RKBA: Federal versus State Action

[crebralfix]

I've been reading Gun Control & Gun Rights by Andrew McClurg, David Kopel, and Brannon Denning. In Chapter 4, "The Right to Arms in the Second Amendment and State Constitutions", I came across an interesting passage (p156):

The earliest Supreme Court cases concerning the Second Amendment dealt not with the substantive meaning of the amendment but with the issue of whether or not the amendment applied to actions taken by the states. The Bill of Rights (the first ten amendments to the U.S. Constitution, including the Second Amendment) was adopted four years after the Constitution to alleviate the fears of some states concerning the powers of the newly created federal government. In 1833, in Barron v. Baltimore, 32 U.S. 243 (1833), the U.S. Supreme Court held that the rights contained in the Bill of Rights operated only as restrictions on federal action and did not apply to actions taken by the states. It is difficult to overstate the importance of this issue: to rule that the Bill of Rights did not apply to the states meant that states were not prohibited from abridging freedom of speech or religion, the right to jury trial, freedom from self-incrimination, the right to bear arms, and any other federal constitutional liberties. Most scholars, although not all, agree that the Court correctly interpreted the intent of the Founding Fathers in deciding the Bill of Rights did not limit state action (See Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights I [Durham: Duke University Press, 1986].)

In 1868, however, the Fourteenth Amendment was ratified. It provides, in pertinent part: "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." Questions arose as to whether the Fourteenth Amendment was intended to make the Bill of Rights applicable to state action, through either the "privileges or immunities clause" or the "due process clause."

The Supreme Court never accepted that the privileges or immunities clause was intended to prevent states from violating the Bill of Rights (although Curtis, supra, makes a compelling argument to the contrary in his excellent book). In the hundred years following ratification of the Fourteenth Amendment, however, the Court did hold that most liberties contained in the Bill of Rights apply to state action through the due process clause. The fragmented and often-torturous process by which this was accomplished is too complicated to explain in detail here. The approach finally settled on by the Court is known as "selective incorporation," a process by which the Court held, on a case-by-case basis (that is, selectively), that various freedoms in the Bill of Rights either were or were not sufficiently "fundamental" that they constituted part of due process of law. Once the Court made a determination that a particular liberty was part of due process of law under the Fourteenth Amendment, it absorbed or "incorporated" that right into the due process clause and made it binding on the states.

What follows in the book is Presser v. Illinois, 116 U.S. 252 (1886).

"Presser was indicted and convicted for violating a state statute that prohibited any body of men whatever, other than the regular organized volunteer militia of this state and the troops of the United States, to associate themselves together as a military company or organization or to drill or parade with arms in any city or town of the state of Illinois, without the license fo the governor thereof. Justice Woods delivered the opinion of the Court."

Quick summary: Presser argued that Illinois' law was a violation of Article 1, Section 8 of the Constitution. The Court decided that this forbidding of gathering did not violate the right of individuals to keep and bear arms. Another case, US v. Cruikshank, said that the right of the people to keep and bear arms is NOT a right granted by the Constitution. The Second Amendment cannot be infringed upon by Congress.

Thus far, it appears that our opinions on the right to keep and bear arms are in conflict with the rulings of SCOTUS. According to what I've just read, the states can limit the RKBA in any way they see fit. The existing differences in laws among the various states seem to support this ruling.

[NOTE: there's more to it than this, but it seems to be the heart of the matter in how gun laws have evolved over time in various states].

 

[Bartholomew Roberts]

The 14th Amendment was originally passed to apply the Bill of Rights to the southern states (and specifically to freed slaves). However, when faced with an opportunity to do this in the Slaughterhouse cases, the Supreme Court said that the privileges and immunities clause referred to did not include any significant rights and states were still free to infringe on the Bill of Rights (which was the state of the law before the 14th Amendment).

Presser v. Illnois reached the same conclusion as the Slaughterhouse cases.

However during this time the Court shifted and using a judicial doctrine called "selective incorporation" they began to find that the 14th Amendment prevented the states from abridging the Bill of Rights. Presser came after the 14th Amendment was adopted; but before the doctrine of selective incoporation was created, so you can make a good argument it is no longer good law.

Check out this link for good reading on the constitutional issues around the Second Amendment: http://www.guncite.com/

 

[crebralfix]

Excellent...I'll go through that site.

 

[hugh damright]

A lot of people believe that the 14th "Amendment" makes the USBOR binding upon the States, but the 14th doesn't actually say that. And the SCOTUS has ruled repeatedly, since the 14th "Amendment" took effect in 1868, that the Second Amendment does not bind the States (US v Cruikshank, Presser v Illinois, and Miller v Texas).

I think the rub is that a limited federal government cannot be "protector of rights". It just doesn't work that way. A power to be "protector of rights" is incredibly too broad and general a jurisdiction for a government of enumerated powers. If the central government is going to be the "protector of rights", then there is no doubt but that it will cease to be a limited federal government and will grow into a wholly national government. And the Framers said that a wholly national government can only result in despotism, because the US is too vast an area for such a government.

This is why the South seceded, because the North wanted to subvert our frame of government into something wholly national. During the reconstruction period, yankees came up with a "Civil Rights Bill", and the President vetoed it for being an attempt to subvert our frame of government. And then when they came up with the 14th "Amendment", it was also rejected for being an attempt to subvert our frame of government. And yankees resorted to using military force to amend our constitution against our will.

I think the SCOTUS checked the 14th starting with the Slaughterhouse cases, where they said that the 14th could only apply to rights associated with federal government (because those are the only rights that a federal government can have jurisdiction over). And I think it was in the 1930's when the SCOTUS started using the 14th to make the USBOR binding against the States.

 

[Bartholomew Roberts]

And I think it was in the 1930's when the SCOTUS started using the 14th to make the USBOR binding against the States.

Yes... I think Palko v. Connecticut is the first place you see the doctrine of selective incorporation. Justice Cardozo IIRC. The Supreme Court heard the case in 1937.

However, that does bring up the point that all of the cases saying the Second Amendment does not bind the states predate the idea of selective incorporation. Under selective incorporation (which has now been applied to most of the BOR), it would be difficult to argue that the Second Amendment should continue to be a special case.

 

[El Tejon]

hugh, the Framers were explicitly clear during debates that the Bill of Rights was to be applied to the States via the 14th Amendment. Southern opposition to the 14th Amendment (and the CRA of 1866) was predicated on maintining control over the freedmen. The Supreme Court did not start to recognize this fact until the first incorporation case in 1897 in Chicago which was three years after the lastest case you cite Miller v. Texas. Supreme Court precedent did not stop in 1894.

Government's responsibility is to be a protector of our rights, everyone from Jefferson to Madison recognized this. If the federal government has jumped the tracks and its Constitutional purpose does not change constitutional law.

History is explicitly clear that the South seceded to preserve Slavery. Your cited rationale was proposed after the Civil War when the Southern revisionists had to come up with a reason other than the barbaric notion that the South fought so that one man could own another man. Early's Just Cause was born after the Civil War not during or before the war.

The Supreme Court started to incorporate the Bill of Rights to the states as the Framers intended in 1897 in Chicago (just compensation). In the '30s there was a formaized test ("scheme of ordered liberty") in Palko that you may be referencing. Palko v. Connecticut, 391 U.S. 319 (1937).

 

[frankie_the_yankee]

I for one cannot see why the Court rejected applying the "privileges and immunities" clause, which seems very straightforward, in favor of a tortured stretching and gassy reading of the "due process" clause.

To my reading, the "privileges and immunities" of a citizen of the United States is quite clearly the rights listed in the BOR. What else could it mean?

 

[Bartholomew Roberts]

Thanks for the correction El Tejon. I didn't have Chicago in my little crib sheet on incorporation.

frankie, I pretty much agree with you that the privileges and immunities clause was clearly meant to extend the 14th Amendment to the states. I think the reason the Court didn't take that view is because the first Court to hear a case on the 14th did not want to change the status quo and so they resisted the clear intent of the 14th Amendment with a watered-down interpretation. Later Courts realized the error in this; but were bound by the earlier precedent. Rather than overturn the questionable ruling in the Slaughterhouse cases they came up with a different way to reach the same result - thus the stretchiness of the due process clause.

 

[hugh damright]

hugh, the Framers were explicitly clear during debates that the Bill of Rights was to be applied to the States via the 14th Amendment.

You make it sound as though the framers of the 14th were all of one mind. Yes, a couple of folks expressed an intent/belief that the 14th would make the USBOR (or rather the first eight amendments) binding upon the States. But if Bingham of Ohio expressed such an intent, and he was a framer of the 14th, then it does not follow that his personal intent rules, as if he personally ratified the thing. I have heard this approach referred to as a "hill of beans", as compared to the mountain of evidence that those who ratified the 14th did not intend it to make the USBOR binding upon the States.

Southern opposition to the 14th Amendment (and the CRA of 1866) was predicated on maintining control over the freedmen.

I have read President Johnson's veto of the Civil Rights Bill, and what I remember reading was that his veto was predicated on keeping yankees from subverting our frame of government.

Regardless, it seems to me that the way free government and constitutionalism work is that a State can refuse to ratify an amendment and they do not have to justify their opposition to it. It's almost like you're insinuating that it was proper to put States under military rule for voting against an amendment ... I don't think that even Larry Craig has a stance so wide that he could believe that it's proper to put States under military rule for voting against an amendment, and at the same time believe that well regulated militia is necessary for the security of free States.

Government's responsibility is to be a protector of our rights, everyone from Jefferson to Madison recognized this.

The Framers' Constitution created a limited federal government which was clearly not delegated jurisdiction over "rights". Jefferson said that the way to have good government is to leave civil rights to each State. And didn't Madison write Federalist #45, which says that jurisdiction over our rights are reserved to each State?

... I think the point here is that a lot of people want to reconstruct the Second Amendment, to make it binding against the States, and they like to pretend that they are ushering in the original intent, or the original intent of the 14th ... but I think what they are doing would be more accurately described as reconstruction and subversion. The intent to make the central government the "protector of rights" is an intent to subvert our constituted frame of government.

To my reading, the "privileges and immunities" of a citizen of the United States is quite clearly the rights listed in the BOR. What else could it mean?

That's such a good question that I'm going to get back to it later.

 

[hugh damright]

To my reading, the "privileges and immunities" of a citizen of the United States is quite clearly the rights listed in the BOR. What else could it mean?

The 14th "Amendment" was preceded by a Civil Rights Act which declared that citizens of the US shall have the same right, in every State and Territory:

"to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property"

Since the 14th was intended to make this Civil Rights Act part of the US Constitution, couldn't this enumeration of privileges and immunities be what the 14th was intended to regard? I have a book here on the USBOR (The BOR - Original Meaning and Current Understanding (Hickock)) which says "that enumeration, according to the framers [of the Civil Rights Act], marked the bounds of the grant [of federal power]; and at length those rights were embodied in the "privileges or immunities" of the Fourteenth Amendment." It also says that "The legislative history of the Fourteenth Amendment demonstrates that the application by the Supreme Court of the Bill of Rights to the states fits Justice Holmes's description, in another context, of "an unconstitutional assumption of powers by courts of the United States which no lapse of time or respectable array of opinion should make us hesitate to correct"."

 

[Standing Wolf]

To my reading, the "privileges and immunities" of a citizen of the United States is quite clearly the rights listed in the BOR. What else could it mean?

Sorry, Frankie, but any statement can be misconstrued to mean anything a bunch of self-important lawyers want it to mean. Turning the law over to lawyers was a form of abdication on the part of us, the people.

We'll probably never get it back.

 

[MiddleAgedKen]

Another case, US v. Cruikshank, said that the right of the people to keep and bear arms is NOT a right granted by the Constitution.

The antis use this argument as well, but it is based on an incomplete reading of Cruikshank--I suppose it would not be strictly High Road to say it was a dishonest reading of Cruikshank in the case of the subjection movement, but if the shoe fits....

Here's the relevant quote from the majority opinion:

The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence (emphasis added).

I (and I am hardly alone) take this to mean that the right to arms exists independent of the Constitutional guarantee.

 

[BobbyQuickdraw]

I take issue with the fact that it is said so casually that the South seceded because of the 'barbaric notion that one man could own another.'

There are many, many reasons that the South seceded, and slavery was not even the primary one. You say that it's revisionist to say they didn't, while I say it's revisionist to think the North fought to free the slaves.

Many free blacks fought for the South in the war. It was much more than just the issue of slavery and to simply pin the blame on the South and their "barbarism" is ignorant.

Lest we also not forget the North used their black brigades to absorb bullets during initial charges and treated them differently.

As for the real issue of the post, I apologize for going off course, but believe that SCOTUS rulings thus far on the 2nd Amendment have often been haphazard, poorly worded, and oft misrepresented. Let us not forget the initial Miller case much bandied about in which no one even represented the Miller side of the case. Fair? Hardly.