Reading through the US Constitution -

[BigG]

I do this occasionally, just to keep in touch.

I remember lots of chat about "incorporating" the various amendments in the Bill of Rights and that the 2nd amendment has not been incorporated.

However reading

Article V

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

Emphasis added

I think, based on my English comprehension, that there is no need to incorporate amendments into the Constitution; that language says it is.

Why is there a debate? Enquiring minds want to know.

 

[HKuser]

Incorporation means applicable to the states through 14th Amendment due process. This is a judicially created doctrine and has always been somewhat controversial. Hugo Black said they should all be in, or all be out, but the Supreme Court majority opinion has been selective incorporation into 14th Amendment due process protections of the Bill of Rights on a clause by clause basis.

 

[Johannes_Paulsen]

I'm afraid you're confused about the Constitutional doctrine of incorporation. Here's a quick and dirty guide.

The Constitution is primarily concerned about describing the powers granted to the Federal government. To that end, when they were originally drafted, the Bill of Rights were conceived ONLY as limitations on the FEDERAL government. Therefore, originally, no one could complain that an action by a state or municipal government violated their First Amendment right to free speech or religion, or Fourth Amendment right to be free from unreasonable searches & seizures. (Or, for that matter, their Second Amendment right to keep and bear arms.) The Bill of Rights simply did not apply.

After the Civil War, the Fourteenth Amendment was ratified, partly to address (justified) concerns that the former states in rebellion would attempt to infringe upon the rights of the former slaves, who were now recognized as U.S. citizens. Section One addressed the point:

Section 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.

The incorporation doctrine was developed by the Supreme Court to ensure that citizens would not be deprived of their "life, liberty, or property, without due process of law...." Constitutionally, the doctrine permits certain rights enshrined in the Bill of Rights to ALSO apply to actions of the several States. Obviously, the rights listed in the First Amendment have been incorporated to the States. Other rights have too, but not all of them. As of this day, the Second Amendment has not been held to be incorporated. Neither has the Third Amendment (concerning the quartering of soldiers).

For what it's worth, it is highly unlikely that the issue of incorporation will come up in the Heller decision, even if the Court finds that the Second Amendment protects an individual right. Reason being that Heller concerns an action by the District of Columbia's municipal government, which derives its authority from the U.S. Congress (per Article I sec. 8 of the Constitution), not a State government.

 

[Garand Illusion]

Can't argue with the description of how "incorporation" has been implemented by the court ... but likewise it is clearly not part of the 14th amendment. The 14th should have included ALL the rights of the COTUS automatically, and it's only judicial activism (as we now call it) that limited that. The judges didn't like the fact that the 14th was passed specifically to correct their previous judgments and used their power to prove who was still the big dog.

But incorporation has been around too long now to get rid of it. We're stuck with the concept now.

Once the 2nd is incorporated, though (probably not by Heller, I realize, though we might be suprised) about all the amendments will be. Is it the 7th that is also not incorporated? I don't remember.

 

[Hugh Damright]

amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution

But the intent and purpose of the 2nd is to limit the federal government and not the States.

As for the 14th, I think that its intents and purposes are not as easily determined as some folks imagine. I also question its validity becase I think it is clear that the 14th did not pass the amendment process.

 

[Garand Illusion]

But the intent and purpose of the 2nd is to limit the federal government and not the States.

Please read through the Amicus briefs here. While the 2nd amendment was originally intended to limit only the Feds, that changed with the 14th amendment. As for the 14th amendment ...

As for the 14th, I think that its intents and purposes are not as easily determined as some folks imagine. I also question its validity becase I think it is clear that the 14th did not pass the amendment process.

You're probably right (if I remember what I've read about this), but nearly 150 years later this is just historical trivia. The 14th amendment is part of the constitution now and will continue to be. Every country has it's historical and legal oddities. That's one of ours.

To argue the 14th you'd have to time travel back 100 years and perhaps several hundred SCOTUS rulings.

 

[CGSteve8718]

What about heirarchy?

The 10th Amendment seems to tell me that even without this incorporation of the 14th Amendment, the Bill of Rights did not just apply to the federal govt. and all of those 10 amendments do apply to the states.

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." [emphasis added]

Also, Article VI states that the USC is the "supreme law of the land", which further affirms the 10A to me.

So, State's rights go only so far as what is dictated by the USC. Therefore, no State can violate your individual rights and claim them as "State's rights", if it's not mentioned, then, and only then is it up to the states.

Right now in PA, Philadelphia decided to make up its own gun laws in direct violation of the state law, and therefore illegal. Why does this seem so easy to interpret, but we can't say that California's gun laws are in direct violation of the 2A on the basis of the 10th Amendment and Article VI, and lastly the 14th Amendment (selective incorporation not withstanding)?

 

[mvpel]

Therefore, originally, no one could complain that an action by a state or municipal government violated their First Amendment right to free speech or religion, or Fourth Amendment right to be free from unreasonable searches & seizures. (Or, for that matter, their Second Amendment right to keep and bear arms.) The Bill of Rights simply did not apply.

Your recourse, therefore, was, and is, in your State's constitution. Vermont's Constitution has had an explicit guarantee of the right to arms since it was drafted, and the first Vermont Supreme Court case on the subject came about in the early 1900's, the obvious conclusion was reached, and Vermont thus has no gun laws to this day.

The problem came about when California's constitution was drafted by white people who wanted to insure that the Latino, Chinese, and Black people couldn't claim a right to arms.

 

[Hugh Damright]

The Tenth Amendment does not in any way even imply that the USBOR limits the States. Quite the opposite, it says that such jurisdiction is reserved to each State. And the supremacy clause does not alter the intent and purpose of amendments. Quite the opposite, it means that the Tenth Amendments' separation of State/federal powers is the supreme law. The USBOR was intended to limit only the federal government.

I think it should be obvious that a limited federal government cannot be the protector of "rights" because it is enormously too general and broad a power, and the only possible result will be to transform our limited federal government into a national government, and the only possible result of that is despotism.

 

[Johannes_Paulsen]

As for the 14th, I think that its intents and purposes are not as easily determined as some folks imagine. I also question its validity becase I think it is clear that the 14th did not pass the amendment process.

That last bit is simply not true.

The Seventh also has not been incorporated, as someone above mentioned. There's a decent Wikipedia entry on the subject:

http://en.wikipedia.org/wiki/Incorporation_(Bill_of_Rights)

 

[Johannes_Paulsen]

Your recourse, therefore, was, and is, in your State's constitution. Vermont's Constitution has had an explicit guarantee of the right to arms since it was drafted, and the first Vermont Supreme Court case on the subject came about in the early 1900's, the obvious conclusion was reached, and Vermont thus has no gun laws to this day

That's exactly right. The founders were more worried about a distant and, perhaps, aristocratic Federal government becoming isolated from the people, and passing oppressive laws.

They were far less concerned that State governments would become oppressive toward their own citizens. Those officials lived and worked among the people they represented, and so (they thought) would be less likely to become oppressive. After the Civil War, however, the former Confederate state governments began oppressing their own citizens. The Fourteenth Amendment was ratified, in part, to address that problem.

 

[gc70]

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Nowhere in the Constitution is the federal government given (delegated) power to control the RKBA. The states did prohibit the federal government from controlling the RKBA when the Second Amendment was adopted. Therefore, power over the RKBA is reserved.

 

[Hugh Damright]

I think it is clear that the 14th did not pass the amendment process.

That last bit is simply not true.

I don't see how anyone who actually knows anything about it could assert that the 14th passed the amendment process.

"The people of the South have rejected the constitutional amendment, therefore we will march upon them and force them to adopt it at the point of a bayonet." -Senator Doolittle of Wisconsin

 

[gc70]

I don't see how anyone who actually knows anything about it could assert that the 14th passed the amendment process.

The 14th was approved by the requisite number of states, even though the Supreme Court chose to ignore the fact that the approval was under duress in the case of several states.

 

[HKuser]

The better question is, "who cares?" It has been moot for 140 years and will not be changed. Get on with history.

 

[Hugh Damright]

The 14th was approved by the requisite number of states

Am I supposed to respect Southern States being taken over by the feds and the feds pretending to ratify an amendment?

And I think that New Jersey and Ohio had a right to withdraw their ratification (as they tried to do). I don't see any integrity in the yankee position that once a Nothern State voted for ratification of the amendment then it could not change its vote, while any Southern State that voted against ratification was required to change its vote. I think that is arbitrary government, the opposite of free government such as the Second Amendment is intended to secure.

And I don't see how Congress could deny the Southern States representation in Congress in order to get an amendment through. What's more, if I am not mistaken, the amendment still failed even the yankee Congress, and they had to rig the vote some more.

Then didn't congress produce a bill saying that the 14th had passed, but such bills need to be approved by the President, and they just skipped that, because President Johnson was opposed to the 14th?

IIRC, the 14th failed every single step of the amendment process.

Who cares?

I care. And at some point I started wondering something ... why did the 14th fail? And why was the civil rights bill that came before it vetoed? And why did the SCOTUS interpret the 14 the way they did in the Slaughterhouse cases? It is by trying to understand these issues that I came to acquire some sense of government.

 

[CGSteve8718]

The Tenth Amendment does not in any way even imply that the USBOR limits the States. Quite the opposite, it says that such jurisdiction is reserved to each State. And the supremacy clause does not alter the intent and purpose of amendments. Quite the opposite, it means that the Tenth Amendments' separation of State/federal powers is the supreme law. The USBOR was intended to limit only the federal government.

I think it should be obvious that a limited federal government cannot be the protector of "rights" because it is enormously too general and broad a power, and the only possible result will be to transform our limited federal government into a national government, and the only possible result of that is despotism.

So Hugh, by your response you are saying that say, CA gun laws for example are not unconstitutional?

I'm not trying to be smart by asking that either, I really want to know. Lately, I've been reading the USC, but even the annotated guides don't really get behind the intent of the document.

The word prohibit in the 10A seems to be the word that does limit the states.

Although I can see where you are coming from with the original federal govt. limitation because the people at the time didn't even want the USC to be adopted if it did not include a BoR.

But say that they did come out and say the 14th did not incorporate the BoR, then really, nothing can really be unconstitutional if done by the states can it? There would then just be despotic state govts. rather than the dreaded despotic national govt. I see no difference in small tyranny and large tyranny.

 

[HKuser]

Quote:
Who cares?

I care. And at some point I started wondering something ... why did the 14th fail? And why was the civil rights bill that came before it vetoed? And why did the SCOTUS interpret the 14 the way they did in the Slaughterhouse cases? It is by trying to understand these issues that I came to acquire some sense of government.

In 1776 some guys rebelled and threw off the legally constituted government. Does that then mean that everything after that was illegitimate? Maybe the Brits should press their case since no point is EVER settled. If you don't like the 14th Amendment, get it repealed, otherwise complaining about events that happened 140 years ago will get you nowhere. You're not the first to complain, but you're unlikely to get any farther than the others who have come before you with the same complaint.

 

[Garand Illusion]

In 1776 some guys rebelled and threw off the legally constituted government. Does that then mean that everything after that was illegitimate? Maybe the Brits should press their case since no point is EVER settled. If you don't like the 14th Amendment, get it repealed, otherwise complaining about events that happened 140 years ago will get you nowhere. You're not the first to complain, but you're unlikely to get any farther than the others who have come before you with the same complaint.

Awesome post. +1

The 14th amendment is a fact of law. That the 2nd amendment should restrict local governments because of it is (or should be, hopefully Heller will start the process) a fact as well.

 

[gc70]

The word prohibit in the 10A seems to be the word that does limit the states.

Let's take the 10th Amendment apart.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

"The powers... not delegated to the United States by the Constitution... are reserved..."

"The powers... not prohibited by it (the Constitution) to the States... are reserved..."

So, any powers not given to the federal government, or specifically denied to the States, belong to the States or the people.

The 10th Amendment did not create anything new, it just spelled out the way the Constitution was understood to operate. The Constitution does not give the federal government power over the RKBA. And the Constitution does not prohibit state power over the RKBA.

St. George Tucker, Blackstone's Commentaries 1:App. 185--87 - 1803

The powers absolutely prohibited to the states by the constitution, are, shortly, contained in article 1. section 10. viz.

1. No state shall enter into any treaty, alliance or confederation.

2. Nor grant letters of marque and reprisal.

3. Nor coin money.

4. Nor emit bills of credit.

5. Nor make any thing but gold and silver coin a tender in payment of debts.

6. Nor pass any bill of attainder.

7. Nor any expost facto law.

8. Nor any law impairing the obligation of contracts.

9. Nor grant any title of nobility. . . . Concerning all which, we shall make some few observations hereafter.