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View Full Version : Why the 14th is like the 2nd (and why it matters)


hoffmang
03-29-2007, 10:00 PM
With Parker heading toward SCOTUS review, the next major issue for we Californians will be the 14th Amendment. The reason is that Parker only answers the question of whether the 2nd amendment is an individual right that restricts the Federal government. However, many scholars and lawyers believe that the 2nd amendment is made applicable to the states by the 14th Amendment. However there has been some debate and I wanted to spend a little time elucidating that here as I think the parallels on the debates about how the 2nd amendment should be interpreted.

The relevant section of the 14th reads:

Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

Two major things have happened over the last 140 years since the passage of the 14th. First some of the first 8 amendments in the Bill of Rights have been found to be binding on the states, but that has often taken until the last 40 years. Second, the main reason that has been the case is that the first section has been basically mooted by the Supreme Court.

Now, what is changing is that scholarly research has started to find that there was little confusion about what the intent of the sponsors - primarily John Bingham (http://en.wikipedia.org/wiki/John_Bingham) who has been called the Madison of the 14th - to incorporate the first 8 amendments upon the states.

The beginning of this understanding was Justice Black's dissent (http://www.guncite.com/court/fed/sc/332us68.html) in Adamson v. California in 1950. What Black made clear was that the 14th amendment was passed partially to overturn a SCOTUS decision entitled Barron v. Baltimore which was the Kelo of its day. It held that the states were free to take property and were not bound by the 5th amendment protection from takings of property.

More recent scholarship is underway that expands on Black's work and counters many of the anti-incorporationists. I'd suggest reading this scholarly paper (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=963487&high=%20Bryan%20Wildenthal) from Bryan Wildenthal. Note that there are a few additional papers from him, but this provides a pretty good overview.

Now a couple of other things.

Xeno: Here is some evidence from the guys who wrote it that your construction of the Due Process clause as allowing a state to abridge the rights of a citizen by passing a law in contradiction of the Bill of Rights because the collective of the people had their rights removed by "Due Process of law" is not what the 14th allows.

Quoting Black quoting Mr. Garfield:

Formal statements subsequent to adoption of the Amendment by the congressional leaders who particiated in the drafting and enactment of it are significant. In 1871 a bill was before the House which contemplated enforcement of the Fourteenth Amendment. Mr. Garfield, who had participated in the debates on the Fourteenth Amendment in 1866 said:

...

"The next clause of the section under debate declares: 'Nor shall any state deprive any person of life, liberty, or property, without due process of law.'

"This is copied from the fifth article of amendments, with this difference: as it stood in the fifth article it operated only as a restraint upon Congress, while here it is a direct restraint upon the governments of the States. The addition is very valuable. It realizes the full force and effect of the clause in Magna Charta, from which it was borrowed; and there is now no power in either the State or the national Government to deprive any person of those great fundamental rights on which all true freedom rests, the rights of life, liberty, and property, except by due process of law; that is, by an impartial trial according to the laws of the land...."

That looks to me to strongly support the argument that "due process of law" is limited to an individual losing his rights because he is judged to be a felon in a fair and impartial trial. Having SB-23 pass is not "due process of law."

To preempt one other line of argument, let me turn to the "dual citizenship" issue. Before passage of the 14th amendment in 1868, the people were citizens of the state they lived in and the United States. The main reason that the 14th refers to the privileges and immunities of a citizen of the United States is precisely because one's US Citizenship prior to the passage of the 14th guaranteed that the US Government could not infringe the freedom of speech or the right to bear arms, but state citizenship was only protected by your state constitution. The 14th used the legal term of art of the rights that couldn't be abridged by the Federal government to apply those rights to the state governments as well.

In most cases that lead to what Madison had hoped for of "double protection." Sadly, here in California our constitution doesn't have right to arms and this is why I'm spending so much time making sure I understand the 14th. :D

<Begin Debate>

-Gene

kenc9
03-29-2007, 10:34 PM
The adoption of the fourteenth amendment changed nothing as far as local government is concerned, and the States surrendered nothing to the national government in regards to rights retained since the adoption of the U.S. Constitution. Soon after its adoption of the fourteenth amendment, the framers of the fourteenth established legislative precedent over its meaning and application, something the Supreme Court and the ACLU must ignore at all costs in order for their bogus incorporation theory to be remotely seen has having any semblance of validity.

Both the House and Senate established legislative precedent for fourteenth amendment construction, which in turn the court in Slaughterhouse would later confirm. We can thank both Susan B. Anthony and Mrs. Victoria C. Woodhull for the precedent established by the very framers of the fourteenth amendment themselves, including John Bingham.

Responding to Mrs. Woodhull’s memorial, chairman of the House Judiciary Committee, John A. Bingham, released the following report:

The clause of the fourteenth amendment, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," does not, in the opinion of the committee, 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. The fourteenth amendment, it is believed, did not add to the privileges or immunities before mentioned, but was deemed necessary for the enforcement as an express limitation upon the powers of the States. 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. [41st Cong., 3d sess., H. Rept.22.]
The Senate judiciary unanimously adopted the same opinion as the House judiciary in response to the memorial by Susan B. Anthony.
Both the House and Senate judiciary shoots down the silliness that has prevailed for too long under phony fourteenth amendment jurisprudence that claims the amendment magically “incorporates” the establishment clause against individual States. The privileges and immunities only embrace article 4, section 2 as it existed in the Constitution, which of course never embraced the first eight amendments.

If the fourteenth amendment can be said to incorporate anything, it would in fact be article four, section two, and the Fifth Amendment's Due Process – which should come as no surprise to anyone because of the identical language.

Note:The Fourteenth Amendment to the United States Constitution (Amendment XIV) is one of the post-Civil War amendments, intended to secure rights for former slaves. It includes the Due Process and Equal Protection Clauses among others. It was proposed on June 13, 1866, and ratified on July 9, 1868.[1] It is now regarded as one of the most important components of the Constitution.

The amendment provides a broad definition of national citizenship, overturning the Dred Scott case, which excluded African Americans. It requires the states to provide equal protection under the law to all persons (not only to citizens) within their jurisdictions, and was used in the mid-20th century to dismantle legal segregation, as in Brown v. Board of Education. Its Due Process Clause has driven many important and controversial cases around privacy rights, abortion (see Roe v. Wade), and other issues.

The other two post-Civil War amendments are the Thirteenth Amendment (banning slavery) and the Fifteenth Amendment (banning race-based voting qualifications). According to Supreme Court Justice Noah Swayne, "Fairly construed, these amendments may be said to rise to the dignity of a new Magna Carta."



-ken

Matt C
03-29-2007, 10:38 PM
If the fourteenth amendment can be said to incorporate anything

And that is exactly how SCOTUS has ruled and the reason we still pay for the education of illegal immigrants in this state. The 14th amendment has done more to hurt states rights than anything else in US history other than the extreme interpretation of the commerce clause by SCOTUS and 20th century Congress.

midnitereaper
03-29-2007, 10:39 PM
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Isn't something written in the COTUS or BoR that the laws of the states need to be equal with each other? If so then how is CA getting away with an AW ban when surrounded by pro AW states?

hoffmang
03-29-2007, 10:54 PM
Ken,

You're parroting the Federalist blog who has a strong bias against the conclusion that the 14th Amendment was meant to extend the bill of rights to the states. See: http://federalistblog.us/2007/02/supreme_ignorance_aclus_empty_establishment_claims .html

The problem with his argument is that he's misreading Bingham. When Bingham says "but was deemed necessary for the enforcement as an express limitation upon the powers of the States" he's saying that the 14th didn't expand rights beyond what was there in the Constitution up to the 13th amendment. Bingham is stating that that change brought about by the 14th was necessary as "t had been judicially determined [before the passage of the 14th] that the first eight amendments of the Constitution were not limitations on the power of the States..." Incorporating the Bill of Rights against the states is the reason why Congress passed Section 1 of the 14th amendment.

As I said above and you didn't refute - Section 1 of the 14th was in response to [I]Barron v. Baltimore (not Dred Scott - that's the 13th) that held that the Bill of Rights did not bind the states. If you don't think that section 1 means that that case was overturned then you need to have a theory of what section 1 does mean because making something a nullity is only done by those who don't like what the text of the constitution says - kind of like the Brady Bunch and that pesky line about the right of the people to keep and bear arms shall not be infringed.

-Gene

hoffmang
03-29-2007, 10:56 PM
And that is exactly how SCOTUS has ruled and the reason we still pay for the education of illegal immigrants in this state. The 14th amendment has done more to hurt states rights than anything else in US history other than the extreme interpretation of the commerce clause by SCOTUS and 20th century Congress.

I disagree. The commerce clause and FDR have done far more to hurt states rights.

However, states rights are not always the bastions of liberty that most supporters wish to claim they were. Just ask a black man in a noose in Alabama in 1890. States rights also got us most of our wack gun control laws as attempts to keep some disfavored minority from arms.

-Gene

otalps
03-30-2007, 12:03 AM
Seeing as how the 1st has been upheld to apply to the states as well as the feds when the language in the first specifically limits what Congress can't do, I can't see how they can possibly say the other amendments wouldn't also apply to the states.

I think a couple of things going for us with regards to the California Constitution regardless are:

Article I, Section I
All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

Article III Section I
The State of California is an inseparable part of the United States of America, and the United States Constitution is the supreme law of the land.

Article I Section XXXI
H) This section shall be self-executing. If any part or parts of this section are found to be in conflict with federal law or the United States Constitution, the section shall be implemented to the maximum extent that federal law and the United States Constitution permit. Any provision held invalid shall be severable from the remaining portions of this section.

The 14th amendment is also a part of the State Constitution in article I Section VI, thought I'm not sure how it could or could not help.

On the other hand the State's Constitution lists what a person needs to do in order to be found guilty of treason against the state and how a standing army can't be raised during peacetime and how the military is subserviant to civil power. I'm pretty confident that the state has no power whatsoever to raise an army or try anyone for treason as those are strictly the powers of the fed. As far as the state government's power over the military (meaning the National Guard) even that is severly restricted by the feds.

Seeing as how these provisions are in our state constitution and they still don't empower the government to do any of them because they are already restricted from doing so by the feds I don't see how the lack of an RKBA matters too much in the great scheme of things considering the State Constitution already says the US Constitution is the supreme law of the land and Any provision held invalid shall be severable from the remaining portions of this section.

hoffmang
03-30-2007, 12:10 AM
Further in support of the proposition that the 14th incorporated the Bill of Rights, I give you quotes from the speech of Senator Howard who introduced the 14th Amendment to the Senate:


“[T]he personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances . . . ; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments."
...

“The great object of the first section of this amendment,” [Howard summed up,] “is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.”

...

“[S]ection one is a restriction upon the States, and does not, of itself, confer any power upon Congress. The power which Congress has . . . is derived, not from that section, but from the fifth section, which gives it authority to pass laws . . . appropriate to the attainment of the great object of the amendment. I look upon the first section, taken in connection with the fifth, as very important. It will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States . . . .”


That sounds like the Bill of Rights being incorporated to me.

-Gene

hoffmang
03-30-2007, 12:14 AM
otalps,

I hadn't noticed that "the United States Constitution is the supreme law of the land." If Parker makes SCOTUS we may be able to file a case in CA asserting either the 14th Amendment or Article III Section I of the CA Constitution....

I'm going to have to do a bit of reading on that section in California jurisprudence.

-Gene

otalps
03-30-2007, 12:31 AM
If Parker makes SCOTUS the future here can only get brighter.

xenophobe
03-30-2007, 3:18 AM
With Parker heading toward SCOTUS review, the next major issue for we Californians will be the 14th Amendment. The reason is that Parker only answers the question of whether the 2nd amendment is an individual right that restricts the Federal government. However, many scholars and lawyers believe that the 2nd amendment is made applicable to the states by the 14th Amendment.

And I would completely agree that the 14th Amendment does bind the 2nd Amendment to the states. In many of the debates in forming the language of the 14th Amendment, the right to keep and bear arms was often mentioned as a right that it was designed to protect and was distinctly separate from the RKBA of recently freed slaves as addressed by original arguments in the Civil Rights Act before being combined with the 14th.


First some of the first 8 amendments in the Bill of Rights have been found to be binding on the states, but that has often taken until the last 40 years.

Yes, sadly the original intent of the Constitution, BOR and laws do not rely on intent of passage, but what the wording in law specifically states leading to many debates and arguments on what is actually protected or outlawed, and has given lawyers the supreme power in this land.



Now, what is changing is that scholarly research has started to find that there was little confusion about what the intent of the sponsors - primarily John Bingham (http://en.wikipedia.org/wiki/John_Bingham) who has been called the Madison of the 14th - to incorporate the first 8 amendments upon the states.

You're reading up on John Bingham now! Yes! Good job! His reasoning and comments are most important when realizing what the 14th Amendment was designed for.



Xeno: Here is some evidence from the guys who wrote it that your construction of the Due Process clause as allowing a state to abridge the rights of a citizen by passing a law in contradiction of the Bill of Rights because the collective of the people had their rights removed by "Due Process of law" is not what the 14th allows.


"The next clause of the section under debate declares: 'Nor shall any state deprive any person of life, liberty, or property, without due process of law.'
<snip>
...except by due process of law; that is, by an impartial trial according to the laws of the land...."

If only that language were included in the amendment, there would be so much less to debate, but good quote indeed. Was Mr. Garfield for or against adoption? That would weigh heavily as to whether his statements should be highly regarded or mostly discarded. I'm too tired to look into it now.



That looks to me to strongly support the argument that "due process of law" is limited to an individual losing his rights because he is judged to be a felon in a fair and impartial trial. Having SB-23 pass is not "due process of law."

And I would completely agree with you if the 14th Amendment were written with just the slightly different language of "without due process of law; subject to the jury of an impartial trial" or something similar added. Again, what I posted above, is that original intent isn't as important as what is actually stated unless a case should go to appeals or SCOTUS.

It's much like interpreting California gun law. It's not the intent, it's what the law actually disallows which leaves the possibility of something overlooked from occurring.



To preempt one other line of argument, let me turn to the "dual citizenship" issue. Before passage of the 14th amendment in 1868, the people were citizens of the state they lived in and the United States. The main reason that the 14th refers to the privileges and immunities of a citizen of the United States is precisely because one's US Citizenship prior to the passage of the 14th guaranteed that the US Government could not infringe the freedom of speech or the right to bear arms, but state citizenship was only protected by your state constitution. The 14th used the legal term of art of the rights that couldn't be abridged by the Federal government to apply those rights to the state governments as well.

And I would agree to that. Before the 14th, even though it is stated in the Supremacy Clause, State law was actually supreme law, not federal law, and the 14th Amendment provided umbrella coverage of protection to all state citizens in the Supreme Court where they did not receive it before... The 14th directly invested more power to the SCOTUS and to the government to protect rights of state citizens.



Sadly, here in California our constitution doesn't have right to arms and this is why I'm spending so much time making sure I understand the 14th. :D

lol. I find it incredibly amazing at how things that should be set in stone seem to change at the angle which you view it and no matter how far back you go, you can usually seem to find something contrary to any current interpretations.

xenophobe
03-30-2007, 3:30 AM
When Bingham says "but was deemed necessary for the enforcement as an express limitation upon the powers of the States" he's saying that the 14th didn't expand rights beyond what was there in the Constitution up to the 13th amendment. Bingham is stating that that change brought about by the 14th was necessary as "[i]t had been judicially determined [before the passage of the 14th] that the first eight amendments of the Constitution were not limitations on the power of the States..." Incorporating the Bill of Rights against the states is the reason why Congress passed Section 1 of the 14th amendment.

That's been consistently part of my argument of the whole BOR and 14thA in general, and agree that this is correct, but only because it was deemed necessary and it did pass. Otherwise, I would probably agree with the typical view that the 14th was not necessary and that the Supremacy Clause did indeed have binding authority of federal protection over the state infringement of state citizen's rights.

Up until then, the Constitution and BOR only limited what federal government could not do, and states were free to do as they wished.

And yes, that the Constitution and BOR addressed specific individual rights, but did not offer any real means of protection from those rights, as state citizens, from being infringed.

xenophobe
03-30-2007, 3:49 AM
The privileges and immunities only embrace article 4, section 2 as it existed in the Constitution, which of course never embraced the first eight amendments.

That's actually an interesting argument, however I do not agree with it and the debates surrounding the pre-Civil Rights Act inclusion in the 14th does not support it.


Note:The Fourteenth Amendment to the United States Constitution (Amendment XIV) is one of the post-Civil War amendments, intended to secure rights for former slaves. It includes the Due Process and Equal Protection Clauses among others. It was proposed on June 13, 1866, and ratified on July 9, 1868.[1] It is now regarded as one of the most important components of the Constitution.

Again, the 14th Amendment in initial form and debates was not a civil rights protection for freed slaves, in fact, in it's original form, had nothing to do with the civil rights of freed slaves. The Civil Rights Act, being introduced around the same time as what became the 14th Amendment, was debated shortly and was deemed to have nearly identical purpose and similar language to the 14th Amendment and was joined to include it before being dropped.