Center for Constitutional Jurisprudence, Eastman and Meese, Amicus in McDonald v. Chicago

November 24th, 2009

Check out the Amicus Brief of the Center for Constitutional Jurisprudence, authored by Dean Eastman and General Meese. This brief makes some points similar to the Cato/PLF Brief and the CAC Brief, but focuses a bit more on the natural rights vision of liberty, derived from the Declaration’s ode to life, liberty, and happiness.

A careful consideration of “the historical events that culminated in the Fourteenth Amendment”2 reveals that the “privileges or immunities” clause of the Fourteenth Amendment protects against state infringement on the individual right of citizens to keep and bear arms.

The terms “privileges” and “immunities” have held a constant meaning from the Founding era through the debates and ratification of the Fourteenth Amendment and the Civil Rights Act of 1866. Indeed, a review of the writings of the political and legal thinkers who inspired our republic reveals an understanding that the terms “privileges” and “immunities” refer to fundamental, natural entitlements or rights essential to the preservation of life, liberty, and other necessary aspects of existence—political or individual. The generation which enacted the Constitution intended the “privileges and immunities” clause of Article IV to refer to well-understood, fundamental rights. This understanding of the scope of the “privileges and immunities” clause of Article IV was recognized and adopted by those who came after the Framers. Subsequently, the authors of the Fourteenth Amendment created a “privileges or immunities” clause which they intended to codify the protection of these fundamental rights3 against the states—in response to efforts by states to deprive freed Americans of African descent of these well understood, fundamental rights.4

In addition, the Congress which drafted and the states that ratified the Fourteenth Amendment intended the “privileges or immunities” clause toextend to the right to keep and bear arms—a fundamental, individual right long recognized as essential to the preservation of liberty and personal safety. The conclusion that the right to keep and bear arms is a well-understood, fundamental right demanding protection against governmental encroachment finds support from those who came before American Independence and upon whom the Framers of the Constitution relied. Unsurprisingly,
it was also asserted by the Framers themselves and those who came after the Framers—and was a significant influence on the Fourteenth Amendment. Finally, the authors of the Fourteenth Amendment explicitly stated their intention that the amendment protects well-understood, fundamental rights— including the right to keep and bear arms.

This tracks closer with Alan Gura’s petitioners brief. These natural, pre-existing rights are those rights necessary for a citizen to exist in a free government. One of these rights must be the right of self-defense.