Will the ATF that is a Federal agency, enforce laws passed only by a State?

[danez71]

Ah, no. The Bill of Rights applied only to the federal government, not to the States (Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833)).

Not until the end of the 19th Century did the Court begin to apply the Bill of Rights to the States through the due process clause of the 14th Amendment.

But in a practical sense, didn't the 14th Amendment (about 30 yrs after) pretty much all but gut the life out of Barron v Baltimore (thrown in some other cases in there too such as Dred Scott vs Sandford and United States v. Cruikshank)?

And didn't (Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833)) conflict with Fed Circuit Corfield v. Coryell some 10 years earlier in 1823?


That the BOR was only interpreted as being applied against the Fed govt, that seems to only be a relatively short period of time in our history. Barron v. Baltimore was, imo, little more than a snap shot in time and brushed aside by other cases and of clarification via the 14th A which took a much more comprehensive look at our history and the intention of the Constitutin/BOR.


The 14th Amendment (which quoted the Corfield v. Coryell case,,, which predates Barron v. Baltimore), particularly with the Equal Protection Clause and Privileges or/and* Immunities Clause, seems to me to be a reaction to reaffirm and clarify that the BOR did apply to all and that Barron v. Baltimore was a bad decision.


* Privileges or/and* Immunities Clause - The Privileges or Immunities Clause was inspired/modeled from the Privileges and Immunities Clause in Article IV of the Constitution and ties into the Articles of Confederation which predates the ratification of the Constitution.


IMO, and it also seems to be the opinion of Courts pre and post Barron v. Baltimore, the 14th Amendment tying into the Constitution and the Article of Confederation, and with the majority of our history, the concept 'BOR applying to all' seems to have been the original intention and that cases like Barron v Baltimore were not consistent with the original intention.



You're certainly more well versed in this than I am. But it seems fairly clear that was the original intention dating back to the Articles of Confederation.

Whether or not cases like Barron v. Baltimore wanted to follow that intention, or interpret it differently than what was intended, is a different matter; a matter that was corrected by the Courts and the 14th A.



Aside from that, It also seems pretty clear, dare I say 'not even disputed', that the States did want, at least to some degree, the Feds 'all up in their business' with things like international trade/commerce.


It seems some states rights absolutists seem to think that the states didn't want to Fed govt at all and forget the fact that they created it and gave it legitimacy and power over the individual states.

 

[Frank Ettin]

But in a practical sense, didn't the 14th Amendment (about 30 yrs after) pretty much all but gut the life out of Barron v Baltimore (thrown in some other cases in there too such as Dred Scott vs Sandford and United States v. Cruikshank)?

And didn't (Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833)) conflict with Fed Circuit Corfield v. Coryell some 10 years earlier in 1823?


That the BOR was only interpreted as being applied against the Fed govt, that seems to only be a relatively short period of time in our history. Barron v. Baltimore was, imo, little more than a snap shot in time and brushed aside by other cases and of clarification via the 14th A which took a much more comprehensive look at our history and the intention of the Constitutin/BOR.


The 14th Amendment (which quoted the Corfield v. Coryell case,,, which predates Barron v. Baltimore), particularly with the Equal Protection Clause and Privileges or/and* Immunities Clause, seems to me to be a reaction to reaffirm and clarify that the BOR did apply to all and that Barron v. Baltimore was a bad decision....

I'm afraid there are a couple bugs in your analysis.

• Corfield was a circuit court case. Barron, decided by the Supreme Court would in thus overrule anything inconsistent in Corfield.
  
  
• The Fourteenth Amendment wasn't used to apply rights enumerated in the Bill of Rights to the States until the end of the 19th Century/beginning of the 20th Century (30 years +/- since its adoption). And it's been used to do so on a piecemeal fashion. Some enumerated rights have been applied to the States and a few have been held inapplicable to the States.

 

[danez71]

I'm afraid there are a couple bugs in your analysis.

• Corfield was a circuit court case. Barron, decided by the Supreme Court would in thus overrule anything inconsistent in Corfield.
  
  
• The Fourteenth Amendment wasn't used to apply rights enumerated in the Bill of Rights to the States until the end of the 19th Century/beginning of the 20th Century (30 years +/- since its adoption). And it's been used to do so on a piecemeal fashion. Some enumerated rights have been applied to the States and a few have been held inapplicable to the States.

I did note that Corfield was a only Fed Circuit case,,,, but is was relevant in the 14th A.

I don't know that its a bug....

I think the 14th A was a confirmation that the BOR applied to the states as intended by the Constitution and Articles of Confederation by formally stating that that they did apply to the states.... IOW, I don't think it created the extension to the states, I think it confirmed that it already did.


Dred Scott in 1858? (after Barron) applied the concept which wasnt consistent with Barron in terms of applying the BOR at the state level.

The 14th, imo, settled that inconsistency and was ratified by effectively/successfully arguing the intention of the BOR/Constitution/Articles of Confederation.


What I think may be worthy to note is Maddison 1791 : "And seeing we live in an enlightened age, when liberty is allowed to be the unalianable right of all mankind <snip>"

The concept was discussed whether or not the states wanted to realized/accept it.

Absent, to my knowledge, was talk of 'all the BOR are 'unalianable right of all mankind' unless your state doesn't want you to have it.




That the 14th still stands today is somewhat of testament, that ultimately, SCOTUS agrees and is/remains the law of the land... which in the words of a wise man, is the reality that we live in.


....ehhh... but whom am I to say?

 

[CoalTrain49]

14A can be interpreted in many ways, just like 2A. Read into it whatever you wish. I would say if it was used to apply the constitutionality, if that's a word, to SSM, then you could apply it to just about anything depending on the courts disposition on that particular day.

The BOR was written (intent) to limit the power of the federal gov't.

The Fourteenth Amendment (Amendment XIV) to the United States Constitution was adopted on July 9, 1868 and was proposed in response to issues related to former slaves following the American Civil War (reconstruction). Misused by misguided justices. I honestly believe that trend will stop when the SC has a few new judges. States rights do matter and you can't pick and choose which ones you feel good with on any particular day. If one doesn't like a state law then become active to change it. The SC isn't there to do your bidding for you, that would be your legislators.

 

[danez71]

I honestly believe that trend will stop when the SC has a few new judges.

The 14th has been around for 150 yrs. Even if you limit the time frame of the alledged "misuse" to the last 80-100 yrs when it became more active in cases, I highly doubt its going to stop any time soon.

My other posts are just how I see it. I could very well be not right.

But the net result represents the reality that we live in today (I think.... hasnt SCOTUS ruled that the BOR applies to the states too?)

ETA: This has gotten off topic from the OP and while I didn't do that, I shouldnt fester it either.

 

[Frank Ettin]

I did note that Corfield was a only Fed Circuit case,,,, but is was relevant in the 14th A.

I don't know that its a bug.....

How? The Fourteenth Amendment didn't come along until 45 years later. And the Supreme Court basically dumped Corfield with Barron.

.... I think the 14th A was a confirmation that the BOR applied to the states as intended by the Constitution and Articles of Confederation by formally stating that that they did apply to the states.... IOW, I don't think it created the extension to the states, I think it confirmed that it already did....

But what you think is irrelevant. It's what the courts have done that count.

.... Scott in 1858? (after Barron) applied the concept which wasnt consistent with Barron in terms of applying the BOR at the state level....

Exactly how? Where and how in the decision is any portion of the Bill of Rights referred to or relied upon to reach the decision of the Court?

.... The 14th, imo, settled that inconsistency and was ratified by effectively/successfully arguing the intention of the BOR/Constitution/Articles of Confederation.....

Again your opinion -- but one not adopted or followed by the courts.

.... (I think.... hasnt SCOTUS ruled that the BOR applies to the states too?)....

No it has not. For example:

• The right to indictment by a grand jury (Fifth Amendment) has been held to not apply to the States (Hurtado v. California, 110 U.S. 516 (1884)).
  
  
• The right to a jury selected from the residents of the State of district where the crime occurred (Sixth Amendment) has not been applied to the States (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)).
  
  
• The right to a jury trial in a civil case has not been applied to the States (Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916) and Pearson v. Yewdall, 95 U.S. 294 (1877)

 

[Carl N. Brown]

As I understood it, originally the fear was that the federal government would oppress the rights of the people, so a Bill of Rights binding on the federal government was promoted. Apparently the states were originally regarded as defenders of the rights of their citizens. Until Reconstruction after the Civil War degenerated into JIm Crow promoted as states' rights. Oooops.

 

[Carl N. Brown]

Question: are not federal agents citizens, and do they not retain citizen's arrest rights?

 

[danez71]

How? The Fourteenth Amendment didn't come along until 45 years later. And the Supreme Court basically dumped Corfield with Barron.

I already noted how above.

I could go on to explain my thinking and have a conversation but I can see that youre in no mood to do so and would prefer to just sit back and poke holes.


Regardless of that, I do want say Thanks for finally taking the time to acknowledge/answer one of my question to you --- That the Barron case you originally cited and used as the corner stone of your rebuttal against me was basically dumped.

But what you think is irrelevant. It's what the courts have done that count.

It's a bit ironic you say that considering the Barron case you just was basically dumped was the same case you thought was relevent enough to support your position.



As I said before, this has gotten off topic from the OP and I didn't want to fester it.

 

[CoalTrain49]

But the net result represents the reality that we live in today (I think.... hasnt SCOTUS ruled that the BOR applies to the states too?)

In some cases. In others, like Shew V. Malloy and Kampfer v. Cuomo they refuse to hear the cases. Inaction is a decision which leaves the lower courts decisions in tact.

Yours is a blanket statement that everything in the BOR applies to the states. I don't think we have reached that point yet.

 

[danez71]

In some cases. In others, like Shew V. Malloy and Kampfer v. Cuomo they refuse to hear the cases. Inaction is a decision which leaves the lower courts decisions in tact.

Yours is a blanket statement that everything in the BOR applies to the states. I don't think we have reached that point yet.

Yrs. You're right.... my blanket statement was wrong. I shouldn't have worded it as a blanket statement.

 

[coloradokevin]

A couple years back, Colorado passed some anti gun, "feel good" legislation, written by urban dwelling air heads, with the backing of Michael Bloomberg, and against the advice and wishes of all but two of the State's elected County Sheriffs. It covered the two biggest hitters on the Progressive wish list, background checks on all gun transfers, and a limit of 15 rounds for magazines. Higher capacity magazines could be kept, but never transferred to another person, even with the sale of the gun they belong to.
The question is this, since these laws only affect Colorado, will, or can the ATF get involved in trying to enforce them? The laws are so poorly defined that they could, at the whim of a bureaucrat, mean about anything, although our County Sheriffs have nearly all said that they would not enforce them. But could a Federal agency step in to enforce them under orders from say, DOJ?

No, they won't enforce these laws in Colorado, or elsewhere. They are concerned only with federal laws, and sometimes it's surprisingly hard to get them to care about those, too.

 

[RickD427]

Yes, and federal law authorizes ATF Special Agents, FBI agents, and U. S. Marshals and their deputies to arrest for state law felonies ( 18 USC 3051, 3052, and 3053, respectively).

Frank,

Can you provide a citation to back up your claim that 18 USC 3051, 3052 and 3053 provide an authority for federal agents to make arrests for state law violations?

This simply is not true.

Let's look at the text of 18 USC 3051 (pertinent part):

Special agents of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, as well as any other investigator or officer charged by the Attorney General with the duty of enforcing any of the criminal, seizure, or forfeiture provisions of the laws of the United States, may carry firearms, serve warrants and subpoenas issued under the authority of the United States and make arrests without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony.
​

And 18 USC 3052:

The Director, Associate Director, Assistant to the Director, Assistant Directors, inspectors, and agents of the Federal Bureau of Investigation of the Department of Justice may carry firearms, serve warrants and subpoenas issued under the authority of the United States and make arrests without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony.​

And 18 USC 3053:

United States marshals and their deputies may carry firearms and may make arrests without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony.​

All of these sections restrict the arrest authority to "offense against the United States" or "felony cognizable under the laws of the United States." There is no arrest authority provided for state law violations.

California does provide an arrest authority to federal agents under Penal Code section 830.8. I can't speak to the state law provisions of other states.

 

[Carl N. Brown]

From Levy's Encyclopedia of the American Constitution, the article by Leonard W. Levy:
Quote:
BARRON v. CITY OF BALTIMORE
7 Peters 243 (1833)
When James Madison proposed to the First Congress the
amendments that became the Bill of Rights, he included a
provision that no state shall violate Freedom of Religion,
Freedom of Press, or Trial by Jury in criminal cases;
the proposal to restrict the states was defeated. The
amendments constituting a Bill of Rights were understood to be
a bill of restraints upon the United States only. In Barron,
Chief Justice John Marshall for a unanimous Supreme
Court ruled in conformance with the clear history of the
matter. Barron invoked against Baltimore the clause of
the Fifth Amendment prohibiting the taking of private property
without Just Compensation. The ""fifth amendment,'' the
Court held, ""must be understood as restraining the power of
the general government, not as applicable to the states.''
:Endquote

From the article on "Criminal Procedure" by David Fellman
Quote:
The key question, then, is: what is a federal right? A short
answer is: any right arising under the Constitution of the
United States, statutes of Congress, or treaties. But the
provisions of the Constitution relating to basic rights are
stated in vague and general language that does not in terms
apply to the states. Indeed the Court held in a landmark case,
Barron v. Baltimore (1833), that the Bill of Rights did
not apply to the states. This holding was based on the
proposition that the Bill of Rights was intended only to supply
additional protection from violations by the new, untested
national government, and that wherever the states were limited
by the [US C]onstitution, the language to this effect was always
explicit. Prior to the Civil War, federal court review of state
criminal convictions under the Bill of Rights was not possible.
A major change in our whole system of government began in 1868
with the adoption of the Fourteenth Amendment, which provides
that no state shall "deprive any person of life, liberty, or
property, without due process of law." Not until 1923,
however, did the Supreme Court undertake to employ this clause
as a limit on state criminal procedure. ...
:Endquote

From the article on "Arrest" by James Boyd White
Quote:
....
The principal constitutional standard governing arrest is the
Fourth Amendment. This amendment is one article of the
original Bill of Rights, which was held in Barron v.
Baltimore (1833) to apply only to the federal government.
But in Mapp v. Ohio (1961) the Fourth Amendment was held
to be among those provisions of the Bill of Rights that are
"incorporated" in the Fourteenth Amendment and is thus
applicable to arrests by state as well as federal officers. ...
:Endquote

From the article on that by Leonard W. Levy
Quote:
INCORPORATION DOCTRINE
According to the incorporation doctrine the Fourteenth
Amendment incorporates or absorbs the Bill of Rights,
making its guarantees applicable to the states. Whether the
Bill of Rights applied to the states, restricting their powers
as it did those of the national government, was a question that
arose in connection with the framing and ratification of the
Fourteenth Amendment. Before 1868 nothing in the Constitution
of the United States prevented a state from imprisoning
religious heretics or political dissenters, or from abolishing
Trial by Jury, or from torturing suspects to extort
confessions of guilt. The Bill of Rights limited only the
United States, not the states. ... State constitutions and
Common Law practices, rather than the Constitution of the
United States, were the sources of restraints on the states
with respect to the subjects of the Bill of Rights.

Whether the Fourteenth Amendment was intended to alter this
situation is a matter on which the historical record is
complex, confusing, and probably inconclusive. ...
:Endquote

The BoR have become applicable to state and local governments under the 14th Amendment almost on a right-by-right case-by-case measure based primarily on unreasonable abuses, usually after successful appeals to the Supreme Court of the United States (SCOTUS) such as occurred in Heller'08 and McDonald '10 in respect to the Second Amendment. Incorporation of the federal BoR against abuse by the state and local government is an on-going process and is by no means complete. Unless a right has been incoporated by the courts interpreting the 14th Amendment, Barron applies.


I visit THR Legal as I do Volokh Conspiracy, as an inquistive student. I am just a layman interested in the subject, but I did receive a leatherbound booklet on the Declaration of Independence, Constitution and Bill of Rights from the VFW while I was in highschool, and I did help typeset Levy's Encyclopedia of the American Constitution in the 1980's at Kingsport Press, and wrote the software to extract articles by article number for spin off specialty volumes for the USC bicentennial, like giving a navy history buff the opportunity to manage a database of Samuel Elliot Morison's United States Navy in World War II. My lay opinion was that the USC and BoR were intended to be the fuflfillement of the promise DoI, "that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness--That to secure these Rights, Governments are instituted among Men ..."

 

[CoalTrain49]

Good article explaining the situation. Thanks for posting that.

The right-by-right case-by-case description is about as good as it gets.

 

[RPRNY]

Given that federal law enforcement agencies do not currently enforce federal immigration or drug laws in Colorado, this is an interesting question but moot as of Friday.

ATF "should not" involve itself in the enforcement of state laws, but, during the last 8 years would likely have done so if not terribly inconvenient. As of Friday, the new regime is unlikely to encourage this abuse of federalism.

 

[Frank Ettin]

Frank,

Can you provide a citation to back up your claim that 18 USC 3051, 3052 and 3053 provide an authority for federal agents to make arrests for state law violations?

This simply is not true.....

On reflection, I think you're correct; and I was wrong. I was reading those statutes too broadly.

​

 

[Frank Ettin]

From Levy's Encyclopedia of the American Constitution, the article by Leonard W. Levy ....

Thank you.

 

[RickD427]

On reflection, I think you're correct; and I was wrong. I was reading those statutes too broadly.

​

Frank,
Thank you very much for the follow-up..........................