Intent of the Fourteenth Amendment was to Protect All Rights
Jon Roland 2000 Sep. 24
The main clauses of the Fourteenth Amendment are:
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.
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Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
This seemingly simple language has given rise to endless controversy over its interpretation. Beginning with the Slaughterhouse Cases, the Supreme Court has decided cases involving the Fourteenth by selectively invoking only the most minimal and restrictive rights needed to decide each case, and never declaring in dictum that the Fourteenth protects all rights recognized by the Constitution. This has led to the doctrine of selective incorporation of the Bill of rights, most of which have eventually been included in the protection, but a few of which have not.
Two of the rights recognized in the Bill of Rights that have not been "incorporated" are the right to keep and bear arms of the Second Amendment, and the Fifth Amendment right, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, ...."
The Supreme Court has avoided taking any cases that would require it to rule on the right to keep and bear arms, but it did take a case, Hurtado v. California, 110 U.S. 516 (1884), in which it held that a state was not required to indict by grand jury. The issues were set forth well by Justice Harlan in Hurtado, whose dissenting opinion is correct. Unfortunately, the majority did not agree with him. The state was California, and although grand juries in California still have the power of indictment, most crimes are prosecuted upon an information, which is only a finding by a lower magistrate. On the basis of this decision, a few states have even eliminated the grand jury system altogether.
This statements of the Fourteenth were adopted for a reason. They were not without force and effect. They were intended by the framers of the Fourteenth to extend the jurisdiction and protection of federal courts to all rights recognized by the Constitution and Bill of Rights against actions by state government.
First, "any law" includes the state constitution, which is its supreme law, subject to the U.S. Constitution.
Second, "immunities" includes all those rights recognized and protected by the Constitution and Bill of Rights, including those of the Ninth and Tenth Amendments.
The framers of the Fourteenth used "immunities" because the rights recognized and protected by the Constitution and Bill of Rights are rights against action by government, which are "immunities", as distinct from nonvested rights of business.
If there is any futher doubt as to what the framers of the Fouteenth meant by their words, a book by Stephen P. Halbrook,
'Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876', Westport, CT: Praeger, 1998, is recommended.
34 posted on
02/21/2004 6:53:24 PM PST by
tpaine
(I'm trying to be 'Mr Nice Guy', but the U.S. Constitution defines conservatism; - not the GOP. .)
To: tpaine
So, from your own cite which you chose to post, you finally admit that the 2nd amendment does not apply to the states.
Well, congratulations for at least getting that one correct.
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