rate eight times higher than that of New York City, such cases are depressingly commonplace.

A few minutes after 10 a.m., United States District Court Judge Andre M. Davis took his seat and began his introductory remarks. Suddenly, the leader of the defendants, Willie Mitchell, a short, unremarkable looking twenty-eight-yearold with close-cropped hair, leapt from his chair, grabbed a microphone, and launched into a bizarre soliloquy.

“I am not a defendant,” Mitchell declared. “I do not have attorneys.” The court “lacks territorial jurisdiction over me,” he argued, to the amazement of his lawyers. To support these contentions, he cited decades-old acts of Congress involving the abandonment of the gold standard and the creation of the Federal Reserve. Judge Davis, a Baltimore-born African American in his late fifties, tried to interrupt. “I object,” Mitchell repeated robotically. Shelly Martin and Shelton Harris followed Mitchell to the microphone, giving the same speech verbatim. Their attorneys tried to intervene, but when Harris’s lawyer leaned over to speak to him, Harris shoved him away.

Judge Davis ordered the three defendants to be removed from the court, and turned to Gardner, who had, until then, remained quiet. But Gardner, too, intoned the same strange speech. “I am Shawn Earl Gardner, live man, flesh and blood,” he proclaimed. Every time the judge referred to him as “the defendant” or “Mr. Gardner,” Gardner automatically interrupted: “My name is Shawn Earl Gardner, sir.” Davis tried to explain to Gardner that his behavior was putting his chances of acquittal or leniency at risk. “Don’t throw your life away,” Davis pleaded. But Gardner wouldn’t stop. Judge Davis concluded the hearing, determined to find out what was going on.

As it turned out, he wasn’t alone. In the previous year, nearly twenty defendants in other Baltimore cases had begun adopting what lawyers in the federal courthouse came to call “the flesh-and-blood defense.” The defense, such as it is, boils down to this: As officers of the court, all defense lawyers are really on the government’s side, having sworn an oath to uphold a vast, century-old conspiracy to conceal the fact that most aspects of the federal government are illegitimate, including the courts, which have no constitutional authority to bring people to trial. The defendants also believed that a legal distinction could be drawn between their name as written on their indictment and their true identity as a “flesh and blood man.”

Judge Davis and his law clerk pored over the case files, which led them to a series of strange Web sites. The fleshand- blood defense, they discovered, came from a place far from Baltimore, from people as different from Willie Mitchell as people could possibly be. Its antecedents stretched back decades, involving religious zealots, gun nuts, tax protestors, and violent separatists driven by theories that had fueled delusions of Aryan supremacy and race war in gun-loaded compounds in the wilds of Montana and Idaho. Although Mitchell and his peers didn’t know it, they were inheriting the intellectual legacy of white supremacists who believe that America was irrevocably broken when the 14th Amendment provided equal rights to former slaves. It was the ideology that inspired the Oklahoma City bombing, the biggest act of domestic terrorism in the nation’s history, and now, a decade later, it had somehow sprouted in the crime-ridden ghettos of Baltimore.

The series of events that led to the prosecution of Willie Mitchell et al are as convoluted, tragic and intermittently absurd as an episode of HBO’s acclaimed Baltimore crime drama, The Wire. Mitchell and company came of age on the streets of West Baltimore, a few miles and a world away from the rejuvenated inner harbor and the tourist attractions near the federal courthouse. According to prosecutors, the group began selling drugs together as teenagers in the mid-1990s, driving up I-95 to New York City, buying half kilos of cocaine in upper Manhattan and cooking it into crack to sell back home. They added heroin to their repertoire a few years later, as well as robbing and killing other drug dealers. By 2002, they were firmly established in what passes as normal enterprise in a hollowed-out economy like Baltimore, where the drug trade often provides more opportunity than legitimate work and the bedrock institutions of family and school have crumbled. They had children out of wedlock with multiple women. They were occasionally arrested, although they never served much time. It was an insular culture where a ruthless prohibition against “snitching” to the police was often more powerful than any law. Even as cities like New York saw the murder rate decline dramatically, drug killings in Baltimore continued at a steady clip.

According to the indictment, the end began on February 18, 2002, in a downtown Baltimore nightclub called Hammerjacks, where Mitchell got into a dispute and stabbed a fellow drug dealer in the back, seriously wounding him. If Mitchell had hoped to get away with this attempted murder, he was swiftly and brutally set straight by the drug dealer’s associates. When police on patrol found Mitchell later that evening, he was on a sidewalk with several men jumping on his head. Mitchell survived the assault, but he remained in serious trouble. The police had issued a warrant for his arrest; more ominously, his enemies had placed a $10,000 contract on his head.

Mitchell probably didn’t know exactly what his enemies had in mind, but he was seasoned enough to realize that they wanted him killed. Ten days after the club incident, prosecutors allege, he made a phone call to an associate of the men who had beaten him up. The associate was a drug dealer named Oliver “Woody” McCaffity. Mitchell proposed that the two men meet that evening for a drug deal.

Neither man came to the meeting alone. Mitchell brought a friend, Shelton Harris. McCaffity brought his sometime girlfriend, Lisa Brown. Brown was a pastor’s daughter, a computer systems analyst and mother of three. Her parents told reporters that she had broken up with McCaffity after learning of his involvement with drugs. But when he called and invited her to the movies, she decided to go along.

The two parties drove to the Park Heights section of Northwest Baltimore. It was a quick meeting. Mitchell and Harris climbed into the backseat of McCaffity’s Infiniti Q-45. Then they shot McCaffity through the head and fired through Brown’s raised right hand into her left temple, where police later found a .357 caliber bullet. The bodies of McCaffity and Brown were left in the car, which rolled downhill and rammed into a nearby tree at the dead-end of the street. Police found it two hours later. A palm print on the car window was later matched to Harris, and McCaffity’s cell phone records revealed calls that night to Mitchell’s phone. Mitchell, suspecting that McCaffity’s associates were going to try to kill him, had apparently decided to kill first. The murder would probably not have attracted much attention, except for the fact that McCaffity’s Infiniti was owned by Hasim Rahman, the recently dethroned heavyweight boxing champion of the world. McCaffity was a friend and business associate of Rahman, causing the ex-champ to quickly call a press conference denying any involvement in the crimes. (Police have never alleged otherwise.)

If the killing of McCaffity and Brown had been a successful preemptive strike, Mitchell was also prepared to kill for more mundane reasons. On March 24, a few weeks after the Mc- Caffity murder, Mitchell allegedly called a former high school classmate named Darryl Wyche and offered to buy some heroin and cocaine from him. Darryl, excited by the prospect of a big sale, agreed. The two made plans to meet in a nearby industrial park around midnight.

Again, neither party came alone. Wyche brought his younger brother Tony, who had reluctantly agreed to drive. Mitchell brought Harris again, as well as two more friends: Shelly Martin and Shawn Gardner.

The Wyche brothers opened the back door of their Honda to let Mitchell and his men into the back seat. Then each received a bullet in the side of the head. The next morning the police found the bodies, seat belts still on. (Mitchell appears to have seen Wyche as an easy source of drugs and cash.)

But Mitchell’s luck was about to end. When Baltimore homicide detectives found the bodies of the Wyche brothers, they assumed they had come across another hard-to-solve drug killing. Then they received an unexpected phone call. It was from Darryl Wyche’s mother-in-law, who reported finding a strange message on her phone. Recorded at 12:43 a.m., the message was four and a half minutes of a group of men with names like “Wayne” and “Shorty” saying things like “Bup-bup-bup-bup-bup, yo, they both fucked.” The call had come from the cellphone of Darryl Wyche.

Wyche’s family and the police soon figured out what had happened: One of the murderers had stolen Darryl Wyche’s phone and forgotten to turn it off. While the killers were driving away, one of them had accidentally pressed the phone’s speed dial button, calling Darryl’s mother-in-law and producing a most unusual piece of evidence: a voicemail confession. With considerable understatement, a lieutenant in the city homicide unit reflected on his good fortune to the Baltimore Sun. “We got lucky,” he said. Willie Mitchell and Shelly Martin were soon rounded up and put in jail.

What would become the fifth and final murder charge in the case of Willie Mitchell and his cohorts took place two months later. This time, only Mitchell’s friend Shawn Gardner was directly involved. It began with a man named Darius Spence, who had found out that his wife, Tanya, was cheating on him with a local drug dealer everyone called “Momma.”

Spence decided to have Momma beaten up severely. To accomplish this, he negotiated with another drug dealer named Willie Montgomery. Would Montgomery be willing to beat up Momma in exchange for money? But Montgomery had another proposition altogether. Beating Momma up didn’t make sense, Montgomery argued, because then Momma would undoubtedly try to kill Montgomery. It was better just to kill Momma outright, and for five thousand dollars, Montgomery would be glad to do the job. Spence said he’d think it over.

Unfortunately for Darius Spence, Montgomery wasn’t interested in waiting around for an answer. Instead, sensing opportunity, Montgomery decided to tell Momma about the hit. If I turn down the deal, Montgomery explained, then Spence will probably just hire someone else to kill you. Therefore, Montgomery reasoned, you should hire me to kill Spence first. Momma was persuaded. (As Montgomery later explained to the prosecutors, “I guess he like that idea better than Darius Spence’s idea.”)

To execute the hit on Spence, Montgomery recruited two associates, one of whom was Shawn Gardner. For the next two months, the three men staked out Spence’s apartment. The plan was for Shawn Gardner and his associate to invade from the basement and carry out the killing, and then run to a nearby getaway car, which was to be driven by Montgomery. Special care was to be taken not to harm Tanya, and they would cover her eyes with duct tape to prevent her from identifying them. Still, Montgomery warned Momma that he couldn’t guarantee Tanya’s safety. “If it’s up to me, she won’t be hurt,” Montgomery told Momma, “but some things could go wrong.” Momma’s reply was to the point: “Do what you do.”

On June 7, 2002, the three men drove to the Spence apartment, a worn red brick building at the end of a cul-de-sac a few miles from Baltimore city. But the hit didn’t go as planned. Darius Spence wasn’t in the apartment, and they didn’t manage to blindfold Tanya. As children played outside the Spence apartment, Tanya burst through the kitchen door on the third floor, screaming, “No! No!” Lifting one leg over the balcony, she tried to climb down to the floor below but lost her grip and fell fifteen feet to the ground, landing a few feet from the children. Gasping for breath, she motioned for them to run away before crawling under the first floor balcony. Moments later, the two killers emerged from the Spence apartment, ran down the steps and stopped a few feet from Tanya, now lying in the fetal position in the dirt and begging for her life. One pulled out a large caliber revolver and fired two shots into Tanya’s chest as the children watched. Then both men ran away.

Unfortunately for the killers, Montgomery wasn’t where they thought he’d be. Somehow the meeting place had gotten confused, and the getaway failed. Police quickly apprehended Shawn Gardner and his associate. Eventually, the law caught up to Montgomery, too.

Gardner was tried, convicted, and sentenced in state court to life in prison without the possibility of parole for the murder of Tanya Spence. Meanwhile, Willie Mitchell and Shelly Martin were charged by the state with the Wyche brothers’ killings and sat in prison for the next year and a half as police and prosecutors assembled their case.

Then, on January 22, 2004—nearly two years after the first four murders—the word came down from the office of U.S. Attorney Thomas DiBiagio: the Willie Mitchell case was going federal, and the government was seeking the death penalty. The Justice Department, DiBiagio explained, was going after “individuals responsible for making life hell in Baltimore.”

For Mitchell and company, this was bad news. Instead of jurors selected from the city pool, Mitchell would likely be judged by an all-white panel of citizens from places like Maryland’s westernmost rural counties or the far reaches of the Eastern Shore. He would face better-funded prosecutors, and was far more likely to get the death penalty. Maryland has only executed five people in the last thirty years, but in 2005, then-Attorney General John Ashcroft was aggressively seeking death sentences. In fact, the Justice Department was even retrying cases in order to win death penalties for crimes like the Spence murder, for which Shawn Gardner was already serving life without parole.

DiBiagio’s office also added a raft of conspiracy charges to the indictment, filed under the federal Racketeering Influenced and Corrupt Organizations (RICO) Act. By alleging that the defendants were part of an organized conspiracy— the so-called “Willie Mitchell organization”—prosecutors could hold all four defendants responsible for any of the crimes the others had committed. That’s why Shelton Harris, who wasn’t originally arrested for the Wyche or the McCaffity and Brown murders, was pulled off the street and charged with the full slate of crimes. It’s also why Mitchell and Harris were charged with the Spence murder, although they were already in jail when Shawn Gardner committed it. RICO is normally applied to members of the mafia and organized crime, and its use sent a clear message: the government was coming at Mitchell and company with everything it had.

The prosecutors bolstered the conspiracy argument by noting that, unlike most Baltimore drug dealers, Mitchell and company had incorporated a legal entity for which they all worked and allegedly funneled proceeds of their drug business into: “Shake Down Entertainment, Ltd.” The group promoted rap CDs and concerts through the company, which even had its own record label, “Shystyville.” Soon, Shystyville CDs with titles like “Pure Shit” became evidence of not just the conspiracy but the crimes themselves, with prosecutors entering into the record lyrics like these:

I watch ya brains fly all over on the bitch next to you
Homeboy it’s up to you I could put this pup to you
Then to pumpin’ you up like a innertube
Send shots that’ll pump up the end of you
Leave you all fat and bloated you know I keep
the Mac loaded then I like ta clack rollin’
That’s why Bo and Weez on lock now and every day on lock down
Niggas getting shot down for runnin’ they mouth clown
Tell me how it feels with a gun in ya mouth now

Prosecutors alleged that the “bitch next to you” was Lisa Brown, who was sitting beside Oliver McCaffity when he was shot through the head, that a “pup” is slang for the largecaliber revolver used in the killing, that the “Bo” on “lock now” was the imprisoned Willie “Bo” Mitchell, and that the reference to “Niggas getting shot for runnin’ they mouth” amounted to witness intimidation. Faced with the prospect of an all-white jury hearing this music in the courtroom, the defense lawyers objected on the grounds that lots of songs have lyrics that “proudly refer to violent retaliation,” offering by way of example country star Toby Keith’s “Courtesy of the Red, White and Blue (The Angry American).”

Nearly two years passed. The wheels of justice were turning, slowly but surely. Then came the memorable hearing in which the defendants debuted the flesh-and-blood defense. After that, everything changed.

A  month after the hearing, Judge Davis took the unusual step of issuing a written opinion denying all of the defendant’s “unusual—if not bizarre” arguments. “Perhaps they would even be humorous,” Davis wrote, “were the stakes not so high … It is truly ironic that four African- American defendants here apparently rely on an ideology derived from a famously discredited notion: the illegitimacy of the Fourteenth Amendment.” One can understand his incredulity that four Baltimore drug dealers might invoke a racist argument that dates back to the nineteenth century. But as it turns out, that’s when the seeds of the flesh-and-blood defense were sown.

In 1878, southern Democrats pushed legislation through Congress limiting the ability of the federal government to marshal troops on U.S. soil. Known as Posse Comitatus, (Latin for “power of the county”) the law’s authors hoped to constrain the government’s ability to protect black southerners from violence and discrimination. The act symbolically marked the end of Reconstruction and the beginning of Jim Crow.

For the next eight decades, black Americans lived under the yoke of institutional racism. But by the late 1950s, the civil rights movement was growing in strength. In 1957, President Eisenhower sent 1,200 troops from the 101st Airborne Division to Little Rock, Arkansas, so that nine black students could safely enter a previously all-white high school. The landmark Civil Rights Act followed in 1964.

These developments horrified one William Gale, a World War II veteran, insurance salesman, self-styled minister of racist Christian Identity theology, and raving anti-Semite. In 1971, he launched a movement whose impact would reverberate through the radical fringes of American society for decades to come. He called it Posse Comitatus, named for the 1878 law he believed Eisenhower had violated by sending the troops to Little Rock. In a series of tapes and self-published pamphlets, Gale explained that county sheriffs were the supreme legal law enforcement officers in the land, and that county residents had the right to form a posse to enforce the Constitution—however they, as “sovereign citizens,” chose to interpret it. Public officials who interfered, instructed Gale, should be “hung by the neck” at high noon.

Gale’s racist beliefs were hardly unique. His singular innovation was to devise a “legal” philosophy that was enormously appealing to disaffected, alienated citizens. It was a promise of power, a means of asserting that they were the true inheritors of the founding fathers’ ideal, a dream they believed had been corrupted by a vast conspiracy that only they could see. Gale’s ideas gave people on the paranoid edge of society a collective identity. It told them what they desperately wanted to hear: that the federal government was illegitimate, and that the legal weapons the state used to oppress them could be turned against the state.

Soon, Posses were sprouting across the country, attracting veterans of the 1960s-era tax protest movement, Second Amendment absolutists, Christian Identity adherents, and ardent anti-communists who had abandoned the John Birch Society because they felt the organization wasn’t extreme enough. Local groups would meet to share literature, listen to tapes of Gale’s sermons, and discuss preparations for the approaching End Times. This extremist stew produced exotic amalgamations of paranoia, such as when Posse members would explain the need for local militias to stockpile weapons in order to defend white Christians from blacks in the coming race war sparked by the inevitable economic collapse caused by the income tax and a cabal of international Jewish bankers bent on global dominance through one world government, for Satan.

While local Posses would periodically confront law enforcement officials in the 1970s, (usually in property disputes), they were often incompetent, and few people were hurt. But things took a serious turn in 1978, when thousands of farmers rallied in Washington D.C. seeking relief from low commodity prices, high interest rates, and farm debt. When Congressional relief attempts failed, some farmers became susceptible to peddlers of the Posse ideology, which preached that the farm crisis had been brought on by the international Jewish banking conspiracy, abandonment of the gold standard and a malevolent Federal Reserve.

By 1982, Bill Gale had flown to Kansas to conduct paramilitary training and indoctrination for splinter groups of disaffected farmers. At night, a country music station in Dodge City broadcast tapes of Gale’s sermons. “You’re either going to get back to the Constitution of the United States in your government,” he intoned, “or officials are gonna hang by the neck until they’re dead … Arise and fight! If a Jew comes near you, run a sword through him.” As Posse ideology rippled across the distressed farm belt, violence followed. Several deadly confrontations between Posse adherents and law enforcement made national headlines; Geraldo Rivera descended on Nebraska to document the “Seeds of Hate” in America’s heartland. By 1987, Gale’s rhetoric had escalated further. He told his followers that “You’ve got an enemy government running around … its source and its location is Washington, D.C., and the federal buildings they’ve built with your tax money all over the cities in this land.”

Hucksters and charlatans prowled the Midwest as the farm crisis deepened, selling desperate farmers expensive seminars and prepackaged legal defenses “guaranteed” to cancel debts and forestall foreclosure. Since the gold standard had been abandoned in 1933, they argued, money had no inherent value, and so neither did their debts. All they had to do, farmers were told, was opt out of the system by sending a letter to the appropriate authorities renouncing their driver’s license, birth certificate, and social security number. That number was allegedly tied to a secret government account held in a secure subterranean facility in lower Manhattan, where citizens are used as collateral against international debts issued by the Fed and everyone’s name is on a master list, spelled in capital letters—the very same capital letters used in the official court documents detailing foreclosure and other actions against them. The capital letter name was nothing but an artificial construct, they were told, a legal “straw man.” It wasn’t them—natural, live, flesh and blood men.

Bill Gale died on April 28, 1988, three months after being sentenced in federal court for conspiracy, tax crimes, and mailing death threats to the Internal Revenue Service. By that time, the farm crisis had begun to recede. Posse ideology simmered for the next few years, morphing into the “Christian Patriot” movement, which sanded down some of the roughest racist and anti-Semitic edges while retaining the core beliefs of Constitutional fundamentalism. The patriots saw themselves as “sovereign citizens,” unlike the “federal citizens” who had been created by the 14th Amendment’s guarantee of equal protection under the law.

The deadly confrontations between federal agents and extremists at Ruby Ridge in 1992 and Waco, Texas in 1993 brought latent anger with the federal government back to a boil. The militia movement of the 1990s built on Posse tenets of county- based, self-organized paramilitary groups led by citizens expressing their basic Constitutional rights. Most groups stuck with conducting survivalist training camps and filing bogus liens against houses owned by local judges. But a few did much more.

In 1993, a Michigan farmer and survivalist named James Nichols was pulled over for speeding. Instead of simply paying the fine, he argued in court that his “sovereign citizen” status made him immune to prosecution. That same year, James’ brother Terry tried to pay off a $17,000 debt with a fake check issued by a radical “family farm preservation” group run by Posse adherents. Two years later, Terry Nichols helped to bring the Posse’s anti-government hatred to its ultimate fruition. On April 18, 1995, he and a friend named Timothy McVeigh loaded 108 fifty-pound bags of ammonium nitrate fertilizer into a Ryder truck. The next day, McVeigh bombed the Murrah federal building in Oklahoma City, killing 168 people on the second anniversary of Waco.

After the attack, the Feds began cracking down on white supremacist groups, including one called the “Montana Freemen,” who were, in the words of hate-group expert Daniel Levitas, “the direct ideological descendants of the Posse Comitatus.” (Levitas’ book, The Terrorist Next Door, contains the definitive account of Bill Gale and the Posse.) The Freemen were arrested in their isolated compound after a threemonth standoff with the FBI. At trial, they filed an array of bizarre documents citing the Fed, the gold standard, the 14th Amendment, and the Uniform Commercial Code, but to no avail. They were sent to the maximum security “Supermax” federal prison in Florence, Colorado, where they remain today.

But the appeal of their anti-government dogma didn’t disappear. The Freemen continued to attract sympathizers outside Supermax walls. Some collected the documents the Freemen filed during their trial and began offering them for sale via adver tisements in “America’s Bulletin,” a newsletter espousing Posse- style anti-government theories that is widely distributed throughout the prison system by white supremacists.

In October 2004, a prisoner named Michael Burpee arrived at the Maryland Correctional Adjustment Center in downtown Baltimore. Burpee had recently been convicted in Florida of trafficking PCP to Maryland. Hoping for leniency, he pled guilty, only to receive a twenty seven-year prison sentence dictated by harsh federal sentencing guidelines. Desperate for a way out, he began listening to someone—presumably a fellow prisoner—who explained how the charges were all part of a secret government conspiracy against him. Then Burpee was brought up on new federal drug charges in Maryland, and shipped north. He carried with him a pile of documents that were remarkably similar to those that had been filed by the Montana Freemen.

In Baltimore, Burpee found a group of inmates at the margins of society, people like Willie Mitchell and company who were staring at the full force of the federal government. As one defense attorney representing a flesh-and-blood defendant put it, they “saw a freight train coming and felt three feet tall.” Soon the unorthodox legal filings and courtroom outbursts began to multiply. It was, one public defender later explained, “like an infection that was invading our client population of pre-trial detainees.” Burpee appears to have been patient zero in the epidemic. For over a year, he harangued his lawyers and judge about the conspiracy and spread the word in the Baltimore lockup. Then, in a stroke of bad luck for the public defender’s office, the U.S. Attorney’s office decided to drop the charges against Burpee—perhaps reasoning that he wasn’t worth the hassle considering that he had already been sentenced to twenty-seven years. For Burpee’s peers, the decision imbued the flesh-and-blood defense with legitimacy and the hope of freedom.

Before long, the relatives of the defendants were scanning Web sites like http://www.redemptionservice.com, which offers maps showing how Satanic runes were secretly incorporated into the street plan of Washington, D.C., and a deluxe package of instructions for renouncing one’s social security number for only $3,900, payable by check or money order.

Like the Midwestern farmers before them, the Baltimore inmates were susceptible to the notion that the federal government was engaged in a massive, historic plot to deprive them of life, liberty, and property. Such suspicions are prevalent in certain pockets of the black community—that year, a study from the Rand Corporation found that over 25 percent of African Americans surveyed believed the AIDS virus was developed by the government, and 12 percent thought it was released into the population by the CIA. And black separatist groups like the Nation of Islam—also fond of conspiracy theories—have long cultivated members through the prison system; some of these groups have explicitly adopted the language of constitutional fundamentalists. Given these developments, Levitas told me, “I’m surprised this didn’t happen sooner.”

This, then, was how Willie Mitchell came to draw on the accumulated layers of three decades of right-wing paranoia and demand that his case be dismissed “in accord with … House Joint Resolution 192, and Public Law 73-10”—laws that involved the abandonment of the gold standard and the Federal Reserve. And it explained why Shawn Gardner kept insisting that he be addressed as “Shawn-Earl: Gardner,” rather than the capital-letter SHAWN GARDNER printed on the indictment: he thought that if he could convince the court to call him by his “natural” name, it would be tantamount to admitting that the charges had been filed against someone else.

On the morning of January 10, 2006, two months after the first flesh-and-blood hearing, Gardner returned to Judge Davis’s courtroom. Moments after Davis arrived, Gardner stood up. “I object,” he said, over and over, until Judge Davis had finally had enough. “Do you know what you’re doing?” he asked Gardner. “You are committing suicide in broad daylight. There are public suicides in this country far too often. People jump off the Golden Gate Bridge, the Brooklyn Bridge. People walk into their workplaces with a gun and put the gun up to their head and pull the trigger. People slash their wrists. I don’t want you to join that community, but that’s what you’re doing, sir.”

Gardner tried to argue that the court had no power over him under “common law.” “At common law,” Judge Davis replied, “you were property. You were bought and sold just like those Timberlands on your feet today can be bought and sold. That’s what your ancestors were, some of them, and that is what my ancestors were, some of them.”

“You have invoked ideas formulated and advanced by people who think less of you than they think of dirt,” Davis continued. “The extremists who have concocted these ideas that you are now advancing in this courtroom are laughing their heads off. You are giving them everything they ever wished for. They should be paying you to do what you are doing. They are going to make you the poster child for their movement. When you complete this suicide, they will honor you because you are doing their work, better and more effectively than any of them ever dreamed they could do. Some of them—” “I object,” said Gardner, interrupting. “The government wants to do the same thing anyway. So what’s the difference?”

Gardner, unrepentant, was escorted from the courtroom. And so the tenets of Posse Comitatus continued their long, strange journey, from the racist, hate-filled mind of William Gale to four black defendants on trial for their life in Baltimore federal court.

A  little more than a year after the November 2005 hearing, the flesh-and-blood phenomenon took another twist. A key part of the conspiracy indictment against Mitchell et al was the allegation that the defendants acted together in pursuit of criminal goals. The seemingly choreographed speeches and the identical filings, all submitted on the same day and mailed by the same person, suggested that the four defendants were going to great lengths to coordinate their actions, despite being housed in separate prison facilities and having no obvious means of communication. Ergo, evidence that the conspiracy was continuing in jail. The U.S. Attorney’s office also added new charges of felony obstruction of justice, citing the disruptive nature of the fleshand- blood defense. The prosecutors weren’t just rejecting the defense as an argument for innocence. They were saying that it was, itself, a crime.

Undaunted, Mitchell and company continued making courtroom speeches and filing more nonsensical motions. One, for instance, claimed that Judge Davis’ court only had jurisdiction over crimes committed in federally owned “forts, magazines, arsenals, dockyards, and enclaves.”

None of these arguments had a prayer of overturning the charges. But they had an impact nonetheless. They made a long, complex trial longer and more complex still. Seeking the death penalty is rightfully arduous—it requires legal justifications for the penalty itself, enhanced scrutiny over jury selection, an additional penalty phase after a conviction, and so on. Conspiracy charges create further legal burdens. And the way Mitchell et al chose to deal with their attorneys— not dismissing them outright, but asking them to sign a peculiar “contract” that would essentially prohibit them from mounting a defense—created more problems. If the defendants weren’t dealt with carefully, they might be able to appeal by claiming that they had been inadequately represented. The last thing Judge Davis wanted was for an appellate court to throw out a verdict and send the case back to Baltimore to start all over again. According to a source close to the court, dealing with the flesh and blood defense has been “one of the greatest challenges Davis has faced in twenty years as a judge, by far.”

By mid-2007, the federal prosecutors were starting to run low on a vital resource: time. As years go by, memories fade, police officers retire or transfer, informants change their mind, and juries wonder, why, if the case is so straightforward, it took so long to make. On September 6, 2007, prosecutors withdrew the death penalty for all four defendants.

Nobody in the Baltimore federal courthouse is willing to state, or even speculate on the record, that Mitchell and his cohorts may have averted death with the flesh-and-blood defense. There are other possibilities involving evidence, witnesses, and Justice Department policy. But the elaborate processes of federal capital cases weren’t built to accommodate farcical pro se filings and challenges. Traffic offenses, tax cases—even farm foreclosures—are one thing. When the end goal is execution, even the most ludicrous defenses are taken seriously.

On January 8, 2008, the case of United States of America v. Willie Mitchell et al convened once again in the main courtroom of the federal courthouse. The lawyers arrived first, chatting in the manner of people who had spent nearly four years and counting on the odyssey of this case. The defendants came next. While Shawn Gardner wore the blue work shirt of a lifer in state prison, Willie Mitchell sported comfortable baggy jeans and a stylish black shirt. Mitchell sauntered to his table, and spied the lone spectator in the courtroom’s auditorium-style gallery of one hundred- plus seats, a slender black woman who looked to be in her late twenties. His eyes lit up as he smiled and mouthed “How are you?” “I’m good, I’m good” she murmured. “Your new lawyer—get his card!”

Judge Davis arrived last, emerging from a wooden door behind the bench, beneath oil portraits of judges from days gone by. The hearing will be short, he said; the purpose is to establish a schedule for future motions, and ultimately the trial. Davis and the lawyers spent the next twenty minutes trying find eight weeks of available courtroom time for ten busy lawyers plus the judge. Then, apropos of nothing, Shelton Harris stood up. “Good morning your honor,” he began. Davis saw where this was going and cut him off. “I haven’t recognized you yet, Mr. Harris. You’ll have time to talk later,” he said. “I accept your offer,” Harris replied softly, and sat down.

The scheduling discussion continued; Mitchell rested his head in his arms as though bored. Finally, Judge Davis allowed Harris to speak. Harris launched into the now familiar oration—”I request you, the judge, close the accounts…” He spoke rapidly in a low, gravelly voice, as if he’d worked hard to memorize the speech and didn’t want to leave anything out.

Harris finished, sat, and Judge Davis turned to the defendants. The speech you just gave has no legal meaning whatsoever, he said sternly. They were words in the English language, but they have no meaning as a matter of law. If, in future proceedings, you persist—even politely—in making these speeches, you face a severe risk of being expelled from the courtroom. The court also may conclude that you are waiving your right to appointed counsel, in which case you would have to represent yourself. That would be a sad day. “We are in recess,” Davis said. He turned back toward the door to leave.

Then several things happened at once. Shawn Gardner, handcuffed, slumped in the arms of the federal marshals, who seized him beneath his armpits and dragged him across the courtroom toward the door. Willie Mitchell raised his right hand to speak, intent on giving his version of Harris’ speech, but the marshals grabbed his arm and forced it down behind his back toward his left wrist, which was already cuffed. Mitchell struggled and yelled at his lawyer, “They got my arm in a chicken wing!” The marshals forcibly moved Martin and Harris toward the door. Judge Davis watched with consternation as they were dragged from his court.

Willie Mitchell and company won’t go on trial until September, if then, and they won’t face the death penalty, even though they probably deserve it if anyone does. But they will probably be convicted and spend the rest of their lives in federal prison, never to be heard from again, because in the end, the flesh-and-blood defense is no defense at all. The 14th Amendment didn’t revoke Shawn Gardner’s natural citizenship— it gave him protection under the law, and paved the way for another black man to judge his case. There’s no international cabal of Jewish bankers conspiring against him— one of his lawyers, a professor at Howard University Law School, is Jewish. The secret histories and grand conspiracies that have fueled decades of right-wing paranoia, morphing to accommodate one doomed cause after another until finding an unlikely temporary home in a Baltimore lockup, are lies and nothing more.

As the marshals shoved the four men toward the courtroom door, back to the prison they’ll never leave, they shook their heads and looked at each other smiling, as if to say right, right, isn’t it always just like this? One of them let out a chuckle that rose above the din. Judge Davis turned to the court reporter. “Let the record show,” he said, “that Mr. Harris is laughing.”