I wish to invoke the rights granted to me by the 5th amendment.
Flame retardant suit ONThe Bill of Rights did not “grant” any right to any one.How so? The BoR was a keeping of a promise which the Federalists were forced to make by the Antifederalists. But they faced a tricky problem, because rights codified in the first and second amendments - to make the most obvious point - already existed in the states under the Articles of Confederation. The intent of the first eight amendments was to be a shiny object - the real deal isand
- Amendment 9
- The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
- Amendment 10
- 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 original intent of the unamended Constitution is encapsulated in 9 and 10. And the proper meaning of 1 thru 8 is that they enumerate rights which uncontroversially preexisted the Constitution.
2A refers to “the” RKBA; in order to write the Heller decision Scalia did a deep dive into history to define exactly what the RKBA actually was when 2A referred to it. He did not just say, “anyone can have a nuclear bomb because RKBA.”
Contrariwise in the Sullivan decision the Warren Court glossed over all prior court rulings on the effect of 1A on libel law. Because they wanted to stop libel suits by public officials - and they made up a story to the effect that 1A modified libel law. When all 1A was intended to do was assure everyone that there would be no change in the right to speak and print. To have done anything else would have risked controversy which would endangered the legitimacy of the new Constitution.