The Judgement vs The Historical Context of the Bill of Rights
When a body of free people determine to establish a government over themselves, they each surrender a portion of their individual natural sovereignty to this State which they create. For that State to act against the remaining liberties or rights of the people is masochism, for the State has no existance but as an embodiment of the people, and no powers but from the "Consent of the Governed". The common law rights, however spelled and defined, are those remaining, or residual, liberties and rights which the State shall not invade, for it was created without license to do the people harm. It is not bad poetry to refer to this limit, as the State having a Conscience towards it's people. When the States, acting each as if a person, surrendered part of their individuality and individual sovereignty, wherewith to create a new State, to wit the United States, the Federalists cried "Behold Saint Superman", and the anti-Federalists cried "Behold Frankenstein". "St Frankenstein" is closer to the mark. The cry for a Bill of Rights was a cry to assure that St Frankenstein possessed the same conscience towards the people as did the several States. Therefore, not only did the Bill of Rights apply to the States, it was impossible that it not apply.
This assertion, that the common law rights declared in the Bill of Rights were sure limitations on the local government, because the Bill of Rights was established as limitations on Government, Period, is no strange doctrine. Numerous examples exist where state Courts took guidance from the federal Bill of Rights, or even considered it binding upon them:
The Georgia State Supreme Court held that the Bill of Rights protected natural rights which were fully as capable of infringement by states as by the federal government, and that the Second Amendment provided "the right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not merely such as are used by the militia, shall not be infringed, curtailed, or broken in on, in the slightest degree; and all this for the important end to be attained: the rearing up and qualifying of a well regulated militia, so vitally necessary to the security of a free state."
Note, Georgia did not have a Bill of Rights at this time, nor a Right of Arms provision in it's Constitution, so the reference to the federal Bill of Rights was not mere courtesy: The judges of Georgia's Supreme Court believed that they, like the rest of the Nation, were bound by the federal Bill of Rights.
The Court recognized the right to keep and to bear arms, saying "This is the right guaranteed by the Constitution of the United States".
Again the Court held that the Second Amendment overruled State law to the contrary, albeit inventing an amendment to the amendment that "the right of the to keep and bear arms openly shall not be infringed."
Again, the State Supreme Court held that the Second Amendment to the Federal Constitution must be obeyed by the State, and repeated the amendment to that amendment that "the right of the people to keep and bear arms openly shall not be infringed."
Texas' Supreme Court cited the U.S. Constitution, Second Amendment, and the Texas Constitution Bill of Rights Art 13, stating "It is contended, that this article of the Code [bowie knife use in a manslaughter circumstance would be considered murder and punished accordingly] is in violation of the Constitution of the United States, and of this State." The Court then propounded the purposes of both Constitutional provisions, indicating that both applied to the State. Then wrote the Court "The Object of the first clause cited, has reference to the perpetuation of free government, and is based on the idea, that the people cannot be effectually oppressed and enslaved, who are not first disarmed. The clause cited in our Bill of Rights, has the same broad object in relation to the government, and in addition thereto, secures a personal right to the citizen. The right of a citizen to bear arms, in the lawful defence of himself or the State, is absolute. He does not derive it from the State government, but directly from the sovereign convention of the people that framed the State government. It is one of the 'high powers' delegated directly to the citizen and 'is excepted out of the general powers of government.' A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the law-making power."
Here, on the eve of the Civil War, or on it's first dawn's light, the Bill of Rights of the United States again received honor by the Supreme Court of Georgia. The Concealed Carry prohibition received this demise: "it is impossible for one to have and bear about his person a pistol or weapon of any kind, without having some part of the weapon concealed from view," and "to enforce the law, as the Court construed it to the jury, would be to prohibit the bearing of these arms altogether, and to bring the act within the decision in Nunn's case." Nunn's case (supra) hinged upon the federal Bill of Rights, which the Georgia High Court took to be binding upon the State.
And those are just weapons law cases, and just those that could easily be found in Clayton Cramers' In The Defense of Themselves and the State. There are, doubtless, other such decisions, weapons law and otherwise, which are yet to be brought to light.
Defendants consider it noteworthy, One, that in State v. Newsom 5 Iredell 181, 27 N.C. 250, 250-253 (1844), the Court cited Barron v. Baltimore as annulling a Second Amendment claim against a weapon law in a State Court; and Two, the defendant was a Negro. Barron has never been cited by a Court in the interests of upholding rights, but only in pursuit of pretext for denial of rights. We should guess, if the Bill of Rights is inapplicable to the States, so are the judgements of the Supreme Court?-->
The Judgement vs Stare Decisis
Constitutional Authorities, widely recognized and respected as expert on the Constitution, echo the above obvious point: The Bill of Rights affects and binds the States by virtue of the Rights declared therein. In the matter at bar, whether the Second Amendment binds the states, the applicable stare decisis is the intentions in the minds of the authors of the Constitution, the Bill of Rights, and, (since 1867), the authors of the Fourteenth Amendment.
In the second article, it is declared, that a well regulated militia is necessary to the security of a free state, a proposition from which few will dissent.
The corollary, from the first position, is that the right of the people to keep and bear arms shall not be infringed.
The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both...A View of the Constitution, 1829; 125-6, emphasis added.
[With respect to] the principal absolute rights of individuals.
To secure their enjoyment, however, certain protections or barriers have been erected which serve to maintain inviolate the three primary rights of personal security, personal liberty, and private property, These may in America be said to be:Commentaries on the Laws of Virginia V 1 p 43, emphasis added, (1831)
- The bill of rights and written constitutions...
- the right of bearing arms--which with us is not limited and restrained by an arbitrary system of game laws as in England; but is particularly enjoyed by every citizen, and is among his most valuable privileges, since it furnishes the means of resisting as freemen ought, the inroads of usurpation.
- the right of applying to the courts of justice for the redress of injuries.
The right of the people to keep and bear arms shall not be infringed...and this without any qualification as to their condition or degree, as in the case in British government...Blackstone Commentaries V 1 P 143 n40 (St. George Tucker ed., emphasis added, 1803).The right of self-defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Whenever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally under the specious pretext of preserving the game; a never-failing lure to bring over the landed aristocracy to support any measure...
§ 1889. The next amendment is: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."
§ 1890. The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large militiary establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of the republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.
Note the total lack of any indication that this applied only to federal usurpation of power by rulers, or to federal subversion, or federal trampling of Rights, and the the total lack of any language indicating that the arms, or the capacity embodied therein to resist tyranny, belonged to the states, or rested with the people only upon the sufferance of the state. Note the arms are in the hands of citizens, not to enrolled members of a state organization, and note that the people are credited with the ability to triumph against usurpers, not states. Thus, his language is as applicable to citizens overthrowing state tyranny as it is to overthrowing federal tyranny. For this to be, the power to disarm the People cannot be found in state or federal hands. Joseph Story's Commentaries assumes that the Bill of Rights, at least the Second Amendment, restrains the states from disarming their people. As his writing here was to propound the origin and intention of the Constitution, it was Stare Decisis relative to Barron as well as to the matter at bar today.
How, one should ask, should the Keeping and Bearing of Arms by the People (as in the Second Amendment) afford the United States any security, if the Second Amendment is inapplicable to the States, such that they, the States, may all disarm their whole populations? The Standing Army? Look to The Debates, and count the points of fear of a Standing Army, and the points of Fear for and in behalf of a disarmed populace. The gap between the intentions of the authors of the Bill of Rights, and of the Court in Barron v. Baltimore, is large enough to frustrate the hopes behind the formation of the Union itself. A disarmed populace, dependant on a standing army, would never have succeeded in repulsing the Kings' army in the 1770's, (for the only army was that of the King), nor in resisting them again in the 1810's. They would have been ineffectual against the Mexican authority in Texas or Upper California in the 1840's, as all these militiary actions required armed citizens to to lay aside their work-a-day occupation, and, usually with their own arms, perform the martial work. The Civil War proved the whole point two ways: It cost the North $1,740,036,689 of public debt (as estimated in 1865 in 1865 dollars) to fund a professional army capable of defeating the militias-cum-armies of the Southern States. Had the North rebelled rather than the South, the South could not have interdicted.
Thus,
But only if the Second Amendment is binding upon the states. Elsewise its effect is not guaranteed to exist at all.
It merits belaborment: At the time of the debates in the State conventions on the proposed Amendments to the Constitution of the United States, the language of the delegates reflected their understanding that their States were each as bound by the provisions of the Bill of Rights as was the Federal Government. In affixing the Bill of Rights to the Federal Constitution, the State legislatures were doing no more to the Federal government than what was already done to the several States by the people thereof, whether explicitly by a Constitution and Bill of Rights (as in Virginia), or by a Constitution without a bill of rights (as in New York), or in a Commonwealth without a constitution or a bill of rights, (as in Connecticut or Rhode Island). It is accurate to label the Bill of Rights as the People establishing a Bill of Limitations on Government. Not one legislator in any legislature agreed to any provision(s) of the (proposed) Bill of Rights on the condition that the Right or Limit in question did not apply to that State. This was so for ancient rights such as the Right of Keeping and Bearing Arms and Jury Trials in all criminal matters; for new rights wherein the American Common Law differed sufficiently from the English Common Law that the point was not univeral in the States, such as the Rights of Freedom of the Press, Speech, and Religion, the restriction was aimed at the Congress explicitly. The American common law, inter alia the Right to Arms, was Sacrosanct everywhere (if you were a free white man).
For the Supreme Court to show neither conscience nor compassion for the Common Law was repugnant to the Constitution. -->
The common law was the "Supreme Law of the Land" in each State between the time of the Declaration of Independence and the Ratification of the Constitution of the United States. Look upon the debates in each State pertaining to the establishment of a Constitution therein, (and in the legislatures of Rhode island and Connecticut which had no Constitutions in that time period) and see if you can find so much as one word disparaging the English common law among them, or the American common law, which the Americans held to be but a small set of improvements on the English common law. There is not one such disparaging comment. The question addressed in the appeal of Mr. Barron in Barron v Baltimore was whether the State was restrained by the common law rights.
The driving reason for a Federal Bill of Rights (and for the Bills of Rights in the Constitutions of the States that had such bills) was to protect the Rights of the People under the common law from invasion by Government. This acceptance of the common law was universal and (nearly) uniform throughout the States. In short, no State could claim the Bill of Rights affixed to the Federal Constitution had no effect on that State without in those same words declaring that the common law rights were discarded by that State. The doctrine that a declaration of a Right shall not be binding upon an inferior level of government than where that right is declared presumes that, when we wrote the Declaration of Independence, we were just kidding. Every complaint we had against George III, our King, was that he abused our Rights or deserted their protection. "But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such government.." makes plain that any campaign of tyranny (defined as invasion of rights, or abandonment of their protection) is a proper target for bloodshed and rebellion.
Any doubt as to this assertion should be dispelled by reading New York's letters to the Continental Congress declaring the provisional and conditional ratification of the Constitution of the United States, 26 July 1788, from which we excerpt: "We, the delegates of the people of the state of New York, duly elected and met in Convention, having maturely considered the Constitution for the United States of America, agreed to on the 17th day of September, in the year 1787, by the convention then assembled at Philadelphia, in the common wealth of Pennsylvania, (a copy whereof precedes these presents,) and having also seriously and deliberately consitered the present situation of the United States, --Do declare and make it known,-- -->
"That all power is originally vested in, and consequently derived from, the people, and that government is instituted by them for their common interest, protection, and security.
"That the enjoyment of life, liberty, and the pursuit of happiness, are essential rights, which every government ought to respect and preserve.
"That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness; "That the people have an equal, natural, and unalienable right freely and peaceably to exercise their religion, according to the dictates of conscience; and that no religious sect or society ought to be favored or established by law in preference to others. -->
"That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state. ((NB, the italic emphasis is original!)) "That standing armies, in time of peace, are dangerous to liberty, and ought not to be kept up, except in cases of necessity; and that at all times the militiary should be under strict subordination to the civil power.
"That, in time of peace, no soldier ought to be quartered in any house without the consent of the owner, and in time of war only be the civil magistrate, in such manner as the laws may direct.
"That no person ought to be taken, imprisoned, of disseized of his free hold, or be exiled, or deprived of his privileges, franchises, life, liberty, or property, but by due process of law.
"That no person ought to be put twice in jeopardy of life or limb, for one and the same offence; nor, unless in case of impeachment, be punished more than once for the same offence.
"That every person restrained of his liberty is entitled to an inquiry into the lawfulness of such restraint, and to a removal thereof if unlawful; and that such inquiry or removal ought not to be denied or delayed, except when, on account of public danger, the Congress shall suspend the privilege of the writ of Habeas Corpus.
"That excessive bail ought not to be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted.
"That (except in the government of the land and naval forces, and of the militia when in actual service, and in cases of impeachment) a presentment or indictment by a grand jury ought to be observed as a necessary preliminary to the trial of all crimes cognizable by the judiciary of the United States; and such trial should be speedy, public, and by an impartial jury of the county where the crime was committed; and that no person can be found guilty without the unanimous consent of such jury. But in such cases of crimes not committed within any county of any of the United States, and in cases of crimes committed within any county in which a general insurrection may prevail, or which may be in the possession of a foreign enemy, the inquiry and trial may be in such county as the Congress shall by law direct; which county, in the two cases last mentioned, should be as near as conveniently may be to that county in which the crime may have been committed;--and that, in all criminal prosecutions, the accused ought to be informed of the cause and nature of his accusation, to be confronted with his accusers and the witnesses against him, to have the means of producing his witnesses, and the assistance of counsel for his defence; and should not be compelled to give evidence against himself.
"That the trial by jury, in the extent that it obtains by the common law of England, is one of the greatest securities to the rights of a free people, and ought to remain inviolate.
"That every freeman has a right to be secure from all unreasonable searches and seizures of his person, his papers, or his property; and therefore that all warrants to search suspected places, or seize any freeman, his papers, or property, without information, upon oath or affirmation, of sufficient cause, are grievious and oppressive, and that all general warrants (or such in which the place or person suspected are not particularly designated) are dangerous, and ought not to be granted.
"That the people have a right peaceably to assemble together to consult for their common good, or to instruct their representatives, and that every person has a right to petition or apply to the legislature for redress of grievances.
"That the freedom of the press ought not to be violated or restrained.
"That there should be, once in four years, an election of the President and Vice-President, so that no officer, who may be appointed by the Congress to act as President, in case of the removal, death, resignation, or inability, of the Presedent and Vice-President, can in any case continue to set beyond the termination of the period for which the last Presedent and Vice-President were elected.
"That nothing in the said Constitution is to be construed to prevent the legislature of any state from passing laws at its discretion, from time to time, to divide such state into convenient districts, and to apportion its prepresentatives to and amongst such districts.
"That the prohibition contained in the said Constitution, against ex post facto laws extends only to laws concerning crimes.
"That all appeals in causes determinable according to the course of the common law, ought to be by writ of error, and not otherwise.
"That the judicial power of the United States, in cases in which a state may be a party, does not extend to criminal prosecutions, or to authorize any suit by any person against a state.
"That the judicial power of the United States, as to controversies between citizens of the same state, claiming lands under grants from different states, is not to be contrued to exted to any other controversies between them, except those which relate to such lands, so claimed, under grants of different states.
"That the jurisdiction of the Supreme Court of the United States, or of any other court to be instituted by the Congress, is not in any case to be increased, enlarged, or extended, by any faction, collusion, or mere suggestion; and that no treaty is to be construed so to operate as to alter the Constitution of any state.
"Under these impressions, and declaring that the rights aforesaid cannot be abridged or violated, and that the explanations aforesaid are consistent with the said Constitution, and in confidence that the amendments which shall have been proposed to the said Constitution will receive an early and mature consideration,---We, the said delegates, in the name and in the behalf of the people of the state of New York, do, by these presents, assent to and ratify the said Constitution. In full confidence, nevertheless, that, until a convetntion shall be called and convened for the proposing amendments to the said Constitution, the militia of this state will not be continued in service out of this state for a longer term than six weeks, without the consent of the legislature thereof; that the Congress will not make or alter any regulation in this state, respecting the times, places and manner, of holding elections for senators or representatives, unless the legislature of this state shall neglect or refuse to make laws or regulations for the purpose, or from any circumstance be incapable of making the same; and that, in those cases, such power will only be exercised until the legislature of this state shall make provision in the premises; that no excise will be imposed on any article of the growth, production, or manufacture of the United States, or any of them, within this state, ardent spirits excepted; and the Congress will not lay direct taxes within this state, but when the moneys arising from the impost and excise shall be insufficient for the public exigencies, nor then, until Congress shall first have made a requisition upon this state to assess, levy, and pay, the amount of such requisition, made agreeably to the census fixed in the said Constitution, in such way and manner, as the legislature of this state shall judge best; but that in such case, if the state shall neglect or refuse to pay its proportion pursuant to such requisition, then the Congress may assess and levy this state's proportion together with interest, at the rate of six per centum per annum, from the time at which the same was required to be paid.
"Done in Convention, at Poughkeepsie, in the county of Duchess, in the state of New York, the 26th day of July, in the year of our Lord 1788.
"By order of the Convention. George Clinton, President Attested. John M'Kesson, A.B. Banker, Secretaries. " -->
Did New York, in it's Constitutions of 1777 (first) or 1786 (operative at the time of this ratification), claim power from the people to invade the rights of the people? It explicitly did not.
Defendants challenge anybody to find even one legislator, in any ratification debate, stating anything to the effect that these limitations, the Bill of Rights, either as proposed or as ratified, did in no wise tie the hands of the state legislatures, that the states were instead free to forbid one Church and impose another; that they could punish any speech and every publication; that assembly and petition were at the discretion of the (state) Legislature; that no man's guns were secure to him but that the state could claim a monopoly on Force within that state; that Search and Seizure were, throughout the state, at the discretion of the state, whether by general warrant, or without cause or warrant altogether; that Due Process was a right in the federal Courts, but merely a vain wish in the Courts of the state; that compulsory means were the states, and that the defendant was on his bloody own; that in criminal cases Counsel was yours if you could afford it and if the Court allowed, that Juries were at the Courts discretion; that the common law in civil matters was for federal Courts only; and that punishments, bails and fines were the pleasure of the legislature regardless of degrees or methods. Your search will be in vain. The states demanded such limitations on the federal Government as were generally upon them already both as well in states with Bills of Rights, as those with Constitutions that had no Bill of Rights, as in states, both of them, that had not even a Constitution. They were bound by the Bill of Rights not because of the ink on the paper, but because of the common law rights the Bill of Rights arose from.
In conclusion on this point:
We consider Barron v Baltimore to be well proved both historically counterfactual and intrinsically nonsensical. Let it be understood that the Bill of Rights never was irrelevant to the states.
Applicability: The key to understanding the 14th Amendment, is to look upon it as it's authors did: Medicine to cure an illness. Part of that illness was the effect of Barron v. Baltimore (vide supra), and the 14th Amendment was intended to cure it. Another intended effect of the 14th Amendment was to destroy the effect of Dred Scott v. Sandford.
Scott has applicability to the matter and statute at bar also because it undermines Barron v. Baltimore, as has already been shown, and because it underscores the fundamental, personal, individual nature of the Right to Arms.
Dred Scott v. Sandford ruled on a few things:
These points were all related by the factors involved in Mr. Scott, his wife Harriett, and two daughters being taken, as slaves, North of the Missouri Compromise line, then taken back to Missouri, then sold to another man. Mr. Scott filed several suits and appeals, one of which came up to the Supreme Court as Dred Scott v. Sandford.
Before delving into the Missouri Compromise itself, the Court, by the pen of Mr. Justice Taney, reflected on the laws and customs of the several States at the time of the founding of the Constitution of the United States, upon the subject of Negroes and their status under those laws, and whether that status was compatible with the threshold of being competent to file a suit in Federal Court.
In it's discourse upon the subject, the Court negated Barron v. Baltimore, discussed above. We provide a few quotes from Scott, some being lengthy, which together show faithfully the points of applicability: Citizens own a Right to Arms, this Right is uninfringeable by the States, and, the Bill of Rights is why. That does negate Barron v. Baltimore.
[60 U.S. 393, 404]The words 'people of the United States' and 'citizens' are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the 'sovereign people,' and every citizen is one of this people, and a constituent member of this sovereignty.
[60 U.S. 393, 415]By the laws of New Hampshire, collected and finally passed in 1815, no one was permitted to be enrolled in the militia of the State, but free white citizens; and the same provision is found in a subsequent collection of the laws, made in 1855. Nothing could more strongly mark the entire repudiation of the African race. The alien is excluded, because, being born in a foreign country, he cannot be a member of the community until he is naturalized. But why are the African race, born in the State, not permitted to share in one of the highest duties of the citizen? The answer is obvious; he is not, by the institutions and laws of the State, numbered among its people. He forms no part of the sovereignty of the State, and is not therefore called on to uphold and defend it.
[60 U.S. 393, 416,417]The legislation of the States therefore shows, in a manner not to be mistaken, the inferior and subject condition of that race at the time the Constitution was adopted, and long afterwards, throughout the thirteen States by which that instrument was framed; and it is hardly consistent with the respect due to these States, to suppose that ... when they met in convention to form the Constitution, they looked upon them as a portion of their constituents, or designed to include them in the provisions so carefully inserted for the security and protection of the liberties and rights of their citizens. It cannot be supposed that they intended to secure to [Negros] rights, and privileges, and rank, in the new political body throughout the Union, which every one of them denied within the limits of its own dominion. More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.
[60 U.S. 393, 450, 451] For example, no one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances.Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding.
These powers, and others, in relation to rights of person, which it is not necessary here to enumerate, are, in express and positive terms, denied to the General Government; and the rights of private property have been guarded with equal care. Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.
So, too, it will hardly be contended that Congress could by law quarter a soldier in a house in a Territory without the consent of the owner, in time of peace; nor in time of war, but in a manner prescribed by law. Nor could they by law forfeit the property of a citizen in a Territory who was convicted of treason, for a longer period than the life of the person convicted; nor take private property for public use without just compensation.
The powers over person and property of which we speak are not only not granted to Congress, but are in express terms denied, and they are forbidden to exercise them. And this prohibition is not confined to the States, but the words are general, and extend to the whole territory over which the Constitution gives it power to legislate, including those portions of it remaining under Territorial Government, as well as that covered by States. It is a total absence of power everywhere within the dominion of the United States, and places the citizens of a Territory, so far as these rights are concerned, on the same footing with citizens of the States, and guards them as firmly and plainly against any inroads which the General Government might attempt, under the plea of implied or incidental powers. And if Congress itself cannot do this-if it is beyond the powers conferred on the Federal Government-it will be admitted, we presume, that it could not authorize a Territorial Government to exercise them. It could confer no power on any local Government, established by its authority, to violate the provisions of the Constitution.
From page 404, we see (as in U.S. vs Verdugo-Urquidez) that "the people" means the citizenry, and the Second Amendment, therefore, does not refer to organizations where it uses "the right of the people".
From page 415, we see that militia duty is upon all citizens able to bear it, and no person, otherwise able to bear Militia duty, is excluded from the Militia without also being excluded from the Citizenry. That exclusion is held to be a bitter repudiation.
From page 416, emphasis illustrates the same principal as overthrows Barron v. Baltimore: Recalling that New York, and that vociferously, demanded a protection of the right to keep and bear arms in the Federal Bill of Rights; did New York support establishment of a federal Right to Arms which New York intended to deny us upon our becoming Citizens of New York? Making rights of some acts at the federal level, whilst making crimes of the same acts at state level, quoth the Chief Justice, "cannot be supposed", meaning such notions would be spelled out explicitly, if they were intended at all. This explicit notation is present in the First Amendment, it is not present in the Second Amendment or elsewhere in the Bill of Rights.
From page 417, we see what the rights of citizens are, particularly that portion greatly emphasized, and that those rights are not subject to the prejudice of the states. Elsewise, if these rights were subject to the prejudices of the states, meaning if Barron was spot-on, Negro citizens entering Georgia would be reduced to the same status there as free Georgia Negros, because (as we assume) the Bill of Rights gave nothing to Negros in Georgia, and Georgia gave little to it's free Negros. However, per the Court in Scott, in contradiction to Barron v. Baltimore, Rights were Rights everywhere, if at federal level then also in each state, and that those rights included "to keep and carry arms" in a clearly personal context. Therefore, if Negroes were citizens of the United States, then Negro citizens have the same Right to Keep and Bear Arms as Whites, because of the Bill of Rights.
For the thought that a State might deprive all citizens of some right equally (such as owning handguns) we need study the next quote.
From pages 450 & 451, we see that Congress cannot play the despot in any unorganized Territory, and we see that Congress cannot organize a despotic Territory government. It follows that, when and if that Territory should become a State within the Union, that new State could not obtain those despotic powers either. The reason: the restraint upon the Congress were also upon the States, new and old; the Bill of Rights was a set of restraints upon government, that there shall be no despotism anywhere. Not in any of the states is there any indication that the state government may play the despot over them.
Our study of Dred Scott v. Sandford continues with this question: Why could not the free States forbid slave owners from entering with their slaves, nor pronounce Freedom upon all slaves brought into their jurisdiction, thereby preventing masters from forcibly taking slaves back into slave States? True, the Constitution required that the fugitive slave be truly delivered over to his master, but did not prohibit the free states from simply declaring the emancipation of all slaves brought into their territory, or possessed therein. Whatever name you give the reason, it manifests in the 5th Amendment: the property cannot be taken from it's owner without both due process and just compensation.
Now consider that defendants came into New York, which forbids New Yorkers from buying or possessing pistols, with their two pistols. Brian's is called, Dred, and Debra's is called, Harriett. Compare this to Dr. Emerson, coming into the State of Illinois, and into territory under the direct operations of the Congress, with his two slaves, Dred Scott and his wife Harriett. Why should his claim upon his property be untouchable by that state, and by the United States, whilst our pistols are subject to seizure upon discovery and subsequent destruction as "nuisances", and we subject to arrest for the possession of the same? This power, to take from us our arms by declaring them contraband or nuisance, is not in the police powers of the state.
As for our being obliged to surrender our handguns upon our becoming residents in the State, we have addressed that question elsewhere and shall add thereunto as we proceed. This point clarifies that the State cannot declare our handguns contraband upon our mere entry into or transit across the State, which this statute does.
The effect of the Scott decision (Negroes aren't citizens and can't sue in Federal Court) was destroyed by the 14th Amendment § 1 sentence 1. The truth of the nature and scope of Rights herein discussed was not. Let the adherents of Barron vs Baltimore consider this 1858 decision to overrule, however implicitly, the 1833 decision of their fancy.
A most brief overview of the Black Codes is relevant to understanding the 14th Amendment, particularly to understand how the 14th Amendment made laws like the Statute At Bar impossible, or at least unconstitutional, which should mean the same thing, but alas does not.
"No Negro or Mulatto shall..."
High on the list of National Acts of Shame are the Black Codes, the Jim Crow Laws, which segregate and denigrate Americans, with the power of law and the violence of enforcement, on the basis of ancestry. Some laws were silly, giving a water fountain to blacks and a water cooler to whites, some were obscene, requiring businesses to establish bathrooms for white men, bathrooms for white women, and a bathroom for colored people of both genders together, and some were contemptuous of their lives, denying Negros ownership of handguns or other arms, while allowing that whites be as armed as they pleased. These laws either spelled out that "[n]o negro or mulatto shall", or required that (e.g.) Jurors be "of good moral character" with an assumption manifest in decades of operation that naturally no negros or mulattos were in fact "of good moral character" and thus never appeared amongst the Jurors.
The 38th &39th Congresses thought that Black Codes were impossible because the 13th Amendment abolished slavery, not just chains, the auction blocks, and the whips. If the 13th Amendment only abolished the chains, there was precious little for the Congress to enforce by law (see Amendment 13 § 2 Congress shall have power to enforce this article by appropriate legislation). Thus, the Congress wrote Civil Rights laws upon the 13th Amendment authority as though the 13th Amendment implied everything the 14th Amendment § 1 declared. The Courts rebelled. The Congress concluded to write the 14th Amendment to make the implicit explicit. The Black Codes were a special target of the 14th Amendment. Many Jim Crow Laws, including those disarming blacks, were debated on the floor of the House and Senate in the preparing and proposing of the 14th Amendment, and were a strongly persuasive reason for passing the proposed 14th Amendment. This greatest Amendment was the highest hope for cleansing the Nation of the venom called Bigotry that poisoned the United States, and each of them, nearly to death.
Alas, the Courts rebelled against the 14th Amendment as well, for there is nothing for the 15th Amendment to accomplish that the 14th, if obeyed, would not have accomplished. Shall not all Citizens vote as they please? Were not Negroes, by the 14th Amendment, Citizens? Why, then, an Amendment to secure the right to vote to Citizens? Because of rebellion, by the state legislatures and federal Courts, against the 14th Amendment.
Alas, but no surprise, the 15th Amendment met with rebellion, in the form of qualification tests for voting such as being of "good moral character" and literacy tests.
Joke: A White man goes to vote, is handed the New York Times, and told "Read me page 2 column 2." He does so, and is allowed to vote. Next a Negro comes to vote, and is handed the Peking Daily (Mandarin version) and told "Read me page 3 column 3." The black man looks at it, looks up to the inquisitor, and answers "It says Blacks don't vote in this town." Now: Since he interpreted page 3 col 3 of the Peking Daily correctly, was he allowed to vote?
No, and the rebellion of the Courts continued and increased until "Separate But Equal" was a Law supreme to the Constitution of the United States.