Happy Independence Day, George Will!

I used to read George Will's columns all the time. That was when I subscribed to Newsweek, and Will's column was one of the many items that magazine picked up from its parent newspaper, The Washington Post. I'm not such a fan anymore, partly because George turned out to be a hypocrite on family values, like so many "conservatives," and partly because I now prefer The Economist to any of the American newsmagazines.

This column, from April 28th, is pretty good, however. I might note that one of the Senators on the Judiciary Committee actually asked Elena Kagin one of Will's suggested questions. (It was the one about Thurgood Marshall's statement that "You do what you think is right and let the law catch up." She dodged the question by pointing out that, if confirmed, she would be Justice Kagin, not Justice Marshall. That's trivially obvious; the point is: Would she make decisions on the basis of Justice Marshall's dictum?

Will supports Justice Scalia's notion that the Constitution doesn't change, and that, in fact, the purpose of constitutions is to prevent change. That's fair enough, but this whole original intent idea founders, it seems to me, on one fact. From the text of the Constitution, as ratified, it is clear that the intent of the framers and ratifiers was to count slaves as 3/5ths of free people. It is also clear that no one, no one, at the Constitutional Convention actually liked this provision. The Southerners wanted to count their slaves as full people, not out of regard for human rights, but because that would have given them a lock on the House of Representatives, as well as the Senate. Many Northerners didn't want to count the slaves at all, because the slaves were not allowed to vote and lacked the other rights of people included in the citizenry. In other words, the original intent was to make a compromise between incompatible positions, so that the Constitution could be completed. I don't see where a modern judge gets a lot of guidance from that, except for Abraham Lincoln's point: It's all about the Union.

Privileges, Immunities, and Guns

I was going to say that I don't like George Will very much. But I'm going to modify that sentiment to say that I don't read George Will very often, so I don't really know if I like him or not these days. For many years I subscribed to Newsweek, and Will's column (recycled from the Washington Post) was a mainstay of that magazine. His column would show up occasionally in our local paper The Gazette, but I came to avoid everything but the sports and the comics in that rag.

Be that as it may, today I read George Will's column in the Washington Post online, on entitled "How the Constitution, Filtered by the High Court, Affects Guns." I was expecting the usual right-wing argument about everyone's right to carry a gun in order to kill federal officers if they ever come to force you to give up your coal-burning furnace. (In my view, by the way, inciting people to carry guns for the purpose of opposing the authority of the federal government is treason or damned close to it.) But no! Will's column discusses whether the Supreme Court should use the "equal protection" clause or the "privileges and immunities" clause of the 14th Amendment to dispose of the gun laws of Chicago and Oak Park, Illinois.

This is a much more interesting argument. The chain of the argument goes something like this:

The Bill of Rights didn't create a bunch of rights by fiat of the Federal Government, but codified a number of pre-existing privileges - the rights of Englishmen, if you will. Therefore, the Bill of Rights is a list (an incomplete list) of basic human rights.

The Fourteenth Amendment stated two things: We are all entitled to equal protection of the laws, and the states have to recognize the common "privileges and immunities" of Americans. Will says, and I think he's right in this, that the Bill of Rights is a good starting point if you need a catalog of privileges and immunities.

Therefore, all of the protections of the Bill of Rights, which acted to restrict the Federal Government, were extended to the states by the Fourteenth Amendment. And I agree with Will that this was the intent of the authors of that amendment, and that their intent was frustrated by the Supreme Court in the 1870s. The extension of the Bill of Rights to the states, a process known as incorporation, was, in fact, mostly carried out, decision by decision, by the Warren Court in the 1950s and 1960s.

Will wants the court to use the privileges and immunities clause because, taken together with the 10th Amendment, it provides a framework for asserting all sorts of individual rights against both the state and the Federal governments. I'm not sure I like that, but I do think that the equal protection clause doesn't provide a very good basis, logically speaking, for overruling an ordinance that prohibited everyone from having a handgun.