Posted on 02/22/2007 9:43:28 PM PST by AZRepublican
[This info will be invaluable against the ACLU]
The long held notion that the fourteenth amendment incorporates the first eight amendments either, totally or selectively, is without merit or factual foundation, but also in direct defiance of the legislative precedent left by those who had framed and adopted it. Whatever ambiguity Bingham left behind in 1866 in regards to the intent and meaning of the fourteenth’s privileges and immunities phrase, he officially pronounced its proper construction in January of 1871 in a House report released by the judiciary committee he chaired.
(Excerpt) Read more at federalistblog.us ...
Looks interesting, thanks BUMP
Bump to read tomorrow.
The Second Amendment should be incorperated.
>The Second Amendment should be incorperated.
Would had been nice if the 2nd was incorporated as the fifth was. Every state constitution does have a 2nd amendment of some sorts. Would be very difficult if not impossible to show article 4, section 2 P&I's recognized any of the eight amendments. It never was known to do such a thing. Worst of all, Bingham recognized the holding in Barron v. Baltimore :(
The constitution is the supreme law of the land. The 2d is part of the constitution and is also the law of the land. It does not need to be incorporated.
>The 2d is part of the constitution and is also the law of the land.
I reckon if you want to go that far, then every bill which shall have passed both the state House and Senate shall, before it become a law, be presented to the President of the United States. :-)
Not really.
The tenth amendment clearly enumerates which laws are up to the states or the people. The 2d is not up for legislation by the states and is not to be infringed by anyone short of a constitutional amendment.
In short the states cannot overide the supreme law of the land with any regulations or laws.
For example, early SCOTUS rulings did not apply the 5th Amendment to state prosecutions where confessions were literally beaten out of suspects. They said basically that the Bill of Rights only acted as a limitation on the Federal government. In many of those cases the trial record actually contained admissions by police officers that they obtained the confessions in such manners. If the defendant lost his state appeals, it was pretty much over.
The doctrine of incorporation after the 14th Amendment has allowed the federal courts to apply the Bill of Rights to state laws. The upside is that one day SCOTUS may incorporate the 2nd Amendment. Then I, as a lawyer can start representing citizens against cities like Chicago and New York for denying them their Constitutional rights.
How does the tenth amendment get ingored?
That along with the supremacy clause should not need another amendment to apply it.
Paul Madison has an interesting new blog post on the 2nd. He says the 2nd confers no right, only recognizes a existing retained right. You know, that is the most sensible explanation I have ever heard. Its a good read.
>How can something be constitutional one day and not another
>day without going through the amendment process?
Clueless liberal activists judges? Seriously, I think the court backs itself in a dark corner with its insistence to recognize obvious bad precedent....you know, junk in, junk out...
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