From: [c d t] at [sw.stratus.com] (C. D. Tavares)
Newsgroups: talk.politics.guns
Subject: Re: Constitutional Law and Gun Control
Date: 12 May 1994 19:14:12 GMT
In article <[C p ML 68 E 5 K] at [world.std.com]>, [j--n--e] at [world.std.com] (John McEnerney) writes:
> Has any ruling ever been made
> that, like the 1st, the rights guaranteed under the 2nd cannot be
> infringed by the States?
In shorthand, this subject is known as "14th Amendment incorporation of
the Second Amendment."
Despite clear legislative intent that the 14th Amendment was to apply
the ENTIRE Bill of Rights to the states, the Supreme Court has taken
the position that it must approve claims of incorporation individually
for each Amendment, if not for each individual piece of each Amendment!
The parts of the Bill of Rights that so far have been incorporated
are the First, Fourth, Fifth minus "Grand Jury," Sixth, Seventh
minus "Jury trial in civil suits," and Eighth minus "excessive bail."
Not precisely what the sponsors of the 14th intended:
The noted Reconstruction historian Eric Foner recently
observed:
The states, declared Michigan Sen. Jacob Howard, who
guided the Amendment to passage in the Senate, could no
longer infringe on the liberties the Bill of Rights had
secured against federal violation; henceforth, they
must respect "the personal rights guaranteed and
secured by the first eight Amendments." Bingham
said much the same thing in the House. Some
portions of the Bill of Rights were of little moment in
1866 (no was threatening to quarter soldiers in a home
without consent of the owner). But it is abundantly
clear that Republicans wished to give constitutional
sanction to states' obligation to respect such key
provisions as freedom of speech, *the right to bear
arms*, trial by impartial jury, and protection against
cruel and unusual punishment and unreasonable search
and seizure. The Freedmen's Bureau had already taken
steps to protect these rights, and the Amendment was
deemed necessary, in part, precisely because every one
of them was being systematically violated in the South
in 1866.[157] [emphasis added]
____________________________________________________________
157 Eric Foner, _Reconstruction_, (New York, Harper & Row:
1988), 258-259.
[See CONG. GLOBE, 39th Cong.,1st Sess.,pt.3,2765 (23 May 1866)]
A previous post by Frank Crary explains more about how the Supreme
Court got where it has:
That's correct. However, the first time the Supreme Court was ruled
on the subject, in the "Slaughterhouse case", Butchers' Benevolent
Assocation v. Crescent City Livestock Landing and Slaughterhouse Company
83 US 36 (1873), the Court completely rejected the intended meaning
of the clause you refer to, protecting the "privilages and immunities"
of all citizens. They basically didn't like the implications of
applying the Bill of Rights to the states, so they invented an
interpertation to avoid that. Later, on a case by case basis,
the Court has ruled that parts of the Bill of Rights _are_ protected.
Not by the "privilages and immunities" clause, but by the ban
on any state denying "live, liberty or property without due process
of law." Basically, they have defined "liberty" to include such things
as freedom of speach. Unfortunately, this reasoning (intended to
offer the protections the Fourteenth Amendment was supposed to
offer) also leaves a back door open for regulation: If the restriction
follows the "due process of law", the Court will not overturn
it. What, exactly, that means isn't clear. The Court has said
it includes being passed by the legislature which had some
vaguely rational reason for doing so. In some cases, the protected
right is, according to the Court, "fundamental to ordered liberty"
and therefore can't be restricted by legislature except for really
compelling reasons (i.e. restricting freedom of assembly during
a riot.)
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