From: fcrary@ucsu.Colorado.EDU (Frank Crary)
Subject: Re: ICLU Commission on the 2nd Amendment and Gun Control (Long!)
Organization: University of Colorado, Boulder
Date: Thu, 3 Sep 1992 16:42:14 GMT

In article <1992Sep3.021932.26028@mtu.edu> cescript@mtu.edu (Charles Scripter) writes:
>> This doesn't really matter: Before the Fourteenth Amendment was
>> passed, _none_ of the Bill of Rights was applied to the states.

>Do you have any references to support this?  I claim that Article 4,
>section 2, extends these Rights to all Citizens, and the States
>may not pass any laws abridging those Rights.

US v. Cruikshank and Presser v. Illionis state specifically that no
part of the Bill of Rights applies to the states.

From Ducat and Chase's _Constitutional_Interpertation_ (standard
modern case book used in introductory courses), refers to Barron v. 
The Mayor and City Council of Baltimore 32 US (7 Pet.) 243, 1833
(apparently the first Supreme Court cases considering the Bill of
Rights and local governments). Here Chief Justice Marshall apparently
(I'm trusting the case book, since I haven't read the ruling) that
"it was clear from the wording and intent in passage of the
amendments that their provisions were directed against infringement by
the national government only. For reliance on the protection of basic
liberties at the state level, one had to look to the provisions of the
individual state constitutions." 

>> The Fourteenth Amendment applies something along the lines of the
>> Bill of Rights to the states, but it doesn't apply every provision
>> with as absolute a force, nor are all parts of the Bill of Rights
>> equally applied.

>But if that is true, then I am not receiving the "equal protection"
>guaranteed under the 14th.  I am guaranteed all immunities, and
>privileges as a Citizen of the United States.

"Equal protection" in the Fourteenth Amendment refers to the 
equality of all citizens before the law (e.g. all citizens are
entitled to an equal set of "privileges and immunities."

>> For example, the Fifth Amendment provision that "No person shall be
>> held to answer for a capital, or otherwise infamous crime, unless on a
>> presentment or indictment of a Grand Jury..." Clearly this applies
>> (and was intended to apply) only to the federal government. The local
>> police don't need a grand jury to arrest a mugger.

>Q: Is mugging a  "...capital, or otherwise infamous crime..."?

Yes, but that doesn't matter: A state can make a first degree murder
arrest without a Grand Jury indictment (e.g. of a capitol crime.)

>You may arrest this person, but you _must_ present the case to
>the Grand Jury, or you may not hold him.
>Are you actually claiming that local police should be allowed to
>hold someone indefinitely, without a indictment or trial!?

I think you are missing the menaing of the Grand Jury clause: The
federal government _must_ have a Grand Jury indictment _before_
it can arrest anyone of a "capitol or otherwise infamous crime.

The states, however, can make arrests at any time. Shortly thereafter
they have to present the accused to a judge and have him rule in 
support of their arrest (and set bail, etc...) But this is assured
by the writ of haebus corpus and has nothing to do with a Grand Jury.

>> the States did this: They were, generally, empowered to do anything
>> not forbiden by their state constitution, and had state bills of rights

>And not forbidden by the US Constitution:

>"The powers not delegated to the United States by the Constitution,
>nor prohibited by it to the States, are reserved to the States
>^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
>respectively, or to the people."

However, the list of things forbidden was fairly short (Article One,
Section Ten) and included things that the federal government had sole
authority to do (issue paper money, make treaties) or things that
noone, under any circumstances, should ever do (pass ex post facto
laws, etc...) It didn't include things like protections of 
individual rights, since _someone_ has to legislate over conflicts
between individual rights.

>> Unfortunately, the Fourteenth Amendment forces states to respect the
>> "privileges and immunities of a citizen of the United States" without
>> clearly defining this phrase and (worse) while still expecting them
>> to handle conflicts between individual's rights.

>I think the BoR clearly spells out some of those immunities.

Exactly and directly? So that a state government may never pass 
_any_ law "abridging the freedom of speach"? This would mean all
disturbing the peace and noise ordinances are illegal. It is usually
understood that the Bill of Rights spells out the "privilges and
immunities" of the Fourteenth Amendment, but that the states have
_some_ freedom to regulate these rights (in cases of conflict with the
rights of other citizens.)

>It's not the "federal Bill of Rights", it's the "Bill of Rights".
>These Rights are pre-existing, and do not derive from the
>Constitution.  Rights cannot be granted, and do not come from
>governments.

When I say "federal Bill of Rights", I'm refering to the rights
protected, in the federal Constitution, from infringement by the
federal government.

>> unless the excersice of the right is a "clear and present danger" to
>> the community or the state has some other "compelling interest." And
>> it can't ban any such right.

>"No person shall be held to answer for a capital, or otherwise
>infamous, crime, ..... except in cases .... public danger; ..."

>It's already spelled out in the 5th.

You've left out alot of words (and punctuation) there:

"No person shall be held to answer for a capital, or otherwise
infamous, crime, unless on a presentmant or indictment of a Grand
Jury, except in cases arising in the land or nalal forces, or 
in the Militia, when in actual service in times of War or public 
danger;"

"excpet in cases... public danger" (at least to my reading)
refers only to the ossaccions on which the Militia falls under
martial law (e.g. the Uniform Code of Military Justice, these days.)
It isn't a general authorization for the government to infringe on
the Fifth Amendment, when public safety demands it. The framers
certainly didn't trust the federal governemnt to have that kind
of power.

>> The real trouble (as you suggest, in respect to addresses) is what 
>> "intrude","clear and present danger" and "compelling interest" (the
>> last two being catch phrases the Court is fond of using.)

>I'm not always terribly fond of the high Court's views.

Well, we definitely agree on that...

                                                    Frank Crary
                                                    CU Boulder