Have you ever wondered why all the hullabaloo over judicially forcing the first eight amendments of the Federal Constitution to be applicable between a State and its own resident citizens even though the Constitution is completely silent on the subject? Can anyone for a moment ever imagine a single State — that alone ten or more States — willing to surrender their judicial authority over their own resident citizens within the limits of their State? There wasn’t a chance in a million of that ever happening.
Those who strenuously embrace incorporation do so under the same general views as did an early architect of incorporation, Justice Hugo Black, namely because, Rep. John Bingham of Ohio who was the chief sponsor of the Fourteenth’s first section, referred to the “bill of rights” and the case of Barron vs. The Mayor and City Council of Baltimore during the congressional debates. Black interprets this as Bingham intending “to make the [entire] Bill of Rights, applicable to the states.”
In Barron, the court had ruled the obvious, that the first eight amendments were not limitations on the power of the States: “These amendments demanded security against the apprehended encroachments of the general government—not against those of the local governments.” In his dissent in Adamson v. California, Black writes:
My study of the historical events that culminated in the Fourteenth Amendment, and the expressions of those who sponsored and favored, as well as those who opposed, its submission and passage persuades me that one of the chief objects that the provisions of the Amendment’s first section, separately and as a whole, were intended to accomplish was to make the Bill of Rights, applicable to the states. With full knowledge of the import of the Barron decision, the framers and backers of the Fourteenth Amendment proclaimed its purpose to be to overturn the constitutional rule that case had announced. This historical purpose has never received full consideration or exposition in any opinion of this Court interpreting the Amendment.
Analysis of the congressional debates refutes Black’s unfounded assertion that says there was an intention to reverse the ruling in Barron in order to make the entire first eight amendments applicable against a State and its own resident citizens. Rep. Bingham brought up the case of Barron vs. The Mayor and City Council of Baltimore not for any intended purpose to reverse its holding that the first ten amendments are not applicable against the States, but to show Congress had no power over the organic law of a State that denies “eight hundred thousand natural-born citizens of the United States” the right to due process of law:
Mr. BINGHAM. The gentleman will allow me to ask him to point to a single decision. The gentleman says that the sufficiency of the Constitution has been tested and found in the past. I ask him now if he knows of a single decision in which the sufficiency of the Constitution to secure to a party aggrieved in his person within a State the right to protection by the prosecution of a suit, which by the organic law of the State was denied to him, has ever been affirmed, either by Federal statute or Federal decision, or whether the nation has not been dumb in the presence of the organic act of a State which declares that eight hundred thousand natural-born citizens of the United States shall be denied the right to prosecute a suit in their courts, either for the vindication of a right or the redress of a wrong? Where is the decision? I want an answer.
Mr. HALE. The gentleman will always get an answer when he asks me a question. It is never necessary for him to accompany his questions with a warning. I have not been able to prepare a brief for this argument, and therefore I cannot refer the gentleman to any case. As I never claim to be a very learned constitutional lawyer I have no hesitation in making the admission that I do not know of a case where it has ever been decided that the United States Constitution is sufficient for the protection of the liberties of the citizen. But still I have, somehow or other, gone along with the impression that there is that sort of protection thrown over us in some way, whether with or without the sanction of a judicial decision that we are so protected. Of course, I may be entirely mistaken in all this, but I have certainly somehow had that impression.
Mr. ELDRIDGE. I wish to know if the gentleman from Ohio [Mr. BINGHAM] has found or heard of a case in which the Constitution of the United States has been pronounced to be insufficient?
Mr. HALE. I would rather leave these gentlemen to answer one another at some other time, if it will answer their purposes as well.
Mr. BINGHAM. I beg leave to say that I am ready to answer the gentleman now, and to produce such a decision [Barron], whether the gentleman from New York is or is not.
Mr. HALE. This is no doubt a very interesting side issue; but the gentlemen will pardon me if I prefer to go on with my own speech now, and leave them to make theirs in proper order.1
The following day Rep. Bingham draws attention to Barron in response to his own question from the day before:
Mr. HALE. If he is relating what took place in the debate.
Mr. BINGHAM. I am relating what I asked the gentleman yesterday.
Mr. HALE. In the debate?
Mr. BINGHAM. Yes, sir, in the debate. A gentleman [Mr. ELDRIDGE] on the other side interrupted me and wanted to know if I could cite a decision showing that the power of the Federal Government to enforce in the United States courts the bill of rights under the articles of amendment to the Constitution had been denied. I answered that I was prepared to introduce such decisions; and that is exactly what makes plain the necessity of adopting this amendment. Mr. Speaker, on this subject I refer the House and the country to a decision of the Supreme Court, to be found in 7 Peters, 247, in the case of Barron vs. The Mayor and City Council of Baltimore, involving the question whether the provisions of the fifth article of the amendments to the Constitution are binding upon the State of Maryland and to be enforced in the Federal courts.2
It turns out Bingham’s only direct reference to Barron in the year 1866 was solely to answer his own question of whether an organic State law that denies prosecuting a suit in State court to citizens of the United States could be remedied in federal courts and not to show any deliberate intention to make the entire first eight amendments applicable between a State and its own citizens. Moreover, Bingham had pointed out in a speech on March 31, 1871 that “it was decided, and rightfully, that these [first eight] amendments, defining and protecting the rights of men and citizens, were only limitations on the power of Congress, not on the power of the States.” Not something someone would say if they were unhappy with the fact it had been decided the amendments were not limitations against the States (some have argued that Bingham felt Barron was wrongly decided).
Bingham showed no negative concern over the fact the first eight amendments had been decided to not be limitations against the States in a January 30, 1871 House Judiciary Committee Report he authored as chairman:
It had been judicially determined that the first Eight Amendments of the Constitution were not limitations on the power of the States, and it was apprehended that the same might be held of the provision of the second section, fourth article. To remedy this defect of the Constitution, the express limitations upon the States contained in the first section of the fourteenth amendment, together with the grant of power in Congress to enforce them by legislation, were incorporated in the Constitution.3
Here Bingham makes clear the “defect” the Fourteenth Amendment sought to remedy was not to change the fact the first eight amendments were not enforceable against the States, but to remedy the defect of a missing enforcement provision for the privileges and immunities of United States citizens. Two months later on March 31, he suggested during debates on a very partisan anti-KKK bill that the first eight amendments were a limitation against the States through the privileges and immunities of United States citizens as distinguished from citizens of a State:
Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, Fourteenth Amendment of the constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first Eight Amendments to the Constitution of the United States. Those eight amendments are as follows: [Quotes the eight amendments here.] These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment.4
For citizens of a State under their own constitutions there isn’t anything in these Bingham remarks to get excited over. You don’t make a distinction between citizens of a State and citizens of the United States if there is no important distinction between the two when it comes to privileges or immunities. Incidentally, Bingham was fond of referring to the privileges or immunities under article four, section two as the “privileges and immunities of citizens of the United States,” and thus, it is clear the language under the Fourteenth Amendment that no State shall “abridge the privileges or immunities of the citizens of the United States” was no different in meaning then under article four. 5
In May of 1868 Bingham points out the Fourteenth Amendment’s privileges and immunities allows Congress to enforce the same restrictions that was placed on the State of Missouri in 1821, to wit, that Missouri’s constitution should “never be construed to authorize the passage of any law, and no law shall ever be passed in conformity thereto, by which any citizen of either of the States of the Union shall be excluded from the enjoyment of privileges or immunities to which such citizens are entitled under the Constitution of the United States.” (6 U.S. Statutes at Large, 645)6
Moreover, there is a significant factual problem with these Bingham remarks that needs pointing out: Bingham wrote two months earlier in House Report No. 22 that the Fourteenth Amendment does not “refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four, section two,” and the Fourteenth Amendment “did not add to the privileges or immunities before mentioned.”7
The problem is this: The privileges and immunities of United States citizens under section two of the fourth article was never understood to have anything to do with any of the first eight amendments by either the founders, scholars or the courts. In fact, there were no bill of rights under the U.S. Constitution when the privileges and immunities of United States citizens was finally adopted under article four, section two, and when the first eight amendments became part of the Constitution, no one claimed they had become privileges or immunities of United States citizens. For there to be any validity to these 1871 Bingham remarks he would had to have specifically declared in writing under section one of the Fourteenth Amendment that all of the first eight amendments are now privileges or immunities belonging not only to United States citizens, but also citizens of the States to have any far reaching affect.
However, two months earlier Bingham and fellow members of the House Judiciary Committee said that never happened because the Fourteenth Amendment “did not add to the privileges or immunities.” No doubt the judiciary committee was speaking the truth in H.R. Report No. 22 because the Fourteenth Amendment does not address other provisions of the bill of rights other than article four, section two and due process. Senator Howard did suggest the first eight amendments should be included in the privileges or immunities of United States citizens but did not endorse that recommendation nor made any claim that in fact they were included. Additionally, Howard says:
I have recited, some by the first eight amendments of the Constitution; and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it, are secured to the citizen solely as a citizen of the United States and as a party in their courts.8
The interesting thing is Sen. Howard made no attempt to say this would change under the proposed Fourteenth Amendment, especially between citizens and their own State of residence. The New York Times on November 15, 1866, wrote of the Fourteenth Amendments privileges and immunities clause: “This is intended for the enforcement of the Second Section of the Fourth Article of the Constitution, which declares that ‘the citizens of each State shall be entitled to all the privileges and immunities of the citizens in the several States.’”
Bingham remarked in February of 1866 that the “existing amendments are not applicable to and do not bind the States, they are nevertheless to be enforced and observed in States.”9 At the time Bingham felt the Fourteenth Amendment might make it possible to enforce the oath of State judges and lawmakers:
The oath, the most solemn compact which man can make with his Maker, was to bind the State Legislatures, executive officers, and judges to sacredly respect the Constitution and all the rights secured by it. And yet there is still another provision lest a State Legislature, with the approval of a State Executive, should, in disregard of their oath, invade the rights of any citizen or person by unjust legislation, violative alike of the Constitution and the rights secured by it, which is very significant and not to be overlooked, which is, “And the judges of every State shall be bound by the Constitution of the United States, anything in the constitution and laws of any State to the contrary notwithstanding.”10
This would be a weak argument if Bingham was suggesting State officers and judges were forced to recognize limitations imposed only upon Congress — which means he probably were speaking of article four, section two as the rights State legislatures were obligated to recognize. Moreover, he can be found referring to article four, section two in speeches as a standalone bill of rights (see below).
What was always the understanding of the meaning privileges or immunities of United States citizens?
Chancellor Kent (2 Commentaries, page 71) says: “If they [citizens of the United States] remove from one State to another they are entitled to the privileges that persons of the same description are entitled to in the State to which the removal is made, and to none other.” He also says these do not extend to citizens of their own State but only those citizens who “remove from one State to another.”
In other words, only when a citizen of a State removes himself does a National citizenship follow and not beforehand because he is only a citizen of a State wherein he resides. Bingham explains this removal does not mean a transfer of laws from one State to another:
The gentleman will pardon me. The amendment is exactly in the language of the Constitution; that is to say, it secures to the citizens of each of the States all the privileges and immunities of citizens of the several States. It is not to transfer the laws of one State to another State at all. It is to secure to the citizens of each State all the privileges and immunities of citizens of the United States in the several States. If the State laws do not interfere, those immunities follow under the Constitution.11
Every citizen has certain universal privilege or immunity due to being a citizen, such as an absolute right to live (personal security), personal liberty, and the right to acquire and enjoy property. Others include the right to make and enforce contracts, to purchase, hold, and enjoy property, and to share the benefit of laws for the security of person and property. These are the rights of citizenship in all of the States and means no State can discriminate in these fundamentals protections of citizenship because someone may be a citizen of a different State or race.
Many wrongly assume that when Bingham spoke of a “bill of rights” he must have been speaking of the entire first eight amendments, and this of course is demonstratively false. The privileges or immunities of United States citizens and due process of law were a “bill of rights” in their own separate right. Rep. Bingham refers to the privileges or immunities of United States citizens under article four, section two and due process — both clearly incorporated under the Fourteenth Amendment as the “bill of rights” Bingham was addressing:
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“Gentlemen admit the force of the provisions in the bill of rights, that the citizens of the United States shall be entitled to all the privileges and immunities of citizens of the United States in the several Slates, and that no person shall be deprived of life, liberty; or property without due process of law.”12
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“What more could have been added to that instrument to secure the enforcement of these provisions (privileges and immunities of United States citizens) of the bill of rights in every State, other than the additional grant of power which we ask this day? Nothing at all.”13
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“[W]e are not opposed to the bill of rights that all shall be protected alike in life, liberty, and property; we are only opposed to enforcing it by national authority, even by the consent of the loyal people of all the States.”14
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“But I feel that I am justified in saying, in view of the text of the Constitution of my country, in view of all its past interpretations, in view of the manifest and declared intent of the men who framed it, the enforcement of the bill of rights, touching the life, liberty, and property of every citizen of the republic within every organized State of the Union …”15
It should be evident that when he speaks of the “bill of rights” he was not directly referring to entire first eight amendments of the U.S. Constitution. I should point out once more that the rights to protection of life, liberty and property was considered a privilege of United States citizens under article four, section two.
House Judiciary Committee chairman, James F. Wilson of Iowa, understood what bill of rights Bingham sought to enforce: “I find in the bill of rights which the gentleman (Bingham) desires to have enforced by an amendment to the Constitution that ‘no person shall be deprived of life, liberty, or property without due process of law.’” Wilson mentions no other provisions found in any of the first eight amendments.
Bingham never once pointed out the entire first eight amendments when speaking of the bill of rights in the year 1866, only article four, section two and due process. No doubt if he truly intended to make the entire first eight amendments applicable between a State and its resident citizens he would had clearly indicated that intent — especially in the absence of any legal theory that said the privileges and immunities of United States citizens included any or all of the first eight amendments against State denial. Of course, had he said it was the intention to make the first eight amendments applicable against a State and its own resident citizens would had the same chance of being ratified by two or more States as you being killed from the impact of an asteroid.
On the other hand, there was a good chance of ratifying a proposition that simply enforces what already was found under the original Constitution, namely, protecting citizens of the United States (read: newly emancipated black citizens) in their privileges and immunities whenever they go from State to another. One of the most profound statements Bingham may had made in regards to the Fourteenth Amendment can be found in House Report No. 22 where he wrote the “words ‘citizens of the United States,’ and ‘citizens of the States,’ as employed in the Fourteenth Amendment, did not change or modify the relations of citizens of the State and the nation as they existed under the original Constitution.”16
In other words, the Fourteenth Amendment did not replace State citizenship with National citizenship. Bingham pointed out this absolute truth before and after the adoption of the Fourteenth Amendment when describing the privileges and immunities of United States citizens: “This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States.”17
Again, he reinforces this point on February 28, 1666 by saying “if you intend every citizen of every State shall in the hereafter have immunities and privileges of citizens in the several States, you must amend the Constitution.” In simple English, he is simply saying it is only those citizens of a State who remove themselves to another who can claim these privileges or immunities as citizens of the United States. This is exactly how the privileges or immunities of citizens of the many States has always worked.
Citizens of the United States, Not Citizens of a State
The evidence is overwhelming that the 39th Congress had no intention of protecting State citizens from their own laws and constitutions (Bingham considered State citizens under the protection of their own Constitution and laws18), but only United States citizens as such within any State of the Union. Members of Congress always made it clear it was not citizens under their own State constitutions they sought to protect, but citizens of one State within another State as Bingham makes clear here:
Bingham again asks:By simply adding an amendment to the Constitution to operate on all the States of this Union alike, giving to Congress the power to pass all laws necessary and proper to secure to all persons—which includes every citizen of every State—their equal personal rights; and if the tribunals of South Carolina will not respect the rights of the citizens of Massachusetts under the Constitution of their common country, I desire to see the Federal judiciary clothed with the power to take cognizance of the question …19
I ask that South Carolina, and that Ohio as well, shall be bound to respect the rights of the humblest citizen of the remotest State of the Republic when he may hereafter come within her jurisdiction.20
Bingham asked Rep. Robert Hale of NY:
I respectfully ask him [HALE] to inform us whence he derives the authority for supposing, if he does suppose, that any State has the right to deny to a citizen of any other State any of the privileges or immunities of a citizen of the United States. And if a State has not the right to do that, how can the right of a State be impaired by giving to the people of the United States by constitutional amendment the power by congressional enactment to enforce this provision of their Constitution?21
Radical Republican, John Broomall of Pennsylvania, complained of the treatment of citizens of a State within another State:
For thirty years prior to 1860 everybody knows that the rights and immunities of citizens were habitually and systematically denied in certain States to citizens of other States: the right of speech, the right of transit, the right of domicile, the right to sue, the writ of habeas corpus, and the right of petition.22
Indiana Governor, Oliver P. Morton, said the purpose of the Fourteenth’s first section was to prevent discrimination of citizens from other States:
It has happened in times past that several of the Southern States discriminated against citizens of other States, by withholding the protection of the laws life and liberty, and denying to them the ordinary remedies in the courts for the vindication of their civil rights, and hence the adoption of this provision.23
As the reader probably can determine on their own, these discrimination charges against other State citizens had everything to do with those citizens who were primarily black. Generally, many States did not recognize people of color as citizens like some of the northern States had. This is why it was important to define who were citizens under the Fourteenth Amendment so no State law could recognize only white persons as citizens of the United States, leaving black citizens to be treated as though they were alien.
Bingham, like other Republicans, charged States with violating the rights of citizens during the congressional debates of 1866. It appears, however, these charges were not over a State violating the rights of its own resident citizens but of citizens of other States (citizens of the the United States). Example, Bingham often charged the State of Oregon with violating the rights of citizens.
The reason was under Sec. 4 of the Oregon Constitution there was the provision that read, “No free negro or mulatto, not residing in this State at the adoption of this Constitution, shall ever come, reside or be, within this State, or hold any real estate, or make any contract, or maintain any suit therein …” To Bingham, free blacks were citizens of the United States because they were born to parents who owed no allegiance to any foreign country, and the Oregon Constitution violated article four, section two of the U.S. Constitution that reads: “The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.”
Another example would be accusing the State of Georgia a number of times for violating the rights of citizens by throwing them in the penitentiary for teaching their fellow man (Indians) the gospel. Turns out they were South Carolina missionaries who had ignored Georgia’s law of trespass upon Indian land. These missionaries were set free once they promised not to violate the law anymore and return to South Carolina.
As it may well be apparent by now, the privileges and immunities of United States citizens have no effect on citizens of State within their own State of domicile. In this regard, the ruling in the infamous Slaughterhouse cases in limiting the application of the privileges and immunities to only citizens of the United States and not citizens of a State was correct because the opinion was fully supported by both the legislative history, the text and the understanding of how privileges or immunities of United States citizens under Article IV worked.
Of course, due process and the equal protection of the laws (identical protections to protect against both denial and unequal justice) would tend to address citizens under their own State of residence, but in reality this is a very narrow limitation against denial or unequal justice that isn’t likely for any State to violate. Laws of a State are the result of their citizens demand and there is very little, if any, interest for citizens to deny themselves protections in life, liberty, or property within their State. The addition of due process and the equal protection of those laws of due process served the purpose of extending protection to not just citizens of the United States, but to alien and stranger alike.
Due Process
Incorporation today is judicially accomplished through the “liberty of person” under the due process provision and not through the privileges and immunities of United States citizens, which is odd because no one ever suggested the liberty of person had anything remotely to do with fundamental rights found under any of the first eight amendments. Thomas Jefferson wrote in 1823 of the liberty of person under due process:
There are certain principles in which the constitutions of our several States all agree, and which all cherish as vitally essential to the protection of the life, liberty, property and safety of the citizen. [One is] Freedom of Person, securing every one from imprisonment, or other bodily restraint, but by the laws of the land.
Congress in 1868 passed a bill (“Rights of American Citizens in Foreign States”) highlighting the meaning of this “liberty of person” under “due process of law” as it had always been understood to mean: Freedom from unlawful physical detention or imprisonment. Of course, this “liberty of person” has always been protected by the great writ of habeas corpus, which had nothing to do with anything other than improper physical detention or imprisonment. Bingham had made it clear what was understood by the words “due process of law”:
The gentleman read from the Magna Charta of England, that “no freeman shall be taken or disseized,” &c., “but by the judgment of his peers and the law of the land;” forgetful of the fact that the words “no freeman” were words of limitation, and limited this great charter at the time it was adopted to one half the population of England, and forgetful also that these words of limitation were swept away by the Constitution of the United States, in which it is declared that “no person shall be deprived of life, liberty, or property without due process of law.”24
There was no rational basis in fact for the court in Gitlow v. People of New York (1925) to say, “[f]or present purposes we may and do assume that freedom of speech and of the press … are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.” Under this deeply flawed assumption, any person could conceivably demand habeas corpus proceedings whenever they feel their freedom of speech is being infringed. Gitlow has provided future courts a blindfold to place over their eyes in order to follow this corrupt assumption over a cliff without ever questioning if there was any factual basis behind the assumption.
There is nothing found under the Fourteenth Amendment’s first section that would extend to Congress under section five any authoritative powers over the States because the first section consists only of “negative limitations” against State authority that requires no positive laws from Congress in order to be observed. In other words, the first section is a law unto itself. Bingham explains what would constitute a deprivation by the States:
There are other negative provisions in the Constitution of the United States; for example, the express negative provision that no State shall pass any law impairing the obligation of contracts. By virtue of your judiciary act, as it has been in force from the foundation of the Government to this day, that limitation upon the power of the States is uniform, and whenever or where ever any State has undertaken by legislative enactment or by constitutional provision, if you please—I care not which—to impair the obligation of contracts, that wrong has, by the operation of your law, been righted.25
This suggests for there to be a violation of the Fourteenth’s first section there would have to first be some act of State authority to change the States Constitution or enact some law that not only would directly deny State protection in the laws of due process to some class of persons, or might administer its laws of due process by statute unequally in State courts (due process is the protection of laws that not only cannot be denied, but also must be equally administered). Bingham said in the year 1871 that the Fourteenth Amendment provides security against “the abuses of State authority,”26 not against private or municipal government acts — or in other words — only those acts that are sanctioned and authorized under authority of the State.
Bingham’s close colleague, Rep. Samuel Shellabarger of Ohio, said the effect of the first section of the Fourteenth Amendment is a “negation upon the power of the States, and that as the fifth section of that amendment only authorizes Congress to enforce the provisions thereof, therefore Congress has no power by direct legislation to secure the privileges and immunities of citizenship, because the provision in each section is in the form of a mere negation.”27 The text of the Fourteenth Amendment certainly supports what Rep. Shellabarger says.
It was never proper in principal for any State to condemn anyone to death, imprison or confiscate their freehold property without the proceedings of the law of the land of the State that protects against arbitrary acts of the State in depriving someone of life, liberty, or property. Citizens of a State do not send representatives to their Capitals to pass laws to deprive them of these laws of protection, but some States were known to withhold them against black citizens of other States (Example: Oregon). However, what could be done if a State did indeed amended their constitution or passed some statute that did ignore the citizenship of people of color and withheld the protection (or unequal protection) of the laws?
Nothing could had been done until passage of the Fourteenth Amendment.
Saying a State deprives someone of the States laws of due process because some might feel a law is unfair or harsh, is not the same as a State withholding its laws of protection by direct authority of the State, which is the only concern of the first section.
For those States who did not practice arbitrary denial of the laws of protection before condemning anyone in life, liberty and property, the Fourteenth Amendment had no effect. Rep. Bingham confirms this when he told Rep. Robert Hale of New York that the proposed Fourteenth Amendment “under no possible interpretation can it ever be made to operate in the State of New York while she occupies her proud present position.” Additionally he says, it would apply only to States “that have in their constitutions and laws today provisions in direct violation of every principle of our Constitution,” which “applies unquestionably to the State of Oregon.”28
As already pointed out, the Oregon Constitution discriminated against black citizens of the United States by declaring they shall never “come, reside or be, within this State,” or hold any real estate, make or enforce contracts, etc. This isn’t to say a State cannot refuse anyone from their limits because Bingham had agreed in the past it was permissible under the Constitution for any State to say convicted felons, vagabonds or aliens shall not come within State limits. Indeed, there was nothing shocking about laws preventing foreigners from owning real estate or conducting business within State limits.
How do we know all of the above is the correct reading of the Fourteenth Amendment? We know because Bingham said at least half-dozen times in speeches before and outside of the House of Representatives that the Fourteenth Amendment takes away no right that ever belonged to the States or their citizens. Some examples:
“It (Fourteenth Amendment) takes from no State any right which hitherto pertained to the several States of the Union, but it imposes a limitation upon the States to correct their abuses of power, which hitherto did not exist within the letter of your Constitution.”29
“The adoption of this proposed [fourteenth] amendment will take from the States no rights that belong to the the States.”30
“Do gentlemen say that by so legislating (enforcing the Fourteenth Amendment) we would strike down the rights of the State? God forbid. I believe our dual system of government essential to our national existence.”31
“No right reserved by the Constitution to the States should be impaired …”32
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“I repel the suggestion made here in the heat of debate, that the committee or any of its members who favor this proposition seek in any form to mar the Constitution of the country, or take away from any State the right that belongs to it, or from any citizen of any State any right that belongs to him under that Constitution.”33
“[T]he Proposed amendment does not impose upon any State of the Union, or any citizen of the Union, any obligation which is not now enjoined upon them by the very letter of the Constitution.”34
Federal interference with how citizens govern themselves in terms of their own laws and constitutions would be a denial of a right citizens of a State have long reserved for themselves. Therefore, Bingham is clearly addressing a States obligation towards non-discrimination of fundamental rights of citizenship between citizens of other States under Article IV, Section II.
Conclusion
The Fourteenth Amendment was, in principal, a desirable addition to the Constitution of the United States to protect newly emancipated freedmen after the war who were returning to former rebel States governed by pro-confederate men approved by President Johnson while taking away nothing from the States under the original Constitution. Without the Fourteenth Amendment there was nothing to stop reorganized rebel States from ignoring citizenship of newly emancipated freedmen by withholding the protections of the laws of due process, to make and enforce contracts, prevent permanent domicile, etc.
However, it has been subjected to judicial abuse through an assumption that has gone very wrong by the court pretending the “liberty of person” secures fundamental rights, something the word “liberty” under due process was never understood to mean, or modified to mean by the framers. This has resulted in cracks and holes being formed in that division of sovereignty between State and Federal Governments, resulting in laws of cities, counties, police and schools coming within the purview of federal courts.
The Fourteenth Amendment incorporated what it says it incorporated, nothing more. It did not replace the bill of rights of State citizens with the Federal bill of rights. If it really had incorporated the entire first eight amendments against a State and its own citizens then there was no purpose for Congress to attempt to amend the Constitution with the Establishment Clause of the First Amendment in 1875 to apply against States. This attempt was not in response to the Slaughterhouse cases, but because of a request from President Grant and the understanding among members of Congress the privileges or immunities of citizens of the United States had nothing to do with citizens of a State or any of the first eight amendments.
In 1869 after the Fourteenth Amendment had become officially adopted, Chief Justice Chase denied a writ of error in Twitchell v. Commonwealth35 on the grounds the 5th and 6th amendments did not apply to States, only the federal government. What made this case very significant was the fact Twitchell’s lawyer, William Wheeler Hubbell, had advocated in 1863 for a constitutional amendment to overrule Barron and to make the Bill of Rights binding on the States. The fact he did not argue the Fourteenth Amendment did just that speaks volumes.
The truth of the matter is, loyal States of the Union felt they were simply giving “enduring effect” of the Civil Rights Bill of 1866 when ratifying the Fourteenth Amendment: “In its special application to the condition of the insurgent States, its adoption by Congress was designed to give certain and enduring effect to the provisions of the Act commonly called the Civil Rights Bill.” 36
Senator John Sherman of Ohio, a Radical, said the Fourteenth Amendment’s first section “was an embodiment of the Civil Rights Bill.”37
During the debates for the adoption of the Fourteenth Amendment during the Michigan convention in July of 1867, P.D. Warner from Oakland read the Fourteenth’s first section and said, “I think that is substantially the language of the Civil Rights Bill.” The Civil Rights Bill of 1866 protected against citizenship discrimination between different classes of citizens (naturalized citizens, other State citizens) but did not prevent a State from discriminating between its own citizens.
Of the forty-seven sections of civil rights legislation passed by Radical Republicans, forty-two had either been repealed directly, or declared invalid by the Court. This included enforcement acts of the Fourteenth Amendment. Radicals, however, suffered an even worst fate than their Reconstruction Acts when they were voted out of power en masse beginning in 1874.
If the court wishes to continue with their incorporation nonsense they simply should insist on a constitutional amendment that puts everyone under the control of a single central government. Maybe then they could stop pretending to be enforcing constitutional law that never existed or, has no basis to exist.
Endnotes
- Cong. Globe, 39th, 1st Sess., 1064 (1866)
- Id. at 1089
- Cong. Globe, 41st, 3rd Sess., H.R. Report 22 (1871)
- Cong. Globe, 42nd 1st Sess., Appendix, 84 (1871)
- Cong. Globe, 39th, 1st Sess., 158 (1866)
- Cong. Globe, 40th, 2nd Sess., 2463 (1868)
- Cong. Globe, 41st, 3rd Sess., H.R. Report 22 (1871)
- Cong. Globe, 39th, 1st Sess., 2765 (1866)
- Id. at 1090
- Id.
- Id. at 1095
- Id. at 1089
- Id. at 1090
- Id. at 1089
- Id. at 1290
- Cong. Globe, 41st, 3rd Sess., H.R. Report 22 (1871)
- Cong. Globe, 39th, 1st Sess., 158 (1866)
- Id. at 1292 (Bingham: “What is the limitation, sir? Simply this, that the care of the property, the liberty, and the life of the citizen, under the solemn sanction of an oath imposed by your Federal Constitution, is in the States, and not in the Federal Government. I have sought to effect no change in that respect in the Constitution of the country.” Bingham could not have sought anything stronger or very few, if any, States would have been willing to ratify.)
- Id. at 158
- Cong. Globe, 39th, 1st Sess., 158 (1866)
- Id. at 1089
- Id. at 1263
- Cincinnati Commercial, July 19, 1866
- Cong. Globe, 40th, 1st Sess., 542 (1867)
- Cong. Globe, 40th, 3rd Sess., 727 (1869)
- Cong. Globe, 41st, 3rd Sess., 1283 (1871)
- Cong. Globe, 42nd 1st Sess., Appendix, 153 (1871)
- Cong. Globe, 39th, 1st Sess. 1065 (1866)
- Cincinnati Commercial, August 27, 1866. Bingham speech at Bowerstown, Ohio, August 24, 1866.
- Cong. Globe, 39th, 1st Sess. 1090 (1866)
- Cong. Globe, 42nd 1st Sess., Appendix, 84 (1871)
- Id. at 85
- Cong. Globe, 39th, 1st Sess. 1088 (1866)
- Id. at 1034
- 74 U.S. (7 Wall.) 321 (1869)
- Alexander H. Bullock, Massachusetts Governor, January 4, 1867
- Cincinnati Commercial, September 29, 1866
What made this case very significant was the fact Twitchell’s lawyer, William Wheeler Hubbell, had advocated in 1863 for a constitutional amendment to overrule Barron and to make the Bill of Rights binding on the States. The fact he did not argue the Fourteenth Amendment did just that speaks volumes. That is damning as hell against incorporation (at least from the perspective that important lawyers did not think it incorporated the BofR’s).
I think the arguments against current incorporation are far stronger then arguments for incorporation.
That Jon Roland article you linked to is pure fabricated non-sense. He could at least have the decency to quote Bingham in proper context.
Hmm, well incorporation is BS, the courts do not create law, the 14th stands on its own, it is not selective. this is a great resource:
http://www.constitution.org/col/intent_14th.htm
This is a serious hit piece on incorporation.
The word “incorporation” most emphatically does NOT appear in the U.S. Constitution. The Constitution does limit the powers of the several states in Article I section 10. For example the limitation against state protected nobility corresponds to equal protection of the law. A nobility are persons committing felony who are specially immune from prosecution.
It does appear Senator Howard never said the privileges or immunities of United States Citizens embraced the first Eight Amendments and only says they “should” be included. That is a big, big difference from asserting that he said they were included.
I agree the point is moot whether they are or not because these privileges and immunities of United States Citizens belong to citizens only upon removable from one state to another for which they are not a resident of. I think the record is so clear on that that it is amazing people would try and argue differently.
Don Gwinn, Chicago Gun Rights Examiner writes: “You cite evidence that Bingham disliked the outcome of Barron and evidence that he thought it had been correctly decided, and state that both can’t be true …”
I think he wrote Bingham approved of Barron and not that he disliked it. Why overturn a ruling that says all Eight Amendments were no limitation of the states when you approve of it? From his speech in 1866 he showed he was only interested in due process and not the entire Eight Amendments.
Moreover, Bingham had pointed out in a speech on March 31, 1871 that “it was decided, and rightfully, that these [first eight] amendments, defining and protecting the rights of men and citizens, were only limitations on the power of Congress, not on the power of the States.” Not something someone would say if they were unhappy with the fact it had been decided the amendments were not limitations against the States.
I don’t see how that follows at all. If Bingham saw a need for a Constitutional amendment (the 14th) in order to undo Barron, then he has to have been arguing that Barron was “rightfully” decided. If Barron had been wrongly decided, then an amendment to undo it would not be necessary. If it was rightly decided based on the Constitution as written at the time, and you were unhappy with the result, then a constitutional amendment would be the legally correct way to get your desired result next time.
You cite evidence that Bingham disliked the outcome of Barron and evidence that he thought it had been correctly decided, and state that both can’t be true … but that’s clearly not so. I’m no lawyer, but I’m quite familiar with the concept of acknowledging and obeying a law I don’t like while working to change it.
This post throws egg all over Professor Kurt T. Lash’s The Origins of the Privileges or Immunities Clause, Part I where he states, “John Bingham did not base the final version of the Fourteenth Amendment on Article IV, he never relied on Corfield, and he went out of his way to distinguish the rights protected under Section One from the rights protected under Article IV.”
He should had been reading your works and that House Report #22 by Bingham.
In Reply to JimAZtec: Hello Jim! Because the U.S. Constitution is Supreme Law, no necessity exists to “overturn the G.D. law.” Such a law would be void, a complete nullity, from the start.
ctd: “He evades voluminous quotes from then-contemporary supporters and detractors declaring that those having their nation-protected natural rights denied by the state would see their denial stopped.”
Maybe it is irrelevant to the discussion? We are talking about citizens of the United States here, not citizens of a state! You know, “then-contemporary supporters and detractors” never once suggested the fourteenth would replace a state bill of rights with the federal bill of rights in terms of citizens of a state. I mean, no one, Howard or Bingham included, ever claimed the first eight amendments were applicable to citizens of a state through due process! Instead, it was privileges and immunities that might allow that, but only citizens of the United States could claim such a thing and not citizens of the states.
ctd writes: “This article is inane. Using and redefining selective quotes - to wit avoiding vast numbers of harshly & plainly contraindicating quotes - the author proceeds to create circular self-serving arguments which degenerate the whole amendment into nothingness.”
The quotes are accurate and not out of context. Can you point to any that are selective and out of context? I thought Bingham quotes explained his legal thinking very well for such a short post.
You are blaming the author for making the fourteenth amendment “nothingness”? Seems to me it was Bingham himself doing that, and perhaps for good reason if he wanted the amendment adopted.
ctd writes: “He evades voluminous quotes from then-contemporary supporters and detractors declaring that those having their nation-protected natural rights denied by the state would see their denial stopped.”
I believe the 14th did in fact prevent the denial of due process for the taking of life, liberty and property. I doubt very seriously any state would have signed off to anything more than that.
ctd writes: “The whole article and argument is eviscerated by the petitioner’s brief in McDonald. How SCOTUS phrased the question indicates their interest in a good case to reverse SlaughterHouses, and thus this page’s argument.”
Ah, now I see where you are coming from. You want to get Slaughter-house out of the way along with the entire recorded purpose of the Fourteenth so you can argue for a constitutional right to weapons at home through the P&I’s. If that works it will turn the P&I’s of United States citizens on their head by making them P&I’s of state citizens. Horrible abuse of constitutional interpretation that would be.
This article is inane. Using and redefining selective quotes - to wit avoiding vast numbers of harshly & plainly contraindicating quotes - the author proceeds to create circular self-serving arguments which degenerate the whole amendment into nothingness. He goes to great length to insist those quotes referring to “the bill of rights” don’t mean the bill of rights, then declares wonder that the bill of rights is not referred to. He evades voluminous quotes from then-contemporary supporters and detractors declaring that those having their nation-protected natural rights denied by the state would see their denial stopped. Having observed that some states infringe on natural rights, the Amendment is deemed to exist not to compel the states to respect/protect natural rights (enumerated rights included), but only compels the federal government to, indeed and with emphasis, continue doing what it has been doing.
Upshot is, according to this article, Congress and the states went to great lengths (after slaughter of a half-million in reaching this national Constitutional issue) to amend the Constitution to do nothing different beyond emphasize “oh, this part, really means whatever it says.”
The whole article and argument is eviscerated by the petitioner’s brief in McDonald. How SCOTUS phrased the question indicates their interest in a good case to reverse SlaughterHouses, and thus this page’s argument.
Mike Hansberry: “Jim, I read those texts again but there is no “as members of a militia” restriction either. It is simply not there. “
I said those were in the debates used as justification for the temporary law. The issue was not owning a gun for individual freedmen to defend themselves, but to defend themselves through armed and trained militias.
Mike Hansberry: “Since you accept that the right to bear arms includes the right to self defense and to defend one’s property, why do you insist these actions can only be done “as members of a militia”?”
As I have told you over and over and then some more, there is no constitutional right to own a gun at home for any purpose no more than a constitutional right is needed to own a broom!!!!!
The 2A simply acknowledges the military power of the people in the states belongs with them and not national government in the form of a select militia or standing professional army. Individuals cannot protect themselves and property against indians, mobs or military forces with a flintlock at home! The people preferred protection through themselves under a trained and armed militia.
As Larry pointed out before, you don’t need a constitutional right to own a frickin’ gun. If there is no law against it or restrictions you are free to own all the guns you desire. If you don’t like a gun restrictions then attack the goddamn law and overturn it, but don’t whine like a 2-year-old that it is a constitutional right for you to have a gun at home.
In Reply to JimAZtec:
Jim, I read those texts again but there is no “as members of a militia” restriction either. It is simply not there.
Since you accept that the right to bear arms includes the right to self defense and to defend one’s property, why do you insist these actions can only be done “as members of a militia”? The words “secured to and enjoyed by all the citizens of such State or district, without respect to race or color or previous condition of slavery” are surely broader than “members of a militia”. If you say “all the citizens” are members of the militia then there is no real distinction in our positions, it is just word play. If you say not all citizens are members of a militia, then your position is at odds with the texts we are discussing.
Mike Hansberry: “Neither the bill as initially presented to the president, nor the act that finally passed over Johnson’s veto had such limiting language (‘who were members of the militia’). You are making it up as you go.”
No he isn’t. YOU are!!!!!!! As Larry points out, it was the disarming of members of the militia that lead to protecting the freedmen’s constitutional right to bear arms as members of a militia, not to protect having a gun at home!!!!
When S.C. finally allowed freedmen to form armed all black militias in the State, it was noted in congress that the freedmen now were exercising their constitutional right to bear arms because they could now defend themselves and property!!!!! You think having a gun at home is sufficient to protect an individual and property against armed mobs. It isn’t. It was a well organized and trained militia who could defend life and property. States wanted nothing to do with standing armies. Armed individuals is nothing compared to a professional army or a trained militia with many members.
Stop spewing your debunked Halbrook theories here. You have no ideal what you are talking about! God it is just pathetic how you take over threads on here repeating the same lame NRA talking points. Give it a rest.
In Reply to Larry:
Larry Said: as additional protection of Freedmen who were members of the militia organized by Congress
Neither the bill as initially presented to the president, nor the act that finally passed over Johnson’s veto had such limiting language (“who were members of the militia”). You are making it up as you go.
From the bill: “including the constitutional right of bearing arms, are refused or denied to negroes, mulattoes, freedmen, refugees, or any other persons, on account of race, color, or any previous condition of slavery or involuntary servitude ..”
From the act that eventually passed over Johnson’s veto: “…including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district, without respect to race or color or previous condition of slavery.”
Furthermore there is ample evidence that Congress was in fact concerned with security of person and seeing that the freedmen were able to exercise the RKBA in their own defense. http://www.guncite.com/journals/hal-dc.html
In Reply to Anonymous:
You are assuming facts not in evidence. Do you have any understanding why Rep. Thomas Elliot of Mass., who was the floor manager of the supplementary Freedmen’s Act of 1866, inserted the words, “including the constitutional right of bearing arms”?
It had nothing whatsoever to do with recognizing any alleged right to own a gun as part of the security of person but as additional protection of Freedmen who were members of the militia organized by Congress and, said Elliot, were by law under the guardian care of Congress until reconstruction was completed.
In Reply to Larry:
Larry said: I don’t understand why you think the RKBA and security of person has anything to do with each other.
Congress understood, the Freedmen Bureau stated: “…to have full and equal benefits of laws and procedings for the security of person and estate, including the constitutional right of bearing arms…”
Now you can say all you want that Congress did not include the RKBA with other laws for security of person and estate, but it is there in black and white for all to read.
In Reply to Mike Hansberry:
I don’t understand why you think the RKBA and security of person has anything to do with each other. The laws of protection in due process is what provides security to any person, not keeping a gun at home if that is what you are trying to insinuate.
The Enforcement Act of 1870 plainly defined security of person to the the full and equal benefit of all laws and proceedings of due process while never saying anything about keeping arms at home.
RKBA is a twisted way of saying right to be free of a professional standing army which was the #1 threat to liberty according to James Madison.
In Reply to Larry:
The Freedmen’s Bureau act plainly referred to the RKBA as a security of person and estate, not merely a right to serve in the militia in defense of the state as Jim urges. But you are right to point out that Congress meant that security of person to apply to all citizens.
If you are correct about Fisk referring to the KY constitution, then Jim’s argument regarding the Fisk letter fails completely as the right to bear arms of the KY const. surely relates to security of person and estate. See Bliss v. commonwealth, and while the KY const. was later amended to allow restrictions on concealed carry, the language protecting an individual right to bear arms remained.
I think you guys are really misstating the purpose of the Feedmen Act. The inclusion of the constitutional right to bear arms was to combat all white or black militias in the south under temporary governments of Johnson. The pertaining language was, “…including the constitutional right to bear arms, shall be secured to and enjoy by all the citizens of such State or district without respect to race or color, or previous condition of slavery.”
As for KY, Fisk was speaking of the constitutional right under the KY constitution, not the 2A.
In Reply to JimAZtec:
Jim Said: I never read anything in congressional debates that could be assumed to mean the RKBA means security of person. Security of person has nothing to do with ownership or use of anything!
Do you really think Congress in the Freedmen’s bureau act was not including the RKBA with laws for security of person and estate? (see my post #1230 for quote)
Your insistence that Fisk and Congress were concerned only with the freedmen’s right to defend KY against federal encroachment is absurd. The Federal government freed the freedmen! The threat to the freedmen that concerned Fisk was from KY and elements within, not from the federal government.
Jim said: Whenever someone in congress brought up the matter it dealt strictly with arms of the militia.
So in the freedmen’s bureau act Congress was referring to arms of the militia for the security of person and estate? But that would mean a militiaman could use such arms to defend himself and his estate, and if self defense and defense of one’s estate are part and parcel of militia activity, I don’t see how you can say self defense is not protected by 2A, or the 14th amendment(given Congress’ words in the Freedmen’s bureau legislation)
Jim Said: Remember, it was always said woman had no right to bear arms, but they could privately purchase, use and keep them. (hint, hint)
Here’s a hint Jim, what does “them” refer to in your own sentence?
Mike Hansberry: “So I take there will be no actual quote from Fisk?”
It can be found in the Heller post on here.
Mike Hansberry: “You say ‘Being able to avoid standing armies by allowing the people themselves to form armed militias was a very dear right!’ but surely the RKBA meant more than that, Congress referred to the RKBA as relating to security of person and estate, not merely a right to serve the militia in order to defend the state against federal encroachment.”
I never read anything in congressional debates that could be assumed to mean the RKBA means security of person. Security of person has nothing to do with ownership or use of anything!
Mike Hansberry: “Some how I am thinking that Congress and Fisk were not overly concerned with the right of the freedmen to defend KY against the federal government, instead they were concerned with the right of the freedmen to protect themselves against abuse of their persons and property at the local level.”
They must have been concerned because they said by law you can’t do what KY had done. Same thing in Mississippi… when Johnson gave the go ahead for the temporary govt to form armed militias they excluded blacks. This resulted in cries from Congress of Johnson violating blacks right to bear arms.
I’ve never come across anything where private arms ownership alone was viewed as a constitutional right. Whenever someone in congress brought up the matter it dealt strictly with arms of the militia. In 1863 congress confiscated arms from citizens of Boston, but did not of those who were members of the militia because they did have a constitutional right to bear them as part of the military power of the state.
Remember, it was always said woman had no right to bear arms, but they could privately purchase, use and keep them. (hint, hint)
In Reply to JimAZtec:
So I take there will be no actual quote from Fisk?
I see you have given up on your “not in the home” argument.
You say “Being able to avoid standing armies by allowing the people themselves to form armed militias was a very dear right!” but surely the RKBA meant more than that, Congress referred to the RKBA as relating to security of person and estate, not merely a right to serve the militia in order to defend the state against federal encroachment.
Some how I am thinking that Congress and Fisk were not overly concerned with the right of the freedmen to defend KY against the federal government, instead they were concerned with the right of the freedmen to protect themselves against abuse of their persons and property at the local level. And they were willing to use the power of the federal government to enforce such laws for the security of person and estate when the state refused to do so.
The whole people of the United States did impose limitations on the powers of the several states. These limitations are in U.S. Constitution Article I Section 10. One such limitation is the limitation against nobility. Nobility is any class of persons not subject to legal prosecution for their felonies. The so-called equal protection clause of the 14th Amendatory Article merely further declares this mainbody NO NOBILITY limitation. Also don’t forget that we hold dual citizenship: we are citizens of the United States and of the state in which we reside. We may seek the protection of either or both. depending on the facts.
MIke Hansberry: “I am curious what part of Fisk’s letter you rely on.”
The part where he tells the Commissioner of the Freedmen’s Bureau the constitutional right to bear arms was violated when black union militia members were disarmed of their govt issued weapons in KY!
MIke Hansberry: “It would seem that “every freeman” and “every citizen who is able to weild them” is certainly broader than the state militia, or those enrolled.”
There you go again trying to broaden a plain and simple statement to mean something entirely different. Again, the right of the people to keep and bear arms means the right of the people of a state to arm themselves as part of the military power of the state as security against a standing army or select national militia.
Being able to avoid standing armies by allowing the people themselves to form armed militias was a very dear right!
In Reply to JimAZtec:
I am curious what part of Fisk’s letter you rely on.
As to the quote from Page:
It would seem that “every freeman” and “every citizen who is able to weild them” is certainly broader than the state militia, or those enrolled. And “in the hands” must also imply in the home -unless you are willing to argue that citizens were forced to keep their hands, as well as their “arms”, at the town hall.
Anonymous said: “Well a lot of things could be said, but what that Congress actually said was this: ‘have full and equal benefits of laws and procedings for the security of person and estate, including the constitutional right of bearing arms ‘”
I think General Fisk’s letter to the Commissioner of the Freedmen’s Bureau that resulting in the “constitutional right to bear arms” says it all: The confiscation of arms of the militia in the service of the Union in KY! I know you prefer to revise history and say it was the confiscation of private arms belonging to private citizens at home!!
I think what Governor John Page of N.H. said of the 2A in 1841 sums it up real well: The General Government is authorized “to provide for organizing, arming and disciplining the militia;” — and it is very desirable that a new organization should be made. It is believed that we have one and a half million of soldiers enrolled in the militia throughout the Union; of this number we have about thirty thousand in this State, who are called out thrice in each year for inspection, drill and review. This mode of training so numerous a body of soldiers, is attended with a very great aggregate expense, of both time and money, unaccompanied in the estimation of very many of our citizens by an equivalent advantage. The “right of the people to keep and bear arms,” is a right dear to every freeman; arms should be in the hands of every citizen of the Republic, who is able to wield them, and it is the duty of Government to prescribe such rules of organization and discipline, as will give those arms the greatest possible efficiency.
In Reply to JimAZtec:
Well a lot of things could be said, but what that Congress actually said was this:
“have full and equal benefits of laws and procedings for the security of person and estate, including the constitutional right of bearing arms “
And, as in previous discussions on this topic, there are serveral state court cases which use the term “bear arms” in the very same manner.
State v. Shelby 90 Mo. 302, 2 S.W. 468 (1886) “The constitution secures to the citizen the right to bear arms in the defence of his home, person and property.”
State v. Foutch, 96 Tenn. (12 Pick.) 242, 34 S.W. 1 (1896) “Under our constitution every citizen of the State has the right to keep and bear arms for his proper defense, and the Legislature only has power by law to regulate the wearing of arms to prevent crime. Article I., Section 26; 3 Heis., 178. He has a right also to protect his own house and family, and to preserve peace and good order in his own house, and he has the right to eject therefrom those who are drunken, disorderly, and dangerous, and to use such force as is necessary for that purpose. If while engaged in this duty he is beset or menaced, he is entitled not only to the right of self-defense, but to use such force as may be necessary to protect himself and family and eject the intruder”
In Reply to Mike Hansberry:
The Freedmen’s Bureau Act has been thoroughly debunked as having anything to do with private arms at home. It was due to a response of Kentucky confiscating government issued arms of 25,000 returning black union soldiers. They could be said to have a constitutional right to bear arms by being members of the militia.
Good stuff, this topic deserves much more discussion than it gets.
I am not sure exactly where the line should be drawn, but agree with the general premise that the current level of federal reach/control into all sorts of individual rights was not intended by the 14th. The main purpose seems to be ensuring equal protection of the laws, and to forbid states from depriving any person of life, liberty, or property, without due process of law.
Tony P.
Regarding incorporation of the second Amendment, one can at least say that the same Congress that gave us the 14th also included (in legislation meant to protect the freedmen) the right to bear arms as among the laws for the security of person and estate for which blacks were to have equal access. This places the RKBA in far better position than the many of the other rights that have already been incorporated under the (substantive) due process clause of the 14th.
But I agree it will be very interesting to see how conservatives who tend to discount the due process clause, and liberals who tend to put great weight on the due process clause, will decide the case. Will conservatives pinch their noses and render a “due process” ruling, or will they go with a less defendable P&I route. Will liberals claim that the RKBA does not fall into the category of rights protected under the substantive due process theory despite the historical evidence, or will they grudgingly admit that the RKBA fits at least as well, if not better than other rights already incorporated?
From Freedmen’s Bureau Act of 1866: “…in consequence of any State or Local law, ordinance, police or other regulation, custom or prejudice, any of the civil rights belonging to white persons, including the right to make or enforce contract, to sue,…and to have full and equal benefits of laws and procedings for the security of person and estate, including the constitutional right of bearing arms , are refused or denied to negroes…it shall be the duty of the President of the United States… to extend protection…” (Equal Justice Under Law, Hymann and Wiecek, Harper&Row publishers, copyright 1982)
This is a killer argument. Incorporation supporters will run and hide from this.
In Reply to JimAZtec: You would expect more from SCOTUS than a lazy-ass assumption when it comes to altering the fabric of American law!
So scholars and the court has had no idea what the hell they are talking about when it comes to incorporation? Never bothered to read the complete record, just selective quotes out of context? Figures!
This is of the better incorporation analysis I have come across. The best part of this post other than Bingham saying the P&I’s are not of state citizens of a state, is Bingham’s explanation of the understanding of due process.
You know the conservatives on the court want to incorporate the 2A and will be interesting to which ruse they use to accomplish it.