Certain inalienable privileges and immunities

Yesterday, the Supreme Court incorporated the freedom to bear arms into the set of liberties it will enforce against the state governments through the Fourteenth Amendment. I would just like to know what took them so long. According to the Fourteenth Amendment, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” In nineteenth century terminology, “privileges and immunities” basically meant “freedoms.” One of those freedoms was meant to include the freedom to bear arms — particularly since the Republicans wanted freed blacks to be able to vote Republican without getting lynched. Under the old terminology, what we now vaguely refer to as “rights” were subdivided into four categories:  1) Rights, 2) privileges, 3) powers, and 4) immnunities.

A “right” meant a bestowing of duty on others. For example, if you had a right to property, that meant that your neighbors had a duty to stay off your land. It also meant that you could sue your neighbors for trespass if they violated this duty. Due to its propensity to generate legal claims, a “right” was likewise called a “claim-right.”

Nowadays we tend to consider the word “privilege” to mean a gift, or an entitlement that the government may choose to deny us. For example, authoritarians will often tell you that “driving is only a privilege,” implying that they can take away your driver’s license if they want. But under the old terminology, a “privilege” just meant the absence of duty. That is, a “privilege” owned by your neighbor meant the absence or diminishment of your own “rights.” This freedom from duty implied a liberty to engage in activity, without the legal penalty incurred from claim-rights. If your neighbor bought some crops from you and if the two of you never specified how they would be delivered, the neighbor would have a “privilege” to come onto your land at a reasonable hour to pick them up himself. Your property “right” was powerless against this freedom he possessed, and you could not sue him for trespass.

A “power” was basically a potential right, or the ability to create rights in various circumstances via discretion. For example, an owner with the “right” to land would typically also have the “power” to sell his land, thereby creating a “right” for the buyer. For the most part, though, the government was the one with “power.” So if the legislature made a law requiring everyone to salute Drew Justice when he walked by on the sidewalk, it had used its power to create a right on the part of either Drew Justice or the government, depending on whether the law was meant to be a civil remedy or a criminal penalty. Whereas Drew Justice or the government prosecutors would obtain a right once the law was passed, all of the citizens would be liable under the government’s power. They would have to salute Drew Justice. “Power” for one entity meant liability for others. Liability referred to the potential to be subjected to power.

An “immunity” meant a lack of liability, basically a freedom from power. An immunity meant that another individual did not have power over you, even though he might have otherwise in the absence of your immunity. The city government might have the “power” to re-zone your real estate, but if your house is already being constructed on it, you are likely “immune” to the government’s power and will have to be grandfathered into the new law. Likewise, if all the citizens had an immunity against saluting, then neither Drew Justice nor the government could hold them accountable for failing to do so. And that is where the Privileges and Immunities clause comes in!

Using the aforementioned complex legal mumbo jumbo, we can understand the purpose of the Fourteenth Amendment. The amendment grants the citizens freedom from duty (privileges) and freedom from power (immunities). The amendment does not, of course, abolish all duty or all power, but only those duties and powers held by the “state[s]” that would “abridge the [freedoms] of citizens of the United States.” The Republican congressmen who crafted the amendment specifically stated on the floor of Congress that they meant to extend the freedoms embodied in the Bill of Rights to state citizens.

But instead of enforcing the Privileges and Immunities clause as it was intended and as the plain text requires, federal judges basically ignored the clause. Sure, they offered a few minor protections under the clause, such as the “right to travel,” but for the most part the courts decided to enforce Bill of Rights freedoms via the more vague “due process” clause. What this decision basically meant was that the courts could enforce some freedoms that they liked, but ignore other freedoms that they did not particularly care about.

This limiting decision was a recipe for disaster. In my mind, the Bill of Rights is a complete unit. If you negate one freedom such as the freedom to bear arms but nonetheless guarantee the other freedoms, in some ways you are actually making society worse off. For example, the freedom of speech guarantees the Leftist demogogues the freedom to speak their poison, thereby creating a false sense of liberty while the ordinary citizens remain prohibited from taking up arms to defeat their tyranny. You could probably make the same argument regarding all of the Bill of Rights freedoms. For example, it took a while for the courts formally to incorporate the Fifth Amendment “takings” restriction against the states. If you have the freedom of speech without the Fifth Amendment guarantee against takings of property, then some well-spoken tyrant can tell the public that all they need to do is vote for him (or give money to him) and he will take your land and give it to others. As yet another example, if the government cannot take your property without paying you but may nonetheless quarter troops in your home and turn it into a military base, you are no worse off than if they had merely taken your property. Either give us freedom or give us slavery, but do not give us pretend freedom! The Bill of Rights is a complete unit, something quite probably inspired by God, and not something for statists to distribute to the masses piecemeal.

Someone might at this point wonder, “But why are the freedoms called ‘rights’ in the Bill of Rights and ‘privileges and immunities’ under the Fourteenth Amendment?” That is a good question. One possibility is that the legal terminology simply evolved after the Bill of Rights was passed. Even with a firm distinction between the four categories of rights, the differences between the categories can become a bit blurred, and frequently an individual will possess the entitlements of more than one category at the same time. For example, whereas a tenant would basically only have a right to certain property, a full owner would generally have a right to the property and the power to sell. Another possibilitiy is that the Founders generally despised government and believed that all God-given freedoms were sufficient to create a legal “claim-right” against the government. Under this latter possibility, the term “right to bear arms” should imply that the government has an affirmative duty to protect our freedom to bear arms. If the government violates these rights, then presumably society could enforice this claim-right in the court of divine justice, as the Founders did against King George. But ultimately, I am not really sure which of these two possibilities is the correct reason for the terminology.


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