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This is Hilarious! Check out We Hold These Truths To Be Awesome: The Founding Fathers Give Google Wave A Try at Tech Crunch (H/T Gizmodo)

Google Wave is a program that Google users can use to collaborate on creating stuff. If you have a Google Wave account, click this link and play it through.

But here are some cool screen captures.

In the initial wave, Thomas Jefferson thinks the truths are awesome. John Adams thinks they are self-evident. So TJ invites Sam Adams into the fray.

Later, when listing the grievances against the King, Jefferson lists that he is a jerk, but John Adams crosses that out, and adds some really heinous deeds.

And perhaps the coolest part is the voting. TJ asks, who’s in?

And of course, John (not Herbie) Hancock votes yes, and like any good commenter on a thread, writes FIRST! (not firsty).

Sadly, King George III voted no, but plenty of votes for yes. Colonies FTW!

Check out the most recent JoshCast, where I interview Ilya Shapiro, Senior Fellow in Constitutional Studies at the Cato Institute, and the winner of the battle of the Ilyas contest!

Ilya talks about Pandora, McDonald, and his possible celebratory trip to Disney World after his grand victory!

[podcast format=”video”]https://joshblackman.com/podcasts/ilyapodcast.m4a[/podcast]

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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.

Check out Alan Gura’s site for a listing of all amici filed in McDonald.

In this post, I’ll discuss the brief of Constitutional Law Professors and the Constitutional Accountability Center.

This is quite a curious brief, because it joins such divergent minds as Richard Aynes and Jack Balkin with Randy Barnett and Steven Calabresi. Privileges or Immunities and individual rights encourages odd bed fellows.

This brief heavily focuses on original public meaning originalism to establish that in 1866 the privileges or immunities were established terms of art that protected substantive fundamental rights, including, but not limited to, those in the Bill of Rights.

The Privileges or Immunities Clause was written and ratified to secure the substantive liberties protected by the Bill of Rights, as well as other fundamental rights. By 1866, the words “privileges” and “immunities” were commonly used to refer to core, inalienable rights, including those set out in the Bill of Rights. History shows that leading proponents and opponents alike of the Fourteenth Amendment understood the words of the Clause to protect substantive fundamental rights, including the rights enumerated in the Constitution and Bill of Rights.

The problems motivating the framers of the Privileges or Immunities Clause—for example, deprivations of the right to free speech, the right to bear arms, and other denials of liberty and personal security in the southern states—are strong evidence that the Clause was drafted to protect fundamental rights against state infringement. As discussed in the next  sections, the public meaning of the words “privileges” and “immunities” and the floor debates over the Amendment confirm the intent to use the Clause to protect substantive rights in the States.

The brief proceeds to discuss statements made on the floor during the Ratification debates, and how these discussions would have been understood at the time. The brief also argues that “The Wording Of The Privileges Or Immunities Clause Is Broader Than The Privileges And Immunities Clause Of Article IV.”

While the Privileges or Immunities Clause in the Fourteenth Amendment draws on the public meaning of “privileges” and “immunities” in Article IV, discussed, supra, in Section I.B, its wording is more expansive in at least two respectsNext, the brief argues that the Privileges or Immunities Clause includes an individual right to bear arms  As was shown in Section I, supra, the public meaning of “privileges or immunities of citizens of the United States” included the “personal rights guarantied and secured by the first eight amendments of the Constitution,” such as the individual “right to keep and bear arms.” Cong. Globe, 39th Cong., 1st Sess. 2765 (1866) (Sen. Howard).

Because state statutes disarming freedmen—as well as legislative restrictions on other fundamental rights—were  considered to be the South’s post-war attempt to re-institutionalize the system of slavery in a different guise, Congress
initially thought itself justified in exercising its Thirteenth Amendment powers to enact the Civil Rights Act of 1866. If slavery is the opposite of liberty, then the Thirteenth Amendment empowered Congress to police restrictions on fundamental liberties that amounted to a partial imposition of slavery.

The comment about slavery being the opposite of liberty is a point Barnett has made before in a few lectures. It is a really deep and profound point that should not be glossed over.

Next the brief discusses precedent and stare decisis and concludes that Slaughterhouse is wrong, has been undermined by subsequent application of most of the Bil of Rights to the states, and should be overturned

This Court should follow the text, history, and original public meaning of the Privileges or Immunities Clause of the Fourteenth Amendment to protect an individual right to bear arms. Previous decisions notwithstanding, it is never too  late to adhere to the text of the Constitution.Slaughter-House And Its Progeny Were Wrong As A Matter Of Text And History And Have Been Completely Undermined By This Court’s Subsequent Application Of Most Of The Bill Of Rights To The States.

Next the brief addresses an important issue, and argues that Reviving The Privileges Or Immunities Clause Will Not Prejudice The Constitutional Rights And Liberties Of Noncitizens. Amici believe the existing rights of noncitizens are fully protected by the Due Process and Equal Protection Clauses. State governments are required to provide noncitizens with a full range of procedural protections and need a constitutionally permissible reason for either restricting the liberties of noncitizens or discriminating against any “person” with regard to the fundamental rights accorded to citizens.

I’m not quite sure how persuasive I find this section from a strictly textual perspective, but practically it won’t make a difference. The Court would not exclude non-citizens from this right, regardless of the history.

On the whole, a fantastic brief. I hope the Court takes note.

For my thoughts on McDonald, see  Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendmen

Anne Heller, the author of Ayn Rand and the World She Made took the time to chat with me about her new biography. I asked a few questions about Rand, Judaism, and Going Galt. Let’s just say Ayn would not be happy with my license plate 🙂

[podcast format=”video”]https://joshblackman.com/wp-content/uploads/2009/11/JoshCasts-Interview-with-Anne-Heller.m4a[/podcast]
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P.S. Dear FTC, I received a free copy of this book from the publisher. Is that okay?