From: cescript@mtu.edu (Charles Scripter)
Subject: Re: ICLU Commission on the 2nd Amendment and Gun Control (Long!)
Organization: Michigan Technological University
Date: Thu, 3 Sep 1992 02:19:32 GMT

In article <1992Sep2.052319.23326@ucsu.Colorado.EDU>, fcrary@ucsu.Colorado.EDU
(Frank Crary) writes:

> In article <1992Sep1.221813.1524@mtu.edu> cescript@mtu.edu
> (Charles Scripter) writes:
> 
> >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.

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.  Lacking a counter-
example (a State passing a law, in conflict with the BoR), it would
be interesting to see if the F.F. made any quotes to this effect.

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

Correct.  The Bill of Rights applies directly to the *people*!

> 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.

"... No State shall make or enforce any law which shall abridge
                    ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
the privileges or immunities of citizens of the United States;...
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
...nor deny any person within its jurisdiction the equal protection
                                                   ^^^^^^^^^^^^^^^^
of the laws."
^^^^^^^^^^^
> 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..."?

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!?

> >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,

Another point to research...  What does this phrase mean, if it doesn't
extend those same protections to all Citizens of the United States?

Article I, secs 2, 8.  Article II, sec 2.  Article V & VI.  These
all contain references to the "several states" (I'll not list them,
to save space).

> 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."
  ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
Incorrect.  It is always used as ALL, or EACH AND EVERY, of the several
States, which make up the United States.  When it becomes *ALL* of the
States collectively, then it is indeed equivalent to the United States.

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

"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 ....... deny any person within its jurisdiction
              ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
the equal protection of the laws.
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^

   It's also quite possible (in fact, very likely) that *visitors*
(non-Citizens) have had this jurisdiction (an thus protection)
extended to them as well.

> 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."

> 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.

> This means applying the provisions of the federal Bill of Rights, not

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.  They were enumerated intentionally, with prohibitions
against encroachment.  In addition:

"The enumeration in the Constitution of certain rights shall not
be construed to deny or disparage others retained by the people."
                                  ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
> That is, pretty much, the spirit of the Fourteenth Amendment: The
> states can't "intrude" on the rights mentioned in the Bill of Rights,

Nor can the Feds.

> 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.

> 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.

-- 
Charles Scripter   *   cescript@phy.mtu.edu
Dept of Physics, Michigan Technological University, Houghton, MI 49931
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