No Chicken Dances For Sodomites

I know conservatives won’t see it this way, but the Supreme Court’s 5-4 decision today in applying the Second Amendment to states and municipalities is a blatant example of selective activism. 

I say “selective” because if the conservatives on the Court—who once again joined together to essentially overturn Chicago’s gun law—had wanted to demonstrate what Jonathan Turley has called, “a more deep-seated jurisprudence,” they could have overturned what is known as the Slaughter-House Cases.

The issue in the 1873 Slaughter-House Cases was,

Whether the 13th and 14th amendments guarantee federal protection of individual rights of all citizens of the United States against discrimination by their own state governments.

The answer in 1873 was NOPE.

The Los Angeles Times summarized the issue today:

In the 19th century, the court limited the reach of the Bill of Rights and said it put limits only on the federal government. Most protections in the Bill of Rights — such as the right to freedom of speech or the right against unreasonable searches — were extended to states and localities in the middle of the 20th century.

Essentially, over the years the Court has not incorporated to the 50 states the entire Bill of Rights, but has retained discretion to apply its protections as it sees fit.

In today’s ruling on the Second Amendment, the Court did not overturn the Slaughter-House Cases, missing a chance for the conservative justices to, again in Jonathan Turley’s words,

…prove that they have a broader vision of individual rights that goes beyond the barrel of a gun.

Well, apparently they don’t.  Justice Sam Alito, who wrote the majority opinion, specifically addressed the Slaughter-House Cases:

We see no need to reconsider that interpretation here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter House holding.

So, in effect, the conservatives on the Court have selectively incorporated gun rights to all states and municipalities without expanding the reach of the Fourteenth Amendment’s Privileges or Immunities Clause, and as a result, it still matters where you live, in terms of enjoying Constitutional rights.

Astute readers will ask, why?  Why wouldn’t the Court just go the whole way and make the Bill of Rights—the entire enchilada—applicable in every way to the states and thereby establish once and for all, “a unified base of rights for all citizens“?

Hint: Homosexuality is a SIN.


Conservatives fear that if the Court were to overturn the Slaughter-House Cases and make the entire Bill of Rights forever binding on state governments, that future “liberal” courts might discover that homosexuals enjoy equal protection of the law under the Bill of Rights and thus the states would not be able to prohibit those nasty sodomites from doing the Chicken Dance at their wedding receptions.

Now, doesn’t that make conservative sense?


[The chicken dancer photo (which is not a picture of a “nasty sodomite” by the way) courtesy of: and Bush/Alito photo: Reuters]


  1. Duane,

    Dang. Another situation I was unaware of. Amazing, how a case involving a public health issue could so profoundly affect such fundamental issues.

    As a teen I admit I was kinda geeky because I was one of the few who actually took an interest in grammar. No, really. I found it an interesting exercise in logic. And besides, I was something of a bookworm too. Here is a case where grammar and sentence structure could make a world of difference.

    What Amendment IV obviously meant, and what the wording should have been, is: “. . . are citizens of both the United States and of the state in which they reside. As such, no state shall make or enforce any law which would abridge the privileges or immunities to which they are entitled by the United States; nor shall . . . ”

    For want of a nail, the shoe was lost . . .”

    Damn lawyers.

    Thanks for this chunk of understanding.



    • Duane Graham

       /  June 28, 2010


      I share our geekiness. Your affection for grammar and its effect on interpreting the law is one with which I can relate, albeit in a non-lawyerly way.

      When I was responsible for policing locally our union’s national agreement, as well as our own local contract, I often ran into the interpretation problem due to imprecise or ill-worded provisions. Needless to say, such problems caused disputes, which led to grievances, which led to arbitrations, which led to forcing an arbitrator to interpret the disputed provisions, which led to disputes over what the arbitrator meant when he provided his interpretation. In that sense, it’s a little like trying to untangle fishing line, after a bad cast.

      I twice negotiated changes in our local agreement, which required a lot of thought about how to put in writing what we had agreed to, keeping in mind that in the future all parties who negotiated the agreement would no longer be around to provide guidance as to its precise meaning.

      It’s not as easy as it sounds, was my experience.

      A couple of the provisions I wrote I thought were fairly clear, but when real life, quirky situations came up, the flaws appeared. While it is true that hard cases make bad law, it is also true that there are such things as hard cases, and someone has to deal with them. I found that generally, you simply couldn’t possibly anticipate all contingencies, or how another mind might apply what you have written in a unique way.

      Oddly, all that was sort of what made it fun, at least for geeks.



  2. ansonburlingame

     /  June 29, 2010

    To both,

    Well guys, I am still confused, having never before heard of the Slaughter House Case. As I understand the above in 1873 the Court ruled that selective implementation of the Bill of Rights by the states was OK. But then the LA Times article quoted said that “… such rights were extended to states and municipalities in the mid 20th Century”.

    That sounds like a reversal of the 1873 ruling allowing states to NOT apply the Bill of Rights in their entirety to all US citizens. And the court took that action in the mid 20th century, making the BOR APPLICABLE to ALL citizens, or so it seems to me.

    Given that view (mid 20th Century, NOT 1873) the Court struck down a municipal law restricting the right to bear arms. To me that is very logical from a legal point of view, not an IDEALOGICAL one.

    I personally believe handguns and assualt weapons should be heavily restricted if not eliminated. That make sense to me from a public policy point of view. BUT such thinking on my part runs head-on into the 2nd Amendment. Thus I would support a Constitutional Amendment to achieve my policy goal, not a “work around” through judicial review and interpretation.

    Unless you want to argue the nuances of the words “bear” or “arms” the 2nd Amendment is not hard LAW. It is very clear, though now outdated in my view. So change the f… LAW, don’t argue what it clearly says.

    I would bet money that some of those “conservative” justices think, at least deep inside, that gun tooting idiots are a threat to public safety and would love to see them “disarmed”. I sure do. I just don’t yet see a way to do it legally, given the very clear words in the 2nd Amendment.



  3. To both,

    I went back and re-read the slaughterhouse case description on Wiki and my head too is still spinning. It is not as clear as I first assumed. I am thinking now that the problem is the fuzzy line between what jurisdiction belongs to the states and which to the federal government, and apparently the Supremes decided to reveal just where that line is case by case.

    Clearly, the narrow interpretation by the Supremes in Slaughterhouse upheld a reasonable solution, within the context of Reconstruction sentiments at the time, to a dire public health situation. In addition, the outcome clearly benefited the civil rights of blacks. One of the references is helpful to these conclusions:

    Having read this I am convinced that even most of the lawyers are still confused and divided over this case.

    As to the right to bear arms I am similar to you, Anson. I really prefer to live in a world in which ownership of guns is minimized and in which I don’t have to pack heat, either in public or at home. But that would require uniform gun laws across all states, and as you say, that would require an Amendment. It is going to continue to be a problem because lately the bad guys are sometimes better-armed than the cops, and that includes some of the gang battles starting to come over the southern border.



  4. Duane Graham

     /  June 30, 2010

    Just two points:

    1) I’m not sure why the point of the piece isn’t clear, but perhaps it’s a failure to communicate. Beginning with the dissent in the Slaughter-House cases, there has been, in Fred Friendly’s words (The Constitution: That Delicate Balance), a long line of argument that supported “the concept that liberty had, with the Fourteenth Amendment, taken on a new constitutional and national meaning.”

    Justice Hugo Black, who some consider to be one of the greatest of our justices, said that his study of the “historical events that culminated in the Fourteenth Amendment” and the “expression of those who sponsored and favored, as well as those who opposed its submission and passage,” persuaded him that,

    …one of the chief objects that the provisions of the Amendment’s first section…were intended to accomplish was to make the Bill of Rights applicable to the states.

    By that he meant all of the Bill of Rights, not just this one or that one. This line of argument asserted that the Fourteenth Amendment had been enacted “to place the common rights of American citizens under the protection of the national government.” (Justice Field’s dissent in the Slaughter-House cases.)

    As it is, the Court has not acknowledged that the entire Bill of Rights—and those implied by an inexorable logic, like “the right to privacy”—are “common rights” “under the protection of the national government.” The issue is why not? And the answer seems clear: Should a future court decide (and there is a case on its way right now) that homosexuals have a right to marry, there is still some faint hope that the Court would not apply that right to the several states, and thus conservatives could still fight in the various state legislatures to keep gays from having bad weddings.

    2) Both of you assume that the interpretation adopted by the conservatives on the Court two years ago in the D.C. case, and expanded to the states in the Chicago case, are uncontroversial interpretations of the Second Amendment. They are not. They were and remain controversial. Why do you think they were both 5 to 4 cases? It is true that given the way the conservatives have interpreted the Amendment now, that either a future Court would have to overturn it, or we would need a Constitutional amendment to change it. But by no means is it a given that Justice Scalia’s view of the Second Amendment is the correct one, which both of you seem to grant. It just happened to get one more vote.



  5. ansonburlingame

     /  July 1, 2010


    Be careful that you don’t fall into a typical liberal trap using the 14th amendment.

    We can argue all day about the meaning of “equal protection under the law” and much legal interpretation of the Constitution has been imposed to “expand” the Constitution to the modern day using that argument.

    That is why some conservatives, me not being one of them, call for a repeal of the 14th amendment or at least a good, clear rewrite of same.

    Fortunately most of the Bill of Rights are not at all vague or subject to interpretation. “Citizens have the right to bear arms” is very clear to me with no wiggle room for rational debate. If such a right is outdated, as I believe it is, then change the 2nd amendment. Dont like corporations having the run of the shop with political contributions then define such contributions as NOT speech. Otherwise forget it. Saying corporations are not people is like saying unions are not people, just “legal entities”.

    You scream when the Court rules constitutionally against a cause you support (and in this case I do as well) I scream when it does so to suppot a cause that I abhor, like affirmative action.

    If good legislatures wrote “good” laws (“good” being in essence very clear and with no wiggle room) we could all get mad at the politicians instead of the judges trying to figure out what the hell the law really means.

    AND clear laws, clearly written (not 2300 pages of wiggle room) would eliminate the arguments about idealogical judges. In such a case judges could NOT be idealogical, they would just have to be able to read, accurately.



    • Duane Graham

       /  July 1, 2010


      You ignore completely the clause that begins the Second Amendment:

      A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

      There is a strong case to be made about that opening clause, both in support of limiting gun rights and in expanding them. It simply isn’t as cut and dried as you suppose.

      And as for politicians and their failure to write clear laws with no wiggle room, sometimes the wiggle room was written in on purpose, that being one of the reasons we tend to see our Founders as exceptionally wise, although not, as some in the Tea Party movement would have it, as gods.



  6. ansonburlingame

     /  July 2, 2010

    Now tell me there is no wiggle room in Obamacare, all 2000 pages and the pending 2300 page financial reform bill.



  7. Warren Hathaway

     /  September 21, 2011

    Overturning Slaughterhouse is not the answer. Realizing that there are two citizens under the Constitution of the United States since the adoption of the Fourteenth Amendment is.

    In the Slaughterhouse Cases, the Supreme Court held that citizenship of a State was separate and distinct from citizenship of the United States; that a citizen of a State was separate and distinct from a citizen of the United States:

    “Of the privileges and immunities of the citizen of the United States, and of the privileges and immunities of the citizen of the State, and what they respective are, we will presently consider; but we wish to state here that it is only the former which are placed by this clause (Section 1, Clause 2 of the Fourteenth Amendment) under the protection of the Federal Constitution, and that the latter, whatever they may be, are not intended to have any additional protection by this paragraph of the amendment.” Slaughterhouse Cases: 83 U.S. (16 Wall.) 36, at 74 (1873).

    That there are two citizens; a citizen of the United States, and a citizen of a State who is not a citizen of the United States, is shown in the following case of the Supreme Court of the United States, Sun Printing & Publishing Association v. Edwards (194 U.S. 377):

    “As Delaware must, then, be held to have been the legal domicil of Edwards at the time he commenced this action, had it appeared that he was a citizen of the United States, it would have resulted, by operation of the Fourteenth Amendment, that Edwards was also a citizen of the State of Delaware. Anderson v. Watt, 138 U.S. 694. Be this as it may, however, Delaware being the legal domicil of Edwards, it was impossible for him to have been a citizen of another State, District, or Territory, and he must then have been either a citizen of Delaware or a citizen or subject of a foreign State. In either of these contingencies, the Circuit Court would have had jurisdiction over the controversy. But, in the light of the testimony, we are satisfied that the averment in the complaint, that Edwards was a resident ‘of’ the State of Delaware, was intended to mean, and, reasonably construed, must be interpreted as averring, that the plaintiff was a citizen of the State of Delaware. Jones v. Andrews, 10 Wall. 327, 331; Express Company v. Kountze, 8 Wall. 342.” Sun Printing & Publishing Association v. Edwards: 194 U.S. 377, at 381 – 383 (1904).


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