Privileges and Immunities

[Pertinacious Tom]

Many US citizens may read the 14th amendment to our Constitution and assume it broadly protects the "privileges and immunities" of individuals.

Actually, it doesn't.

That part of the 14th amendment was eviscerated by some racist Reconstruction Era Supreme Court cases. It isn't used.

The primary argument advanced by the petitioners in the Chicago Gun Case is that the court should take another look at those cases, and at reinstating the privileges and immunities clause.

I'm having trouble thinking of something more ironic than this:

The NAACP has released a legal brief in the case, in which they argue that the racist Reconstruction Era precedents should continue to stand, and the court should take a different route in applying the second amendment to the states. They have their reasons, and they are not racist or crazy reasons, but it's still just plain weird.

 

[Pertinacious Tom]

So the Supreme Court is about to consider one of the amendments in the Bill of Rights, two significant parts of the 14th amendment are implicated, with implications in turn for all of our civil rights legislation.

The situation has caused the NAACP to come along and say we shouldn't disturb the ancient legal precedents of the KKK. :blink:

And Jack is a more interesting "political" topic? Sorry to bore everyone!

akaGP, are you ever going to tell me what you really think about the second amendment?

 

[Pertinacious Tom]

I was really looking forward to making fun of the Brady Center's brief, but it's so lame as to barely be worth it.

For those who haven't been following the issue, the question the Supreme Court has agreed to address is this:

Whether the Second Amendment right to keep and bear arms is incorporated as against the States

by the Fourteenth Amendment's Privileges or Immu-

nities or Due Process Clauses.

They pretty much ignored that question, and launched into answering how the Court should approach the standard of review appropriate to the second amendment.

This is what the "question presented" page of their brief says:

Amici curiae will address the following question: Whether governmental regulations of the exercise

of the Second Amendment right are subject to strict

scrutiny, or whether such regulations are subject to a

more deferential standard of review for reasonableness.

Judges, especially Supreme Court Justices, don't like it when you ignore the question presented and answer another one. The only thing they might like less is being told how they should approach their job. I hope the Brady Bunch didn't pay much for that brief.

 

[Dorado]

Tom

You're doing good work here. The silence of the usual whiney suspects speaks volumes.

You want Irony ???

Even California A.G. Jerry "Moonbeam" Brown wrote a "friend of the court" brief backing the NRA's position for the Chicago case.

Good on ya, Moonbeam!

 

[Pertinacious Tom]

Tom
You're doing good work here. The silence of the usual whiney suspects speaks volumes.

You want Irony ???

Even California A.G. Jerry "Moonbeam" Brown wrote a "friend of the court" brief backing the NRA's position for the Chicago case.

Good on ya, Moonbeam!

I actually kind of like Moonbeam, as politicians go. That's pretty good irony, but I still say the NAACP supporting the Reconstruction Era court takes the prize.

Besides, the NRA's position is essentially the same as the NAACP's: due process clause arguments. It would be a much closer contest for the prize if Moonbeam came out and said that the Second Amendment Foundation is right, that the words "privileges and immunities" were intended to have meaning, and that the Supreme Court should fix their ancient mistake.

 

[Pertinacious Tom]

Another intramural gun rights squabble is going on, with the NRA playing its usual role of cautious compromiser. They are asking for oral argument time before the Supreme Court to make their "due process" case for 2nd amendment incorporation. Gura doesn't want to give them any time, saying he will make his privileges and immunities argument and will be prepared to address due process questions from the court.

 

[Pertinacious Tom]

Another intramural gun rights squabble is going on, with the NRA playing its usual role of cautious compromiser. They are asking for oral argument time before the Supreme Court to make their "due process" case for 2nd amendment incorporation. Gura doesn't want to give them any time, saying he will make his privileges and immunities argument and will be prepared to address due process questions from the court.

Just as well that he lost that fight. Scalia basically told Gura to shut up with that privileges and immunities nonsense. Thomas wrote separately to say Gura was right but no one joined him.

A couple of years ago, we celebrated a decade of privileges or immunities.

It may not seem like it, but the Privileges or Immunities Clause has come quite a ways in the past decade. The support for it on some level has doubled in the Supreme Court.

That's a very rosy view of the fact that "doubling on some level" means Thomas and maybe sometimes Gorsuch.

Neither of which are why I'm here. Just reading the Firearms Policy Coalition suit against NY's gun ban and saw this:

61. The keeping and bearing of arms is a fundamental right that is necessary to our system of ordered liberty, and is additionally a privilege and immunity of citizenship, protected by the Fourteenth Amendment

That made me chuckle. We still don't have any privileges and immunities under the 14th amendment and that's really unlikely to be the first one. But good try!

 

[Gouvernail]

Infringed


It really is a simple word.

 

[Pertinacious Tom]

The problem with your proper cause case is that I can see no language in the 14th Amendment that "incorporates" the bill of rights to the states.

Look a little harder.

 

[Pertinacious Tom]

Argue all you want but your handpicked 2nd amendment judge-buddies don't agree with you - at all.

Rethinking the constitutional defense of reproductive rights after Dobbs via the Ninth Amendment



I'd argue that control over our own bodies is right there in the 14th amendment as well. Privileges and immunities. Sodomy has to be one of those.

You think? This part of the Bruen decision sounds to me like Thomas and I are on the same page about whether keeping and bearing arms is a "privilege and/or immunity" of people, even dark skinned ones.

Even before the Civil War
commenced in 1861, this Court indirectly affirmed the im-
portance of the right to keep and bear arms in public. Writ-
ing for the Court in Dred Scott v. Sandford, 19 How. 393
(1857), Chief Justice Taney offered what he thought was a
parade of horribles that would result from recognizing that
free blacks were citizens of the United States. If blacks
were citizens, Taney fretted, they would be entitled to the
privileges and immunities of citizens, including the right
“to keep and carry arms wherever they went.” Id., at 417
(emphasis added). Thus, even Chief Justice Taney recog-
nized (albeit unenthusiastically in the case of blacks) that
public carry was a component of the right to keep and bear
arms—a right free blacks were often denied in antebellum
America.
After the Civil War, of course, the exercise of this funda-
mental right by freed slaves was systematically thwarted.
This Court has already recounted some of the Southern
abuses violating blacks’ right to keep and bear arms. See
McDonald, 561 U. S., at 771 (noting the “systematic efforts”
made to disarm blacks); id., at 845–847 (THOMAS, J., con-
curring in part and concurring in judgment); see also S.
Exec. Doc. No. 43, 39th Cong., 1st Sess., 8 (1866) (“Pistols,
old muskets, and shotguns were taken away from [freed
slaves] as such weapons would be wrested from the hands
of lunatics”).
In the years before the 39th Congress proposed the Four-
teenth Amendment, the Freedmen’s Bureau regularly kept
it abreast of the dangers to blacks and Union men in the
postbellum South. The reports described how blacks used
publicly carried weapons to defend themselves and their
communities. For example, the Bureau reported that a
teacher from a Freedmen’s school in Maryland had written
to say that, because of attacks on the school, “(b)oth the
mayor and sheriff have warned the colored people to go
armed to school, (which they do,)” and that the “[t]he super-
intendent of schools came down and brought [the teacher]
a revolver” for his protection. Cong. Globe, 39th Cong., 1st
Sess., 658 (1866); see also H. R. Exec. Doc. No. 68, 39th
Cong., 2d Sess., 91 (1867) (noting how, during the New Or-
leans riots, blacks under attack “defended themselves . . .
with such pistols as they had”).

Wresting weapons from "lunatics" has recently come to mean "and cannabis users" as we had a Judge Accept the Biden Administration's Dubious Argument for Banning Gun Possession by Marijuana Users

 

[Raz'r]

You think? This part of the Bruen decision sounds to me like Thomas and I are on the same page about whether keeping and bearing arms is a "privilege and/or immunity" of people, even dark skinned ones.





Wresting weapons from "lunatics" has recently come to mean "and cannabis users" as we had a Judge Accept the Biden Administration's Dubious Argument for Banning Gun Possession by Marijuana Users

Of course they agree wrt #2.

But this isn’t about #2, it’s about 9 & 14, unless you are changing your mind. You said it was about the right to privacy and personal choice regarding reproductive decisions.

 

[Pertinacious Tom]

Ownership of your own brain seems like something that could be among the privileges and immunities enjoyed by the people.

I mean, if we had any.

...
On the surveillance side, the Chinese state electric grid company is already requiring tens of thousands of its workers to wear Entertech helmets embedded with brainwave-measuring sensors to detect fatigue and other mental states. Such electroencephalogram (EEG) monitoring technology also has been developed by the Australian company SmartCap. It is used by more than 5,000 consumers around the world, including mining and trucking companies, to detect employee fatigue on the job. The San Francisco–based company Emotiv has developed EEG earbuds that can detect when an employee's focus on a task is flagging and suggest that he take a break.


Farahany describes a scenario in which a boss calls an employee wearing Emotiv earbuds to discuss a contract renewal with a 2 percent raise. Although the company would be willing to increase the employee's pay up to 10 percent to keep her, the earbuds detect that she is happy with the proposed raise. Any salary negotiation would essentially be over before it begins. "Even the staunchest freedom-of-contract libertarian," Farahany argues, "would question the fairness of this negotiation."

...

If cognitive liberty entails the right to enhance one's mental capacities, does it also include the right to diminish them? Here Farahany gives a somewhat qualified yes: People have the right to use drugs that arguably diminish some of their mental capacities so long as they do not interfere with the rights and liberties of other people or with the duties users owe to others. An example of the latter would be excessive drug use that makes a parent unable to care for a dependent child.


Farahany notes that the social costs of cognitive diminishment are "used to justify laws against drug abuse," which can have perverse consequences. Farahany, a longtime migraine sufferer, uses prescription opioids to control her pain. She points out that only 8 to 12 percent of people who take prescribed opioids for chronic pain become addicted. She also observes that the restrictive opioid prescription guidelines that the Centers for Disease Control and Prevention issued in 2016 have resulted in the "systemic undertreatment of pain, with consequences that are every bit as devastating as addiction."


Farahany does not address another horrific result of the restrictions on opioid prescriptions: the soaring number of overdose deaths as many opioid users turned to dangerous black-market drugs laced with fentanyl and other compounds. In addition to making drug use more hazardous, prohibition clearly violates the cognitive liberties of recreational drug users who do not interfere with other people's rights.

...

More recently, the 2020 NATO report Cognitive Warfare declared that "the human mind is now being considered as a new domain of war." To counter the weaponization of neurotech, Farahany argues for updating international anti-torture covenants to include a ban on the use of technologies "intended to obliterate our personalities, identities, and mental functioning."

Farahany also covers recent advances in brain–computer interfaces (BCI) by companies such as Synchron and Elon Musk's Neuralink. Neuralink's implantable BCI tipped with more than 1,000 electrodes is the size of a quarter. Synchron's BCI is a small mesh tube that is implanted in brains through blood vessels via a catheter. In January, Synchron reported that four paralyzed patients implanted with its device for more than a year were able to text, email, manage personal finances, shop online, and communicate care needs, all using only their minds.

Looking further into the future, Farahany takes seriously the transhuman possibilities of BCIs that could record and map the entire structure of a person's brain, including all memory traces. If that copy could be uploaded to run on appropriate hardware, it would offer users the possibility of digital immortality.

...

But what if you forget your digital immortality password?

 

[VhmSays]

Ownership of your own brain seems like something that could be among the privileges and immunities enjoyed by the people.

I mean, if we had any.



But what if you forget your digital immortality password?

What if you run out of money to pay the server fees? You got to pay for storage of that data, software and and communities you can access. What happens?

 

[Pertinacious Tom]

What if you run out of money to pay the server fees? You got to pay for storage of that data, software and and communities you can access. What happens?

I think that at some point, you do run out. Forever is a long time.

My wife lost her brother a few years ago. There's no way she'd pay to store his brain data for a week, even if she could easily afford it. I lost my brother a year ago. I'd pay for his brain data. Maybe the next generation would keep paying. But after a few generations, don't they start looking at the bill and asking, "Who?"

 

[VhmSays]

I think that at some point, you do run out. Forever is a long time.

My wife lost her brother a few years ago. There's no way she'd pay to store his brain data for a week, even if she could easily afford it. I lost my brother a year ago. I'd pay for his brain data. Maybe the next generation would keep paying. But after a few generations, don't they start looking at the bill and asking, "Who?"

Billionaires and their legal teams will surely find a way. The world's would be their playgrounds while the poor and merely rich would would hand over whatever they have in advance to corporations to live a few days more, even in virtuality.