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.) -- [c d t] at [rocket.sw.stratus.com] --If you believe that I speak for my company, OR [c d t] at [vos.stratus.com] write today for my special Investors' Packet...