U.S. Constitution 101: applicability of protections to all citizens

This is a discussion on U.S. Constitution 101: applicability of protections to all citizens within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; Am looking for guidance on where to look, what to read, what historical documents, case law and precedents support the concept that the 2A and ...

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Thread: U.S. Constitution 101: applicability of protections to all citizens

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    VIP Member Array ccw9mm's Avatar
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    U.S. Constitution 101: applicability of protections to all citizens

    Am looking for guidance on where to look, what to read, what historical documents, case law and precedents support the concept that the 2A and other amendments specifically DO or DO NOT apply to citizens.

    Let's skip, for once, the debating of positions. In this thread, I am simply looking for the body of "evidence" that exists to justify why the 2A and other protections do or don't apply to everyone at all times.

    Let's create a list, so that others may begin their own exploration.
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    BAC
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    1) US Constitution - Look specifically for wording to indicate applicability of particular sections or statements to States (Article 1, Section 8, for example, specifically addresses the US legislature concerning duties/powers, whereas Article 1, Section 4 specifically addresses the States concerning voting for representatives and senators).

    2) Dred Scott v. Sanford, where "privileges and immunities" mentioned in the 14th Amendment are explained in detail by Chief Justice Taney.

    3) Presser v. Illinois, where Justice Woods describes the applicability of the Second Amendment to the States and to the US legislature.


    Those are off the top of my head; I'll have to do some refresher work before adding any more. Quite frankly, I think it would be equally prudent to find case examples that suppose the US Constitution's Bill of Rights applies to the States (I can't recall any at the moment).


    -B
    RIP, Jeff Dorr: 1964 - July 17, 2009. You will be missed.


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    BAC wrote: 2) "Dred Scott v. Sanford, where "privileges and immunities" mentioned in the 14th Amendment are explained in detail by Chief Justice Taney."

    Fourteenth is a post Civil War deal--"Fourteenth Amendment (1868): Defines a set of guarantees for United States citizenship; prohibits states from abridging citizens' privileges or immunities and rights to due process and the equal protection of the law; repeals the Three-fifths compromise; prohibits repudiation of the federal debt caused by the Civil War. (Full text)

    Dredd Scott was a pre-civil war ruling--- infamous Dred Scott v. Sandford case of 1857.

    I don't think Taney explained anything at all about the fourteenth in his decision as he predated it by 11 years and a Civil War.

    BAC wrote: "3) Presser v. Illinois, where Justice Woods describes the applicability of the Second Amendment to the States and to the US legislature"

    I just read this ruling. I saw discussion of what the right to assemble means, but no discussion of 2 A. The case was about the ability of IL to forbid private militias from forming, practicing, without authorization. The court ruled the state had the right to do so, that it was not abridging
    the right to assemble, which it (as The Constitution) links clearly to the purpose of petitioning the government.

    Maybe I missed something, but I think neither Dred Scott (Taney) nor Presser v IL have any bearing whatsoever on
    the O.P.'s question; " the body of "evidence" that exists to justify why the 2A and other protections do or don't apply to everyone at all times."

    The first case, Dred Scott, the ruling is utterly disreputable and repudiated by war and the subsequent 14th; the second case, Presser, seems to be entirely off the mark. Worse, Presser really gives IL (and the states) a great deal more leeway in abridging or controlling its citizens than our modern mind would find acceptable; especially in the narrow way it confines the meaning of the right to assemble--which it largely repudiates unless it is linked to the purpose of petitioning the government. I'm guessing that subsequent rulings and legislation have greatly broadened the meaning of the right to assemble without abridging a state's legitimate need to control private militias.

    (Under Presser a state could outlaw your meeting with cousins because doing so had nothing to do with petitioning the government.)

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    VIP Member Array Guns and more's Avatar
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    Haven't you heard? We don't use the Constitution in the US anymore.

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    We do

    Quote Originally Posted by Guns and more View Post
    Haven't you heard? We don't use the Constitution in the US anymore.
    But we do; we just don't all agree on what the dang thing actually means.

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    BAC
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    Quote Originally Posted by Hopyard View Post
    BAC wrote: 2) "Dred Scott v. Sanford, where "privileges and immunities" mentioned in the 14th Amendment are explained in detail by Chief Justice Taney."

    Fourteenth is a post Civil War deal--"Fourteenth Amendment (1868): Defines a set of guarantees for United States citizenship; prohibits states from abridging citizens' privileges or immunities and rights to due process and the equal protection of the law; repeals the Three-fifths compromise; prohibits repudiation of the federal debt caused by the Civil War. (Full text)

    Dredd Scott was a pre-civil war ruling--- infamous Dred Scott v. Sandford case of 1857.

    I don't think Taney explained anything at all about the fourteenth in his decision as he predated it by 11 years and a Civil War.
    The Dred Scott case predated the 14th Amendment, yes. The Dred Scott case, being very close in time to the ratification of the 14th Amendment, had a noted impact on the decision of legislatures to push for the 14th Amendment's acceptance. This is largely seen when the Chief Justice describes what "privileges and immunities" are, language subsequently seen in the 14th Amendment's first clause. It remains pertinent to this discussion.


    -B
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    The 10th admendment lists the restrictions on the people.

    Michael

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    Quote Originally Posted by BAC View Post
    The Dred Scott case predated the 14th Amendment, yes. The Dred Scott case, being very close in time to the ratification of the 14th Amendment, had a noted impact on the decision of legislatures to push for the 14th Amendment's acceptance. This is largely seen when the Chief Justice describes what "privileges and immunities" are, language subsequently seen in the 14th Amendment's first clause. It remains pertinent to this discussion.
    (Uh, the 14th amendment was a direct refutation of the Dred Scott decision, so it certainly pertains.... but the 14th amendment was passed a decade later and in the intervening time we fought a Civil War. Taney's decision declared blacks non-citizens, while the 14th amendment insured the citizenship of all native-born or naturalized Americans.)

    ---

    The 14th Amendment is where the Bill of Rights was explicitly applied to the states, so that's a good place to start because after that the 2A is guaranteed against the states as well as Congress. Then work backwards... but you won't find much directly applicable to 2A because the idea of the government prohibited firearms to the populace was unheard of. So you'll have to look for more generalized histories, particularly of the Bill of Rights, or cases that generally apply to the relationship between the Constitution and the states.

    I suggest The American Constitution by Kelly, Harbison, and Belz -- a history of Constitutional interpretation.

    I'd also suggest, though I suppose it's a bit on the obvious side, the Federalist papers. Though not specifically related to 2A, you'll find an absolute mine of Constitutional interpretation from Alexander Hamilton, John Jay, and James Madison, so you get a pretty broad variety of Constitutionalists.
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    Quote Originally Posted by biasedbulldog View Post
    The 14th Amendment is where the Bill of Rights was explicitly applied to the states, so that's a good place to start because after that the 2A is guaranteed against the states as well as Congress.
    This is absolutely false.

    Unless I missed where the Bill of Rights was mentioned in the Fourteenth Amendment.

    This is drifting of the OP's intent of the thread but I cannot allow misinformation to stand.

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    BAC
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    NOT a debate: a clarification

    Quote Originally Posted by biasedbulldog View Post
    (Uh, the 14th amendment was a direct refutation of the Dred Scott decision, so it certainly pertains.... but the 14th amendment was passed a decade later and in the intervening time we fought a Civil War. Taney's decision declared blacks non-citizens, while the 14th amendment insured the citizenship of all native-born or naturalized Americans.)
    Okay, let's try a different approach.

    Dred Scott was a bad case. We agree on this, right? In it, the "privileges and immunities" the chief justice is claiming to prohibit to blacks is described very clearly. We agree on this, right? The 14th Amendment is a direct refutation of the Dred Scott case, especially given the language of the first clause in the 14th Amendment. We agree on this, right?

    Given that the above is true, we agree that the 14th Amendment directly refutes the claim in Dred Scott that the "privileges and immunities" described do not apply to blacks (meaning, the 14th Amendment states they apply to everyone). We agree on this, right?

    Therefore, as it is the only description given of "privileges and immunities", we assume the privileges and immunities guaranteed by the 14th Amendment are those described in the Dred Scott case.

    Quote Originally Posted by per the Dred Scott decision
    For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police [60 U.S. 393, 417] regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.
    Please note: this is not a debate on positions. I am clarifying why I presented the Dred Scott decision as material important to determining the applicability of the Bill of Rights of the United States' Constitution to the States themselves. If any part of what I've stated is unclear, please PM me and I'll help clear it up.


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    Okay, explicitly was inaccurate.

    From Section 1 of the 14th: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

    But you're right, we're OT.
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    Heller?
    Abort the Obamanation not the Constitution

    Those who would, deny, require permit, license, certification, or authorization for me to bear arms are as vile, dangerous & evil as those who would molest, abuse, assault, rape or murder my family

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    BAC quoting Taney posted, "to hold public meetings upon political affairs, and to keep and carry arms wherever they went."

    What I think you are saying is that Dred Scott enumerated the rights of citizens to include "carry arms wherever they went."

    If that is the point you are trying to make, then yes, Taney clearly stated that it was a right of white citizens to carry arms wherever they went. And it is implicit that this means 2A applies to white citizens wherever they are.

    Up to that point I'm following your reasoning. I am lost as to how the 14th either enhances or diminishes that statement of 2A's applicability beyond the clarity that 2A applies to all citizens without regard to race.

    But, then, you cited Presser. And that appeared to say that the state could infringe 2 A because carrying as part of a private militia was unlawful without state authorization.

    Interesting stuff to contemplate.

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    Should have remembered this earlier:

    Dr. Halbrook's The Founders' Second Amendment: Origins of the Right to Bear Arms. See it here.

    Can't vouch for it at all, but it will certainly be a pro-2A interpretation by a respected Constitutional law attorney and professor.

    ---

    Hopyard, I think he means that the 14th Amendment didn't alter the rights declared by Taney -- it simply extends them to all natural-born and naturalized Americans -- meaning that his definitions of citizenship aren't altered, so reading Dred Scott would be helpful because it sets the foundation for what the 14th Amendment was actually protecting.
    "War necessarily brings with it some virtues, and great and heroic virtues too. What horrid creatures we men are, that we cannot be virtuous without murdering one another?" -John Adams

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    BAC
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    Heller, no. Heller does not address the applicability of the Bill of Rights to the individual States. Heller specifically addresses federal law in conflict with higher federal law.

    Quote Originally Posted by biasedbulldog View Post
    Hopyard, I think he means that the 14th Amendment didn't alter the rights declared by Taney -- it simply extends them to all natural-born and naturalized Americans -- meaning that his definitions of citizenship aren't altered, so reading Dred Scott would be helpful because it sets the foundation for what the 14th Amendment was actually protecting.
    Bingo.


    -B
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