As law school semester 4 draws nigh, I figured it may be time to write a law-related post.
Not to be confused with this law-related Post.
No, the issue we at Boss Blog would like to tackle is one of much more importance, one of much more gravitas, one that is much more topical:
The Second Amendment.
Now, perhaps you've heard of 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."
Sure, that sounds familiar. Popularly, the Second Amendment is constantly being overshadowed by the First Amendment, who perpetuates the idea among all the other Amendments that the Second Amendment is just the "first loser." That First Amendment sure can be a dick. It's like he just gets to say whatever he wants.
Except "tits."
Anyway, I'm not here to talk about the Second Amendment's meaning or anything (you can enroll in law school or join the NRA for that), but I do want to talk about a particular ruling from the Supreme Court and how that could affect the Second Amendment's application, and how that could potentially ruin your world. Now, don't worry, this isn't going to get political - we're all going to laugh along the way, and maybe at the end you'll have learned something, too.
NOTE: for all you legal-types that might be reading this, you can skip ahead to the part below about the Second Amendment specifically, as I will be discussing the Citizens United case and how rights are incorporated for the uninitiated. Or you can read it, and then call me out for my oversimplification of what is probably a very complicated issue...
We turn our attention first not to the Second Amendment, but instead to the prevailing notion that corporations are treated like people under the law, receiving many of the protections citizens have, because of the 14th Amendment to the Constitution. Notwithstanding a compelling argument that this is not case precedent, but instead an erroneously over-cited headnote to a case (see Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394 (1886)), the modern American system of jurisprudence does extend many rights to corporations as if they were people.
See, the 14th Amendment is a really important Amendment to the Constitution. Before we get into how that works, though, a little background:
You probably didn't learn this in high school or college US History (I guess you have to spend another $80,000 or so to get the real knowledge, but I'll give it to you for free), but it turns out that our forefathers were REALLY concerned with the government they were creating having too much power. These were guys that rejected the English monarchy, after all, so they were very protective of states' rights, and wanted to make sure their Federal government didn't overreach. As a result, all those "rights" in the Bill of Rights (freedom of speech, jury trials, freedom from having to quarter troops, etc.) were rights you had as a citizen of the US, but not necessarily rights you had as a citizen of your state. They wanted to make sure the states were sovereign and could decide things for themselves. As a result, the Constitution had to be ratified by the States for them to be part of the Union, but not everything in the document was binding on the States.
Say what?!
Don't make him say it.
Yeah, I know, Arnold, but it's true. Over time, a lot of these rights were extended to citizens of each state, meaning their local governments weren't allowed to pass laws that infringed on them (e.g. Tennessee can't pass a law that says Tennesseans are not allowed to protest in a public park). This process was called "incorporation", meaning some rights in the Bill of Rights were now "incorporated" to the states.
So, how did they decide which ones were incorporated and which ones weren't? Well, we could spend an entire semester on that (and if you enrolled in Steve Mulroy's Constitutional Law class you did ... my God, did you), but basically the rights that were deemed "implicit in the concept of ordered liberty" and "deeply rooted in our nation's history and tradition" were the ones the Supreme Court said were incorporated. Slippery test, eh? Anyway, like I said over time a lot of these rights were incorporated.
Enter the 14th Amendment.
The 14th Amendment guarantees "due process" to all citizens of the States before they can be deprived of their life, liberty, or property. Further, all citizens of a State are guaranteed equal protection under the laws of their jurisdiction, and no state can abridge the privileges or immunities guaranteed to these state citizens by the federal government.
So, that's a lot, right?
The 14th Amendment said no state can pass laws that take away your federal "privileges and immunities" (like speech), no state can pass laws that don't provide for "equal protection" (like de-segregating the schools), and no state can deprive you of your life, liberty, or property without "due process" (meaning you get a proper trial on the one hand, or if the right is SO fundamental, they can't touch you at all - like marriage, oh wait...).
So you see the 14th Amendment became the shortcut to "incorporation" of those other rights that weren't incorporated yet to the states. If a right given by the Constitution to the citizens of the US (but not necessarily the citizens of the States) was "fundamental," then the 14th Amendment came along and said it was incorporated to the states.
Let's add that up:
If a right is fundamental, then it is incorporated to the citizens of the states. If a corporation is a citizen of a state, then it also is guaranteed the rights of citizens of the state.
Exactly. So a corporation, even though it's definitely not a person, has rights.
Weird.
This is where Citizens United enters the picture.
Maybe you remember this decision? It's the one that President Obama called out the Supreme Court justices for during his State of the Union address in 2010.
"I'm looking at you, Samuel Alito."
Basically (like very basically), it said that there were not differences when people spoke or when a corporation spoke, because they both had First Amendment protection.
The case was about campaign finance. Citizens United wanted to show Hilary: The Movie via On-Demand TV within 30 days of a primary. This is not allowed under a previous ruling and statute that said corporations can't use their general fund for "electioneering," and that regulation of political speech is OK if you're talking about a corporation as the speaker.
Well, the Supreme Court came along and overruled that stuff, saying that based on the First Amendment, which is "incorporated" to all citizens of all states, corporations have the right to political speech just like you and I do. So a corporation can engage in political speech and no one can stop them.
Without getting into a huge debate here, can anyone see how that could be bad?
Maybe/maybe not.
So let's add that up:
If the First Amendment has been incorporated to each state in the US, then all citizens of those states have the right to speech outlined in the First Amendment. If a corporation is deemed a citizen of State, then they have the rights guaranteed under the First Amendment (even political speech) just like a citizen of the state has, too.
Exactly. That's what Citizens United says.
Great, so how does the Second Amendment play into that? "From my cold, dead hand," and all that hoi polloi?
Going back to our initial discovery that not all the rights in the Bill of Rights were guaranteed to every state, it turns out the rights in the 2d Amendment are some of those. So that whole debate on gun control that raged throughout the 1980s (and through today) needed to be decided by the Supreme Court. Could a state ban the sale of a weapon? Could there be any regulation of firearms in this country?
Well, states certainly tried that, and garnered both failure and success. We're not going to debate gun control pros and cons (save that for family gatherings with relatives from Arkansas or Michigan, right?), but we are going to cover the next development in our discussion of this "incorporation" business:
Two very important Supreme Court decisions that decided the fate of the 2d Amendment and whether your state government or federal government could pry that gun from your "warm, alive hand."
Too soon?
The first, D.C. v. Heller, held that the 2d Amendment was incorporated to the District of Columbia, because that's federal territory, and that the 2d Amendment guaranteed an individual right, so the powers-that-be didn't have as much regulatory power as they thought they did.
The second, McDonald v. City of Chicago, held that the 2d Amendment outlined a fundamental right, thus it is incorporated to the States because of the 14th Amendment.
Now, these cases didn't do away with regulation of firearm possession completely (much to the chagrin of militia-nuts across the country), but it did go a long way in saying that it is a fundamental right to have a weapon, thus there are very strict rules about the regulations that are allowed.
So now that we have all the pieces, let's add it up:
If the 2d Amendment is a fundamental right, then it's incorporated to the states, meaning every citizen of every state has a right to keep and bear arms.
If a corporation is a citizen of a state, then it has the same rights as a citizen of that state.
Thus, a corporation has the right to keep and bear arms.
Go ahead and say it.
That can't be right, can it? Surely people can see why this would be bad, right? Regardless, it could be true. I wouldn't doubt that a few corporations will try, and it will take a Supreme Court ruling to decide the matter.
Why don't we go ahead and look into the future and see how this will play out.
If Corporations Have 2d Amendment Rights, the World is Over as We Know It,
by Carl Eppler:
If corporations are extended the rights of the 2d Amendment (since they are considered citizens and citizens are guaranteed the fundamental right of arms bearing) then the following things will happen:
- Corporations will begin purchasing weapons. Not to stockpile or anything, just to have them, you know, because they have to protect themselves. Don't worry, we'll keep them in a locked safe, unloaded.
- Corporations will hire private security forces. Now that other hostile corporations have weapons, we really need to protect ourselves from those other irresponsible gun-owning corporations. Some of those guys really put the "hostile" in "hostile take-over." Zing!
"They threw in the reflective face-shield for free!"
- Corporate CEOs will start off looking like this:
"Your options have vested. Fully."
then become this:
"Your options have vested. Partially."
quickly devolving to:
"The only option is: Death to all who oppose me!"
- Board meetings will start off like this:
"Listen, we really need to get those quarterly reports done, okay?"
then become this:
"Listen, we really need to get these launch codes ready, okay? And are those quarterlies ready yet?"
ultimately ending in:
"Listen, we really need to get those quarterly reports done, okay?"
- Shareholders and VPs will look like this:
"Yeah, I didn't wear a tie today, we're just really down-to-earth here at Blackwater, Inc."
then become this:
"You really need to come to GRIPS with the stock-splitting plan. Har, har har!"
resulting in:
"No, I don't mind the title Vice President of Henchmen, I just feel like whenever I put a proposal in the shareholder report, no one takes it seriously."
I think I've made my point, right?
We know exactly how this will play out, America! We've seen it for years in important societal commentaries like G.I. Joe and James Bond films. We have to be alert to the corporate menace that are "ruthless, terrorist organizations determined to rule the world and also turn profits each quarter in order to keep their stock price high!"
Again, I bet this happens. I have no doubt a corporation will push the issue of: stockpiling weapons, or making their employees carry guns, or hiring mercenaries in the HR department, or holding another company hostage with a hydrogen bomb, and eventually the State will step in and shut them down, and then they'll sue the State and the Supreme Court will have to decide. That, or we'll have to start a daring special missions force to stop them. Worse yet, we may have to hire a British secret agent to infiltrate them and have sex with their most beautiful corporate assistants (I guess that's the same thing, isn't it?).
It's like inventing a robot that can punch people. Everyone agrees that's stupid, right? We know how that will end because we've seen Terminator, 2001: A Space Odyssey, and Wargames. Who would be dumb enough to put money into researching that?
Oh. My. God.
So please, Supreme Court, be aware of the warning signs and don't let this happen. Don't let yourselves become the next robotic punching bag for "science" ripe for eventual enslavement by machines.
And next time you see a memo at your workplace that says:
"TO: All partners
FROM: Destro Labs, Inc.
RE: Increasing Global Presence via Weather Domination"
please take heed, and don't say I didn't tell you so.
