From: fcrary@ucsu.Colorado.EDU (Frank Crary)
Subject: Re: ICLU Commission on the 2nd Amendment and Gun Control
Organization: University of Colorado, Boulder
Date: Wed, 2 Sep 1992 05:23:19 GMT

In article <1992Sep1.221813.1524@mtu.edu> cescript@mtu.edu (Charles Scripter) writes:
>> However people have said this with respect to the First Amendment: The
>> states can not ban public assembly, but they can require a permit
>> for large demonstrations. Further, states can legally declare a 
>> state of emergency, or courts can issue an order to disperse, and
>> temporarily restrict public assmebly.

>The 1st Amendment is probably the weakest of the bunch, starting
>with "Congress shall make no law...".

This doesn't really matter: Before the Fourteenth Amendment was
passed, _none_ of the Bill of Rights was applied to the states. The
fact that Congress is expressly mentioned in the First Amendment wasn't
considered relevant.

>> I think that, as a general rule, the states have a greater degree of
>> freedom under the Bill of Rights than does the federal government.

>Why should States have more power?  Those rights are guaranteed to
>the _individuals_.  The source of encroachment seems quite irrelevant.
>The BOR doesn't say "the federal govt shall not...", or "Congress shall
>make no law..." (other than the 1st).  They say "The right of the
>people...", without mentioning possible sources of infringments.

However, the Bill of Rights doesn't directly apply to the states. 
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.'

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.

>And, Article IV, Sect. 2:
>     "The Citizens of each State shall be entitled to all Privileges
>      and Immunities of Citizens in the several States."

I don't think this is the intended or accepted meaning of this clause.
"The several States" is a phrase used elsewhere in the Constitution,
and it makes more sense overall to read it as "any one of the several
States which make up the United States" not simply as "the United States."

>extends the BoR to all Citizens. (and the 14th extends it to all people).

No, the Fourteenth Amendment doesn't extend these rights to all people,
it just expands the definition of "citizen" to include almost everyone.

Honestly, interperting the Fourteenth Amendment is a real mess: The
old (pre-Civil War) structure, had a federal government which had only
a few, specified powers and little freedom to deal with unexpected
situations. As such, the federal Bill of Rights contains alot of 
absolute prohibitions. This doesn't create much of a problem, since
the federal government wasn't intended to resolve every problem
that comes up or regulate on every topic.

There are, however, limits on all rights (e.g. when they interfere
with the rights of others.) And governments have to deal with this
at some point. Under the pre-Civil War framework of our government, 
the States did this: They were, generally, empowered to do anything
not forbiden by their state constitution, and had state bills of rights
that were less absolute than the federal one. This allowed the
states to handle such issues as disturbing the peace laws (E.g.
handle all pressing problems that the federal government had no
authority to deal with.)

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.

This means applying the provisions of the federal Bill of Rights, not
not necessarily the absolute phrasing.

>> I think it is fairly clear that the states can pass _some_ laws on
>> the subject (though the wisdom of such laws is another matter), but they
>> cannot pass restrictive or prohibitive laws. Where exactly the line should
>> be drawn is _very_ unclear.

>When do they "intrude"?  That seems like a reasonable line to me.
>(is it intrusive to ask for someone's home address? ;-)

That is, pretty much, the spirit of the Fourteenth Amendment: The
states can't "intrude" on the rights mentioned in the Bill of Rights,
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.

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.) The 
Fourteenth Amendment raises these issues, without offering any good
(objective) solution.

                                                 Frank Crary
                                                 CU Boulder

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