That reflects a very fundamental misunderstanding of the law. Application and permissible regulation of constitutionally protected rights will vary from State to State.
- The Bill of Rights does not apply to States. The Supreme Court ruled in 1833 that the States were not subject to the Bill of Rights (Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833)).
- Some years following the adoption of the Fourteenth Amendment the doctrine evolved of applying some, but not all, of the rights enumerated in the Bill of Rights to the States on a piecemeal basis, using the Due Process Clause of the Fourteenth Amendment.
- The 14th Amendment wasn't used to apply rights enumerated in the Bill of Rights to the States until, at the earliest, 1897 (Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897) incorporating the "taking" clause of the 5th Amendment through the due process clause of the 14th Amendment). And the right of free speech protected by the First Amendment wasn't applied to the States until 1925 (Gitlow v. New York, 268 U.S. 652 (1925)).
- A number of rights enumerated in the Bill of Rights have not been incorporated against the States or have been ruled not to apply against the States:
- Third Amendment: The right not to be compelled to quarter soldiers has been specifically incorporated only in the Second Circuit. It appears that the has been no other ruling on that question.
- Fifth Amendment: The right to indictment by a grand jury has been specifically not incorporated (Hurtado v. California, 110 U.S. 516 (1884)).
- Sixth Amendment: The right in a criminal trial to a jury selected from residents of the state and district where the crime occurred has not been incorporated (Caudill v. Scott, 857 F.2d 344 (6th Cir. 1988); Cook v. Morrill, 783 F.2d 593 (5th Cir. 1986); Zicarelli v. Dietz, 633 F.2d 312 (3d Cir. 1980)).
- Seventh Amendment: The right to a jury trial in a civil case has been held not incorporated against the States (Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916)).
- Eighth Amendment: The question of the incorporation of the right to protection against excessive fines has not been addressed.
- And the Supreme Court has also ruled that constitutionally protected rights may be subject, under some circumstances, to State or local regulation. See, for example:
- Hill v Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), in which the Court, in upholding a Colorado law restricting protesting, educational or counseling activities within 100 feet of the entrance to a health facility, noted:
- Cf. McCullen v. Coakley (U. S. Supreme Court, No. 12–1168, 2014)
- In McCullen the Court struck down a new Massachusetts "buffer zone" law. As noted in the opinion the Court had previously sustained a different sort of buffer zone law in Colorado, and nothing in McCullen casts any doubt on the continued validity of the Colorado law (McCullen, slip opinion at 2):
- Santa Monica Food Not Bombs v. Santa Monica, 450 F.3d 1022 (9th Cir., 2006) in which the court upheld a Santa Monica ordinance requiring a permit for public assemblies. In fact in Santa Monica Food Not Bombs the court specifically acknowledges that the ordinance may burden the protected right, noting, at pg 1038:
Well, yes, incorporation has been piecemeal over time, and was originally resisted by the court, which wasn't surprising given the makeup of the court at the time
(e.g. Bradwell v. State of Illinois, Civil Rights Cases, US v. Harris). United States v. Cruikshank was, especially, a political statement against Reconstruction and clearly contrary to any plain reading of the 14th Amendment. But these decisions were largely overturned and I would argue the 20th century decisions were more in line with the intent of the 14th amendment.
Anyway, my main point was that the
Bruen decision specifically says "New York’s proper-cause requirement violates the Fourteenth
Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and
bear arms in public for self-defense."
Perhaps I am wrong, but it appears to me that by referencing the 14th they are pre-emptively incorporating the 2nd. And once incorporated, I don't see how the right can be constrained by state borders, which it effectively is if every state has different regulations and rules and fees and training standards.
