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"But it is universally understood, it is a part of the history of the day, that the great revolution which established the constitution of the United States, was not effected without immense opposition. Serious fears were extensively entertained that those powers which the patriot statesmen, who then watched over the interests of our country, deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the general government--not against those of the local governments." -- US Supreme Court, Barron v. Baltimore, 7 Pet. 243 (1833)

"The Second Amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress." -- US Supreme Court, U.S. v. Cruikshank, 92 U.S. 542 (1875), Presser v. State of Illinois, 116 U.S. 252 (1886)

Do you agree or disagree with this decision?

For those of you who have not been following this case, here is the recap.

The lawsuit is Lockyer vs Silviera (Lockyer is CA Attorney General, Silviera is one of the plaintiffs). Gary Gorski is the lawyer arguing for Silviera that California's Assault Weapon Ban is unconstitutional.

Stephen Halbrook is a NRA attorney, who doesn't think Gorski's case is a good one. The NRA thinks that a better case would be the Cato Institute vs Washington DC case, since its more direct (doesn't affect the states) case.

Trouble is, the Cato Institute case was not brought forth by the NRA. There was an attempt to enjoin the Cato case with one the NRA is bringing forth against Ashcroft (US Attorney General). The CATO boys don't think its a good idea since it makes their case much more difficult because now, the behemoth Department of Justice gets involved instead of the puffcake Washington DC.

NRA wants a guaranteed 2nd Amendment case that rules in favor of an individual rights interpretation, or no case at all (status quo). Its the guaranteed part that is important. The Gorski case is not guaranteed, but if its lost, it could ripple down to the states Neither is the Cato case, but if its lost, it doesn't ripple down to the states.

Cruikshank, and thus Presser which relies upon it, stand for the proposition that the intent of the 14th amendment was not to apply the guarantees of the first 8 amendments to the Constitution against the states but to protect something or other that was a unique attribute of United States citizenship against state infringement. The Court in those day said exactly the same thing about application of first amendment restrictions on state governmental action. In reality the entent of the 14th amendment was to do exactly what they said it wasn't. It's not really clear what they thought were the "priveleges and imunitites" of citizenship that the 14th reffered to, but they could have asked the authors and other Congresscritters who voted for it and their state legislative counterparts who voted to ratify it about that meaning, at least in the Cruikshank case.

Those early 14th amendment cases led directly to today's abuse of the "due process" and for that matter "equal protection" clauses of the 14th amendment. Latter, the Court, unlike the activist Court of today, didn't want to directly overrule the "Slaughterhouse" cases, and so had to come up with some other reason for applying those portions of the Bill of Rights that they favored, against the states.

Barron vs. Balitimore predates the 14th Amendment. Cruikshank and thus Presser rely in part on it. They are equally defective on that account. All of these cases point to the doctrine that the states do not need to obey the restrictions of the Bill of Rights. That doctrine has been overturned, but only for "favored" rights, by use of the due process and occasionally equal protection clauses of the 14th amendment, leaving the "priveleges and immunities" clause as an unwanted bastard, whereas in reality it was intended as the heart of the 14ths amendment's first section.