WASHINGTON--(Business Wire)--
The American Center for Law and Justice (ACLJ) - focusing on constitutional law
- today filed an amicus brief with the Supreme Court of the United States asking
the high court to overturn a lower court ruling and rely on the Privileges or
Immunities Clause of the Fourteenth Amendment, rather than the Due Process
Clause, to protect the individual guarantees contained in the Bill of Rights,
such as the Second Amendment right to keep and bear arms. The Supreme Court will
hear oral arguments this term in the case of McDonald v. City of Chicago.
(08-1521)
"This case involves applying the proper balance between the rights of the
federal government and the states," said Jay Sekulow, Chief Counsel of the ACLJ.
"The Fourteenth Amendment was passed to ensure all of the protections of U.S.
(federal) citizenship were available to the freed slaves in all of the states
where they resided, and that the basic protections of the Bill of Rights would
be used to ensure that no state could act to deny those rights. At the same
time, the power of the federal government must be properly limited. In our view,
that balance is struck through the Privileges or Immunities Clause of the
Fourteenth Amendment, which applies the rights enumerated in the Bill of Rights,
rather than what many have labeled the `discovered` rights that courts have
found in the Due Process Clause."
In McDonald v. Chicago, the Supreme Court will consider whether the Second
Amendment to the Constitution is incorporated against the states in order to
prevent adverse state action from infringing on the right to keep and bear arms.
The constitutional structure of our government initially provided that only the
federal government, but not the states, was limited in the actions it could take
by the Constitution`s first ten amendments, the Bill of Rights. Following the
Civil War, with passage of the Fourteenth Amendment, the protections of the Bill
of Rights were expanded to also limit the actions of the states. For more than
100 years, the Supreme Court has used the Due Process Clause of the Fourteenth
Amendment to enforce certain rights, characterized as fundamental, against the
states, including some, but not all of the specified, or enumerated rights in
the Bill of Rights. This has led to the incorporation, or application to all the
states, of such un-enumerated rights as the right to privacy, which has been
used to justify late-term abortion on demand and other controversial practices.
In its amicus brief, the ACLJ argues that the Privileges or Immunities Clause of
the Fourteenth Amendment, rather than the Due Process Clause, is the proper
method for protecting the individual guarantees contained in the Bill of Rights,
such as the Second Amendment right to keep and bear arms, against adverse state
restrictions, precisely because these written, enumerated rights make up the
basic privileges and immunities of federal citizenship.
The ACLJ contends that incorporating the application of the Bill of Rights to
the states this way, rather than through the Due Process Clause, both ensures
these basic rights are protected, and that courts are properly restrained in
otherwise "discovering" rights not specifically enumerated, such as the right of
privacy supporting abortion. The brief discusses the historical understanding of
the terms "privileges" and "immunities," beginning with William Blackstone - one
of the most influential sources of legal theory for our founding fathers - and
concluding with the principal drafter of the Fourteenth Amendment, Rep. John
Bingham.
The ACLJ amicus brief is posted here:
http://www.aclj.org/media/pdf/ACLJ-Amicus-Brief-McDonaldvChicago_11232009.pdf
Led by Chief Counsel Jay Sekulow, the American Center for Law and Justice
focuses on constitutional law and is based in Washington, D.C. The ACLJ is
online at www.aclj.org.
American Center for Law and Justice
MEDIA CONTACTS:
For Print:
Gene Kapp, 757-575-9520
or
For Broadcast:
Christy Lynn Wilson or Todd Shearer, 770-813-0000
Visit ACLJ Newsroom: www.DeMossNewsPond.com/aclj
Copyright Business Wire 2009
