Does the 2nd Am restrict all govts? Or just Fed govt?

[Little-Acorn]

Does the 2nd amendment ban all governments in the US (Federal, state, and local) from infringing in the RKBA? Or does it just ban the Fed govt from doing so, while permitting state and local govts to infringe?

I've got quite an argument going with a lawyer on another board (a gun board, in fact, and he's mostly pro-gun) over this subject. He says that it only restricts the Fed govt from infringing on the people's right to keep and bear arms, but it's constitutional for a state to ban guns. I say it's unconstitutional for any govt (Fed, state, or local) to restrict or ban gun ownership. There are a lot of arguments on both sides.

Anyone have an opinion here?

 

[Soybomb]

The lawyer is (not surprisingly) correct in modern interpretation of the constitution. Read about incorporation to learn more about why you have constitutional protection of things like freedom of speech from states. Most state constitutions included basic rights issues in their constitutions initially for this reason.

 

[Wiley]

As all states had/have to agree to abide by the Federal constitution before admitance...I'm with you, L-A.

If the Legal Beagle's argument is correct then the several states could overrule the 1st, 4th, 5th, etc. His argument is wrong.

 

[The Real Hawkeye]

Does the 2nd amendment ban all governments in the US (Federal, state, and local) from infringing in the RKBA? Or does it just ban the Fed govt from doing so, while permitting state and local govts to infringe?

I've got quite an argument going with a lawyer on another board (a gun board, in fact, and he's mostly pro-gun) over this subject. He says that it only restricts the Fed govt from infringing on the people's right to keep and bear arms, but it's constitutional for a state to ban guns. I say it's unconstitutional for any govt (Fed, state, or local) to restrict or ban gun ownership. There are a lot of arguments on both sides.

Anyone have an opinion here?

Well, I have been on both sides of this debate over the years. What I always come back to is that the Bill of Rights was originally put in place as a restriction by the States on the powers granted, via the US Constitution, to the Federal Government. Now, within the wording of that restriction of power is also a statement that the Right of the People to Keep and Bear Arms Shall Not Be Infringed. So what we have is an acknowledgment of the right, belonging to the people, to keep and bear arms (not granted to the people by any level of government), and that it shall not be infringed, but the "shall not be infringed" part (the only part which is relevant to your argument, the preceding part only stating a preexisting fact, and not a point of law) only has force of law with regard to the Federal Government, because it is contained within a legal document restraining the Federal Government.

Now, under the Fourteenth Amendment, you could make some arguments that the Federal Government is authorized to prevent the States from denying us any of the liberties traditionally enjoyed by Americans (e.g., the liberty to exercise our right to keep and bear arms) without due process of law, or perhaps you could make the argument with reference to equal protection of the laws, since most States allow off duty police officers to carry their weapons wherever they like, while denying this liberty to non-police officers.

Anyway, that's about where I stand on the matter, for what it's worth. At least that's where I stand at the moment. I am open to being persuaded differently.

 

[Little-Acorn]

The lawyer is (not surprisingly) correct in modern interpretation of the constitution.

Yes, he is... but that is not the question here. And that's part of the friction I'm having with him.

"Modern interpretation of the Constitution" is a way of saying, "What most legal people think it means". But does that always correspond to what it actually says? And if it actually says something different from what "most legal people" agree on, then who should hold sway?

I hold that it does say something different from what most legal types agree on. And that the actual language should hold sway over the original intent of the writers, unless the actual language is unclear. In these amendments, it's very clear.

The 1st amendment says, "Congress shall make no law" about certain things. It's a restriction on Congress - that is, the Fed govt - ONLY. Sounds weird, but this would mean that while the Fed can't make a law restricting or boosting religion, or restricting speech, state and local govts CAN if they want to.

OTOH, the 2nd (and the 4th) merely say that certain things cannot be done. Those amendments don't say who can't do them. I hold that this means NO govt in the US - Fed, state, or local - can do those things, such as restrict guns, conduct unreasonable searches, etc.

The lawyer on the other board disagrees. He points out that when the Const was first written and ratified, it had no Bill of Rights (true, it was added several years later). Freedom of speech, freedom of religion, right to KBA, etc., were not mentioned anywhere in the Constitution at that time. And the Framers though that was sufficient: The Const created the Federal govt, and gave it its powers. If a power wasn't explicitly listed, then the Fed govt didn't have that power. And the powers to restrict speech, guns etc. were not listed. So no explicit prohibition was necessary.

But the BOR was added soon after, to cast the more important of those prohibitions on government, in stone. And this lawyer says the BOR was intended to do only what the original omission of those powers from the Constitution, had done: Prohibit the Fed govt only, from using them.

AFAIK, he is pretty much right. BUT.....

I hold that once the BOR was written and ratified, it no longer mattered what the Framers intended it to do. All that mattered from then on, was what the actual language of the amendments, said. THEY are the law, not the Framers' intentions.

The 1st said that CONGRESS could not restrict or boost religion, or do certain other things. It didn't mention the states, so it did not restrict the states from doing those very things if they wanted. Sounds unlikely, but that's what the clear language of the amendment says.

The 2nd says that the RKB shall not be infringed. It doesn't say by whom, unlike the 1st amendment. So that means, by anybody. Fed, state, or local govts cannot infringe the RKBA according to the clear language of the 2nd amendment... unlike the restrictions imposed by the 1st amendment, which apply to the Fed only.

The lawyer says that, though the worded those two amendments differently, they intended both of them only to restrict the Fed, not the states. I say, that can't be true. The Framers weren't dummies, and in fact they were very experienced lawyers who knew the critical importance of wording laws in exactly the right way. No way would they write one thing while meaning another.

What do you say?

 

[RealGun]

I think you are right, but you will lose the argument with a good lawyer. I am currently reading "No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights", Michael Kent Curtis, Duke Press. I bought it off Amazon.com. He acknowledges common interpretations in favor of State's rights but seeks to explore other interpretations of constitutional intent and the law.

You could start by reading Hallbrook's article tying the 2nd and 14th Amendments at http://tinyurl.com/sjpyv

Note that neither is actually the way the law is currently working. States do what they want but generally avoid confrontation in higher courts. In other words, it is a bit of a cat and mouse game.

 

[The Real Hawkeye]

But does that always correspond to what it actually says? And if it actually says something different from what "most legal people" agree on, then who should hold sway?

Exactly. A lawyer is trained to learn what the current legal doctrine is regarding a law. That legal doctrine could say that the right to free speech applies only to spider monkeys, and that's all he cares about. Lawyers need only know the prevailing legal doctrine, so they can know how to help their clients via the courts, which go by prevailing legal doctrine.

You are asking about legal reality, not prevailing doctrine. They are rarely the same any longer in this nation. I have answered your question with legal reality in mind. In this context, current prevailing legal doctrine is totally irrelevant.

Keep in mind also that our rights stand in judgment of the laws under which we live, not the other way around.

 

[TT]

Arguments about whether the BOR restricts state actions re. gun control are a bit academic: self-defense is a natural right- regardless of what ink has or hasn’t been put on paper no government can legitimately deny its citizens their right to defend themselves.

OT: Are you the same ‘Little Acorn’ that used to post on the MSNBC chat boards years ago?

 

[Soybomb]

Well then if we're talking "how it was meant to be"...

The 1st said that CONGRESS could not restrict or boost religion, or do certain other things. It didn't mention the states, so it did not restrict the states from doing those very things if they wanted. Sounds unlikely, but that's what the clear language of the amendment says.

The 2nd says that the RKB shall not be infringed. It doesn't say by whom, unlike the 1st amendment. So that means, by anybody. Fed, state, or local govts cannot infringe the RKBA according to the clear language of the 2nd amendment... unlike the restrictions imposed by the 1st amendment, which apply to the Fed only.

In this case I think we've gotten it pretty much right. The bill of rights was intended as a limitation on the power of the federal government. While the language in each amendment may not expressly say "this applies to the fed alone" I think it was understood. The language of the constitution is certainly of a different style the language used today in drafting legislation. Just look at how much debate we have over the phrase "a well regulated militia" and the potential of a comma.

I actually rather like the idea of the states have more autonomy from the fed. I think all state constitutions should essentially reaffirm the bill of rights for that state (hey, they seem to work well) but if they don't want to, thats their choice. If the people of illinois are fine with their firearms rights being "subject to police power" shouldn't that be their right?

Incorporation is however where it all went to hell Of course its all just for show when even with the 2nd amendment we can have things like federal weapons bans.

 

[RealGun]

I actually rather like the idea of the states have more autonomy from the fed.

That is what "tendentious" means, pretty much the opposite of "objective". It generally enables ignoring the 14th Amendment and how it was meant to forever change the United States and indeed the notion of "State's rights". Judicial rulings are profoundly tendentious in many cases, probably the most infamous of which was Cruikshank, which abdicated federal jurisdiction to the States as a dodge of a racial matter. Resistance to the full force of the 14th Amendment seems to always relate to black Americans or those who still value the principles of the Confederacy, perhaps the same thing in many ways.

 

[RNB65]

The U.S. is a constitutional republic based on a written constitution that defines and limits the power of government. In order for a state to be admitted to the Union of States, that state must swear allegiance to the US Constitution and recognize it as the supreme law of the land. As such, each state agrees not to pass any law which violates or contradicts the federal constitution and to remove any law declared unconstitutional by the federal courts.

So, no, no state can ban the RKBA. Limit it, yes, but not ban it.

 

[gego]

What would be the point of having a right to keep and bear arms, or any other right listed in the Bill of Rights, if any state, or any individual could legally deprive you of that right?

As a matter of fact, the First Amendment says "Congress shall make no law", however, the Second Amendment does not single out Congress for limitation, but says "the right of the people". The legal jerks could more appropriately argue that the limitation on government power over speech, press and religion only applies to laws passed by Congress, but not to laws passed by States.

To me it is sad commentary that freedom is so poorly understood. No wonder the Democrats and Republicans manage so well to run roughshod over us.

 

[WYO]

Many have alluded to this, but here is my take. The general consensus, at least until the 14th amendment, was that the Bill of Rights was a constraint upon federal authority only. Slavery, for example, was a state matter. As a concept, slavery sure sounds inimical to the lofty concepts espoused in the bill of rights, dontcha think? After the Civil War and the adoption of the 13th amendment prohibiting slavery, there was great fear that the former confederate states would pass laws to undermine the abolition of slavery, by treating the freed slaves differently. Thus, the 14th amendment was adopted, which provides that "no state shall" abridge the privileges and immunities of the citizens of the United States, "nor shall any state" deprive people of life, libertry or property without due process of law, "nor deny to any person" the equal protection of the laws.

The "incorporation" doctrine is that the 14th amendment incorporated provisions of the bill of rights and made them applicable to the states. That seems to make sense to me. However, these rights have been selectively incorporated over time on a case-by-case basis, and I don't think there is a pronouncement that all of the bill of rights applies to the states. There has not, to my knowledge, been a case incorporating the 2nd amendment to states.

 

[hugh damright]

The way I understand it, a constitution frames a government and a bill of rights limits that government. So the intent was for the USBOR to limit the US.

I think that the idea of a USBOR which limits all governments is antithetical to the idea of limited federal government.

 

[RealGun]

I think that the idea of a USBOR which limits all governments is antithetical to the idea of limited federal government.

But the argument would then be that the States are not separate. That didn't work. The States ability to abuse rights made them supreme, and that was unacceptable.

 

[Baba Louie]

The First 10 Amendments to the
Constitution as Ratified by the States
December 15, 1791
Preamble
Congress OF THE United States
begun and held at the City of New York, on Wednesday
the Fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States, all or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.:

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

...

Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X
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.

So simple, so easy. Yet worded such that attorneys everywhere can have a field day wiggling the words this way and that.

 

[Molon Labe]

There has not, to my knowledge, been a case incorporating the 2nd amendment to states.

Correct... the right to keep and bear arms has not (yet) been incorporated. See this page for more details.

 

[The Real Hawkeye]

I don't think there is a pronouncement that all of the bill of rights applies to the states.

Of course not. That's because the Fourteenth does not do this by its words or intention. How, for example, would you incorporate the Tenth Amendment so as to be a restraint on State power. Absurd. No, instead the intention was to do just what it purports to do in its words, i.e., 1) If you were born here, and subject to US jurisdiction, you're an American citizen; 2) The original Article IV, Section 2 Privileges and Immunities protections are restated nearly verbatim (therefore no new interpretation of it is called for); 3) A small portion of the Fifth Amendment (that dealing with due process requirements) was incorporated to the State, i.e., the States, after ratification of the Fourteenth Amendment, were thereafter restrained with regard to due process in the same way the Federal Government is, and this regarding life, liberty and property; and finally, 4) All citizens are guaranteed equal protection of their State's and Federal laws, i.e., you cannot make a law that applied to blacks which does not also equally apply to whites, and visa versa, and all laws must be enforced without regard for such things as the color of someone's skin.

The only thing that can be called incorporation in all that refers ONLY to a small portion of the Fifth Amendment. There is no general incorporation of the Bill of Rights found anywhere in the text of the Fourteenth Amendment. To the extent that some people insist that there is such a thing, they are simply regurgitating the current status of legal doctrine, just like quoting Roe v Wade as proof that the Constitution forbids the States outlawing abortion.

 

[The Real Hawkeye]

The States ability to abuse rights made them supreme, and that was unacceptable.

Yes, I much prefer my rights being abused by a distant central leviathan (in command of a million man standing army, not to mention a huge and militarized central enforcement agency) than by my local elected sheriff or mayor.

 

[Dmack_901]

"... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; ..."

"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."

Unless someone's willing to argue that a state, while able to abridge neither privilege nor immunity, may may somehow abridge a right, I believe the case is closed.

 

[bouis]

The bill of rights originally only applied to the federal government. The 14th amendment changed that by applying the bill of rights to the states, but the Supreme Court has interpreted it only as "selective incorporation," meaning that the Court can decide which of the amendments apply.

The Supreme Court has never incorporated the 2nd amendment to apply it to the states, so technically your lawyer friend is right.

Of course this goes against the original intent of the 14th amendment, which was to protect newly freed slaves from the Southern states. The biggest things the states did were deny blacks the vote, freedom to contract, assemble, and bear arms. Shortly after the 14th was passed however the federal government lost its nerve and stopped challenging the southern states, so the 14th amendment was never really enforced based on its original intent.

The SC revived the 14th amendment later, first using it to declare things like state minimum wage laws and the like unconstitutional -- but when Socialism became chic and the Court was stacked with leftists, they abandoned the original intent of 14th completely, and started using the 14th amendment to control states on things like police procedure, prayer in schools and abortion.

Now there's an alternative incorporation of the 2nd amendment which says that, as federal power trumps state power and the federal government is expressly given some authority over the militia, that the states can't deny the fed that power by disarming their citizens. But aside from one case in Georgia I don't know that this has ever been an accepted interpretation.

The gist of it is that in the last century the Constitution, and the 14th amendment especially, has become the plaything of lawyers, and lawyers in general don't like guns.

 

[The Real Hawkeye]

"... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; ..."

"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."

Unless someone's willing to argue that a state, while able to abridge neither privilege nor immunity, may may somehow abridge a right, I believe the case is closed.

Yes, but the specific immunity created by the Second Amendment is that against Federal usurpation of a police power belonging exclusively to the States and to the people respectively. The Tenth Amendment was not repealed by the Fourteenth.

I want to clarify that I firmly believe the right to keep and bear arms to be one belonging to every individual in the world as their human birth right. Its exercise is the mark of a free man, and the opposite the mark of a slave. However, as to the law, the Second Amendment (even combined with the Fourteenth), as a matter of de jure law, does not restrain the States in this regard. States have their own constitutions, and some of them do restrain the States in this regard, but that is a matter for a different discussion. That said, any State law which infringes on the right of the people to keep and bear arms is actually null and void, i.e., no law at all, as all laws which violate basic human rights are null and void. That is not to say, however, that you won't be thrown in jail for violating them, since the Second Amendment is not a legal immunity, either de jure or de facto, against State action in this regard.

 

[hugh damright]

The original Article IV, Section 2 Privileges and Immunities protections are restated nearly verbatim (therefore no new interpretation of it is called for)

Then again ... Article IV, Section 2 was restated nearly verbatim from the 4th Article of Confederation.

Unless someone's willing to argue that a state, while able to abridge neither privilege nor immunity, may may somehow abridge a right, I believe the case is closed.

Isn't that how it worked under the Articles? the 4th Article said that "the free inhabitants of each of these States ... shall be entitled to all the privileges and immunities of free citizens of the several States", yet the 2nd Article made it clear that "each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States" ... I seem unable to envision a State which has sovereignty, freedom, independence, power, jursidiction, and rights, yet cannot abridge anyones "rights" as defined by the US.

 

[The Real Hawkeye]

Excellent argument, Hugh. That's a twist I've never heard argued before. Seems pretty air tight.

 

[Jim March]

This is a very complex question. It gets into the subject of "just what does the 14th Amendment cover, and how?"

OK. History lesson time.

The Constitution we live under now was passed before the Bill Of Rights. BUT inclusion of a BoR was part of the deal leading up to the Constitution so they are definitely integrated.

The Constitution is binding on the states:

Article VI

All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Once an Amendment passes, it has the full force of the Constitution:

Article V: The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress...

The Bill Of Rights has a Preamble that practically nobody takes notice of outlining it's purpose:

THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.

Source: http://billofrights.org/

If it's not clear yet, the stated purpose of the WHOLE BoR (proposed as a block!) is to limit abuses of powers - not to ensure specific government powers.

Based on the above, you can make a damned good case that the original intent was to limit ALL government powers, including the state.

In 1833 the US Supreme Court put a quash on that concept in Barron v. Baltimore:

http://laws.findlaw.com/us/32/243.html

Mr. Barron's boat docks were hosed by the town of Baltimore. Barron sued for improper "takings" without due process, and lost. The US Supremes decided that the BoR didn't apply to state (or local) governments or their actions.

It is impossible to overstate the level of civil rights violations this triggered. "Bad decision" doesn't even begin to cover it.

By 1858 the state of South Carolina declared the death penalty for any preacher supporting abolition (anti slavery) from the pulpit. Suppression of the written word was common as the South slowly turned into one giant Gulag. (And yeah, I know this paragraph will honk some people off around here but get over it, I can back that statement in spades.)

In 1856 the US Supreme Court issued one of their most infamous decisions ever: - Dred Scott:

http://laws.findlaw.com/us/60/393.html

The court came to a decision that was morally horrendous but legally correct at the time: that America had always been a racist nation, that various founders of the US were racists who supported racist laws, that racist laws existed at the time of the founding, before that and after. They cited genuinely nasty examples from the 1780s and thereabouts.

They therefore didn't just support slavery, but racist laws. In doing so, they said that blacks didn't have the "privileges and immunities of US citizenship" and they exhaustively defined the term in this key quote:

For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them [blacks] 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. [emphasis added]

Note that the "privileges and immunities" clearly includes the 2nd Amendment, but also some surprises: "the right to travel without pass or passport"? What they're doing is describing "the traditional rights of free Englishmen", which can be translated as "the BoR and then some".

The BoR does not define our whole set of rights.

1861, the Civil War starts, ends 1865. By which time slavery has ended BUT Dred Scott's support of racist laws is still in effect. The South rapidly passes "black codes" such as:

1. That it shall not be lawful for any freedman, mulatto, or free person of color in this State, to own fire-arms, or carry about his person a pistol or other deadly weapon.

2. That after the 20th day of January, 1866, any person thus offending may be arrested upon the warrant of any acting justice of the peace, and upon conviction fined any sum not exceeding $100 or imprisoned in the county jail, or put to labor on the public works of any county, incorporated town, city, or village, for any term not exceeding three months.

3. That if any gun, pistol or other deadly weapon be found in the possession of any freedman, mulatto or free person of color, the same may by any justice of the peace, sheriff, or constable be taken from such freedman, mulatto, or free person of color; and if such person is proved to be the owner thereof, the same shall, upon an order of any justice of the peace, be sold, and the proceeds thereof paid over to such freedman, mulatto, or person of color owning the same. [Ed. note: the off-duty fashion choices of “justices of the peace, sheriffs, or constables” at that time tended toward an ensemble of basic white bedsheets with eyeholes...especially at night.]

4. That it shall not be lawful for any person to sell, give, or lend fire-arms or ammunition of any description whatever, to any freedman, free negro or mulatto; and any person so violating the provisions of this act shall be guilty of a misdemeanor, and upon conviction thereof, shall be fined in the sum of not less than fifty nor more than one hundred dollars, at the discretion of the jury trying the case.

Alabama statute of 1865, from “The Second Amendment: Towards An African-Americanist Reconsideration”, footnote 178 — two more state-level examples precede that one. http://www.guncite.com/journals/cd-recon.html

The Federal gov't decided to put an end to this sort of thing, led by abolitionist Ohio Republican John Bingham, primary author of the 14th Amendment of 1868.

To do so, he decided to turn the words of Dred Scott back on itself. Note the opening paragraph of the 14th when read through the "prism" of Dred Scott:

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.

Got that? Blacks become citizens, and then "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States".

It gets better. At this moment in 1868, blacks did NOT yet have the right to vote. They didn't have "political rights", only "civil rights". Yet Bingham and company were openly saying that the 14th was meant, in part, to arm the new freemen against Klan attacks.

So the right to arms was transformed from a political right tied mostly to "militia duty/right" which in turn is akin to the right and duty of jury service - something else blacks didn't get until the 15th Amendment of...1872 I think?

And the kicker? In 1868 we're no longer talking about muzzle-loading flintlocks. The Gatling Gun was in production, as were 15-shot Henrys and a slew of revolvers...including metallic cartridge designs. The Mormons had invented the big-bore snubby for God's sake (pardon the pun).

So what did the Supremes do? In a slew of cases they pretended to have no clue what the hell "privileges and immunities" were. TO THIS DAY they have maintained this fiction. Prominent justices throughout the 20th Century argued otherwise to no avail. If you want to see how bad it got:

http://laws.findlaw.com/us/92/542.html

http://en.wikipedia.org/wiki/Plessy

http://laws.findlaw.com/us/170/213.html

The first of those (Cruikshank) was in my opinion the worst. It said that despite obvious evidence of civil rights violations, the US Federal Gov't could not punish a set of actions by state and local gov't actors. That was left "up to the states". The defendants in Cruikshank responded to blacks attempting to vote by first disarming them (2nd Amendment violation), launching days of rape, riot, arson and murder (violations of right to vote under the 15th Amendment, right to peaceful assembly under the 1st, etc.)

All defendants were turned loose and the first American civil rights movement died in it's tracks.

This next bit is speculation on my part: I believe that in 1909 the US Supreme Court got their noses rubbed hard in just how much horror they had allowed:

http://www.law.umkc.edu/faculty/projects/ftrials/shipp/trialaccount.html

I *think* the Shipp case was instrumental in the next steps.

In a series of cases throughout the 20th Century, the US Supreme Court decided that certain civil rights, as they came before the court, were "fundamental" and therefore denying them would be a violation of "due process".

What they invented was "selective incorporation" of the BoR against the states, one civil right at a time, starting with pieces of the 1st Amendment and working their way through the BoR.

As of this writing, all elements of the BoR except three have been incorporated ("enforced") against the states:

1) The 3rd Amendment (quartering of troops in people's homes isn't popular anyways...)

2) The 5th Amendment right to indictment for major crimes by grand jury. Which has in some states (esp. California) weakened the grand jury system, which is a problem...

3) You guessed it: the 2nd Amendment.

The whole concept of "selective incorporation" through the due process clause was a steaming pile the moment it was thunk up. It was a "kluge", a way of making social change in a "controlled fashion". But it was and remains a fraud, designed originally to give minorities limited civil rights instead of "all in one shot". It was wrong from day one and remains so: civil rights don't work based on what "the powers that be" are comfortable granting.

In a fairly recent decision supporting the idea that states don't have to honor the 2nd Amendment, California Attorney General Bill Lockyer-D cited US Supreme Court precident for such a position.

US v. Cruikshank.