I've always thought that the 13th Amendment's legislative history was important, because getting rid of the "badges and incidents of slavery," while ill-defined, has great power w/r/t literacy tests, the VRA, etc, and I imagine the same for gun laws, especially with your historical discrimination and disarmament argument. ... Footnote 4 is most interesting: substantive due process will carry the day here. There is nothing in the constitution about permissible abrogations of the right to bear arms, and so now that it is recognized as a constitutional right under the 2nd, the key, as you intuit, will be the 14th jurisprudence about substantive due process.I'm curious about whether one could push this even further and argue that the test violate a constitutional right even absent congressional action. Maybe not. Thoughts?
The key will be 14.1: "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." and 14.5: "5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."
I would back up your argument that this, in conjunction with Footnote 4, as applied to the newly interpreted 2nd amendment (and toss in the 13th) that onerous literacy tests create an undue burden on the P&I of historically discriminated minorities to bear arms. Congress should have the power to enforce the substantive due process claim by appropriate legislation, against state literacy tests. ... Again, think of the 13th, "badges and incidents of slavery," which is much broader than "former slaves."
Thursday, July 03, 2008
I emailed an aspiring law prof friend on whether conditioning gun ownership on a written test (effectively a literacy test) should be unconstitutional, potentially through some unholy blend of the pre-Slaughterhouse Cases understanding of the 14th Amendment's Privileges & Immunities Clause, Carolene Products footnote 4, and an understanding of the historical disarmament of African Americans in the South and how current prejudice against African Americans might contribute to imposition of anti-gun laws in urban areas disproportionately populated by them. At least one reader was skeptical. My friend's response:
Posted by Amber at 7:04 AM