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To: billbears

The 2nd Amendment is not incorporated by the courts as we speak. Of course, what is going on here, is that plenty of people are interested in not incorporating the BOR, because it would get in the way of legislation they want passed. That said, it was clear from the Senatorial debates that full incorporation was what was intended. To say the a particular court case did not reflect this approach shortly after the passage of the 14th Amendment, is merely to say that the Supreme Court wanted to limit the BOR's applicability to the states. It did so contrary to the intent of the amemndments authors and the intent of the Congress in authorizing the amendment. It should be no surprise to anyone that the Courts screw things up this way. Separate but equal is another screwy doctrine that was the law of the land until the court reversed itself in Brown (IIRC and IANAL). Reversal of prescedents like in Brown is just another reminder why courts should and indeed must remain subject to the people rather than the other way around. There is a good discussion of the development of the 14th Amendment at http://www.constitution.org/col/intent_14th.htm


102 posted on 01/15/2006 2:08:21 PM PST by RKV ( He who has the guns, makes the rules.)
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To: RKV
All that's provided are a few views from some Senators. Consider as well that Rhode Island (and Oregon IIRC) rescinded their yes vote on the 14th for obvious reasons. I would suggest you read Fairman's view on the concern, one person who influenced Chief Justice Rehnquist apparently
In the fall of 1946, Fairman was developing views on the 14th Amendment that would prove influential among conservatives of the day, though Fairman himself did not identify with the political right. The amendment, adopted in 1868, provides: “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.” Fairman argued that the framers of the amendment had not intended to apply the Bill of Rights to the states. The “privileges and immunities” of citizens the amendment protected were limited to such matters as the making of contracts and service on juries, he said. The federal government’s powers to fight discrimination or other abuses by the states would, accordingly, be limited. “This is not merely an academic question,” Fairman wrote in a seminal 1949 Stanford Law Review article. “It presents itself insistently today because Justices of the Supreme Court are prepared to make decisions turn upon their reading of the historical record.” Indeed, he wrote in direct rebuttal of Justice Hugo Black, who was taking the opposite view of history in his opinions at the court.

Fairman’s narrow interpretation of the 14th Amendment likely came through in lectures to undergraduates such as Rehnquist. “He clearly taught that the 14th Amendment did not apply the Bill of Rights to the states,” Davies recalls.

Stanfordalumni.org

And personally I wouldn't give a spit for the Radical Republicans of 1866. However the 14th Amendment's intent as well as a discussion of some of the cases it has affected are found more in depth here.

Constitutional Freedom Foundation

114 posted on 01/15/2006 2:48:30 PM PST by billbears (Deo Vindice)
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