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View Full Version : Can someone please explain the 14th amendment?


evan69
04-24-2009, 7:30 PM
... and how it can be used for gun rights? I have never really seen a STRONG usage for it before...

I'm obviously missing something.

Hopi
04-24-2009, 7:34 PM
Here ya go... (http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitu tion)

Matt C
04-24-2009, 7:40 PM
During the reconstruction era certain elements of Congress realized the Civil Rights Act of 1866 could be challenged on constitutional grounds, so 14th came about as a way to to incorporate the provisions of the Act as an amendment to the Constitution. Eventually it was ruled (in a dubious decision) that the 14th could be used to prevent the states from taking any rights. Truthfully it was never intended to grant the sort of sweeping federal power we see exercised under the 14th today, but in this case at least the power is being used for good.

evan69
04-24-2009, 8:39 PM
and how it can be used for gun rights?

I was talking mostly about this...

AngelDecoys
04-24-2009, 8:57 PM
I was talking mostly about this...

Its important when understanding Federalism. Initially the Bill of Rights was a restriction on federal power, not state power. As mentioned above the 14th Amendment was passed after the Civil War to limit states on how they could restrict civil liberties. Since then, several amendments have been incorporated through the 14th, but not all amendments. The second being one of them.

Until Nordyke, CA (which has no 2nd in its state constitution) could have banned everything and it would have been legal. Now, (due to Nordyke) the 9th Circuit must honor the 2nd Amendment as it now applies to states (in the 9th circuit).

Here's a thread on incorporation (http://www.calguns.net/calgunforum/showthread.php?t=138390&highlight=incorporation&nojs=1#usercptools).

DDT
04-24-2009, 9:12 PM
and how it can be used for gun rights?

I was talking mostly about this...


(edited for clarity)
Initially all the rights protected by the Constitution were only protected from infringement by the federal government.


Eventually it was ruled (in a dubious decision) that the 14th could be used to prevent the states from taking any rights.

The 14th amendment, as BWO says above, provides citizens of the US with protection of certain rights from infringement by any level of government.

This wasn't automatically applied to all rights at one time. Through a number of court cases individual rights have had this extension applied to the protections.

So, It was decided in a court case (I am not a lawyer and cannot quote the case law) that the right to free speech could not be infringed by states etc. in addition to the existing protection from Federal interference. It was the previous holding of the courts that the RKBA was only protected from FEDERAL infringement by the second amendment. (I think the case law is Cruickshank and Presser.) The "big deal" about Nordyke is that it extends this protection to the rights spelled out in the Second Amendment. This is called incorporation.

There are three ways that this protection can be incorporated. Directly, through the Privileges & Immunities Clause, or through the Due Process Clause (known as Selective incorporation.)

The opinion in Nordyke includes what is essentially an excellent primer in the three types of incorporation.

There seems to be an important difference between the three that escapes me. Many other civil rights organizations have been trying to get P&I incorporation instead of Selective incorporation and I don't really understand the implications of this change in method of incorporation.

It would be great if you took the time to read the full text of the 14th amendment and the Nordyke Opinion (at least the section on incorporation.)

tcrpe
04-25-2009, 6:04 AM
Initially all the rights protected by the Constitution only protected those rights from infringement by the federal government.

The 14th amendment . . . (p)rovides citizens of the US with protection of certain rights from infringement by any level of government.

Simply and well stated.

Which is how the US Constitution should be used.

jamesob
04-25-2009, 10:48 AM
the 14th is somehow forgotten when it comes to gun rights. the 14th has a direct link to all other amendments and laws especially the 2nd since that one is the most violated.