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.

The Constitution and Personhood

One of the claims that appears to be important to the anti-abortion position is that embryos have rights. It may then be presumed that when the rights of the embryo are in conflict with the rights of the putative mother, some balanced resolution must be reached. Since abortion ends the existence of the embryo and, hence, any ability of the embryo to exercise any rights, it would seem that any reasonable balance precludes abortion entirely. In fact, some exponents argue that the rights of a pregnant woman can be quite significantly limited, in order to ensure that she carries her pregancy to term. If, however, embryos lack rights, then no such balance need be struck, and the regulation of abortion can proceed on other grounds.

The rights of citizens and residents of the United States are specified, or at the least adumbrated, in the Constitution of the United States and a number of the amendments thereto. I have attached the entire text of the Fifth Amendment, and the first section of the Fourteenth Amendment, as containing passages relevant to the instant controversy. One of the notable points is that, while some of the rights or privileges alluded to in the Fourteenth Amendment belong to citizens of the United States, while the equal protection of the laws is extended to all persons “within its jurisdiction.”

In other essays, I have argued that an embryo is not, on the face of it, a human being, and that the two conditions are mutually exclusive. That is, a human being isn’t a human being until it has been born, while an embryo ceases to be an embryo when it is born. If find that the language of the Fourteenth Amendment suggests that the same position is held by the Constitution. The amendment states that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The plain meaning of this statement is that one is neither a citizen nor a person until after one has been born. Since all of the rights granted by the Constitution accrue to persons, and some only to citizens, it is obvious that there are no rights under the Constitution accruing to an embryo.

I think a simple illustration will make this clear. A citizen is a person “born or naturalized in the United States.” This principle, which is known as the jus soli, the “law of the soil,” means that the fundamental criterion for American citizen is birth in this country. It is well known that a pregnant Mexican citizen may enter the United States, have the baby in California or New Mexico, and thus gain a claim to U.S. citizenship for the child. But birth is a critical element in this scenario. A German citizen woman may come to the United States, become pregnant here, spend eight months of her pregnancy in the United States, and lose any claim to U.S. citizenship for the child by giving birth in Germany. In other words, no claim to citizenship is accrued during time spent as an embryo in the United States.

The critical Constitutional dividing line between person and non-person, eligibility for citizenship and lack of eligibility, is the actual birth. Thus, prior to birth, an embryo has no Constitutional rights, although, immediately upon being born alive within our boundaries, a baby acquires certain rights.

Due Process in the Fifth and Fourteenth Amendments

Article [V]

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Article XIV

Section 1. All 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.