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Title: Ninth Circuit: Right to Bear Arms Includes Right to Acquire Arms
Source:
Breitbart
URL Source: http://www.breitbart.com/california ... s-includes-right-acquire-arms/
Published: May 16, 2016
Author: Awr Hawkins
Post Date: 2016-05-16 22:55:10 by cranky
Keywords: None
Views: 59325
Comments: 164
Teixeira revolves around Alameda County zoning rules for incorporated areas that not only require a gun store owner to obtain requisite local, state, and federal permits for the business, but also make sure “the proposed location of the business is not within five hundred feet of a ‘[r]esidentially zoned district; elementary, middle or high school; pre-school or day care center; other firearms sales business; or liquor stores or establishments in which liquor is served.'” Teixeira revolves around Alameda County zoning rules for incorporated areas that not only require a gun store owner to obtain requisite local, state, and federal permits for the business, but also make sure “the proposed location of the business is not within five hundred feet of a ‘[r]esidentially zoned district; elementary, middle or high school; pre-school or day care center; other firearms sales business; or liquor stores or establishments in which liquor is served.'” After being denied the requisite county permits to open “Valley Guns and Ammo” — due to complaints of persons within 500 feet of the proposed business — Plaintiff John Teixeira contended that the “500-foot rule” was tantamount to a backdoor ban on gun stores. And while there was some question over the exact distance between the proposed store and some of those who complained, the issue for Teixeira turned on the right of due process and other rights protected by the Second Amendment. Teixeira challenged Alameda County’s decision in the United States District Court for the Northern District of California and lost. He then appealed the case to the 9th Circuit Court, where the ruling has remanded the case to the lower court. In summarizing the latest ruling, the court pointed to the Ninth Circuit’s position that Alameda County “had offered nothing to undermine the panel’s conclusion that the right to purchase and to sell firearms is part and parcel of the historically recognized right to keep and to bear arms.” Writing in the Majority Opinion, 9th Circuit Judge Diarmuid O’Scannlain emphasized, “Our forefathers recognized that the prohibition of commerce in firearms worked to undermine the right to keep and to bear arms.” O’Scannlain also pointed to the recognition of the importance of buying and selling firearms from the time of the English Bill of Rights (1689) to founding of the United States. Regarding the era in which the United States was founded, O’Scannlain explained that the states which ratified that Second Amendment did so believing they were not simply protecting a right to keep and bear arms but to buy and sell them as well. He wrote: The historical record indicates that Americans continued to believe that such right included the freedom to purchase and to sell weapons. In 1793, Thomas Jefferson noted that “[o]ur citizens have always been free to make, vend, and export arms. It is the constant occupation and livelihood of some of them.”
The U.S. Court of Appeals for the Ninth Circuit ruled Monday that the right to bear arms has historically included the right to acquire them, and remanded the case of Teixeira v. County of Alameda to the lower court.
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#1. To: cranky (#0)
Appointed by Ronald Reagan Alex Kozinski (Appointed by Ronald Reagan) is still on the Ninth Circut, so I'm reasonably optimistic. He's Romanian born, and has handed down numerous good conservative rulings. Bang!
So much for original intent.
Surprised (and pleased) to see this come out of the Ninth.
I cannot believe it. The Ninth Circus finally got it right.
How so? Do you disagree with what Judge O’Scannlain said, below? Or do you think it doesn't apply if the prohibition of commerce in firearms is disguised as a zoning rule? 'Writing in the Majority Opinion, 9th Circuit Judge Diarmuid O’Scannlain emphasized, “Our forefathers recognized that the prohibition of commerce in firearms worked to undermine the right to keep and to bear arms.” 'O’Scannlain also pointed to the recognition of the importance of buying and selling firearms from the time of the English Bill of Rights (1689) to founding of the United States. 'Regarding the era in which the United States was founded, O’Scannlain explained that the states which ratified that Second Amendment did so believing they were not simply protecting a right to keep and bear arms but to buy and sell them as well. He wrote: '"The historical record indicates that Americans continued to believe that such right included the freedom to purchase and to sell weapons. In 1793, Thomas Jefferson noted that “[o]ur citizens have always been free to make, vend, and export arms. It is the constant occupation and livelihood of some of them.”' A government strong enough to impose your standards is strong enough to ban them. Given that he cited it, I believe he was saying that the Alameda County zoning rules ignored and violated the original intent of the second amendment.
"He" who: Roscoe, or Judge O’Scannlain? A government strong enough to impose your standards is strong enough to ban them. The only one who mentioned original intent.
"He" who: Roscoe, or Judge O’Scannlain? --- ConservingFreedom The "original intent" of our Constitution was to support a republican form of government, -- NOT a democracy where the majority rules.. Last I heard, neither roscoe or misterwhite will agree.
Is that what you were saying, Roscoe? A government strong enough to impose your standards is strong enough to ban them. Your ignorance is appalling.
I would have loved to read Judge O’Scannlain attempting an original intent argument. It would have been a surreal experience.
Your evasions are appalling.
A government strong enough to impose your standards is strong enough to ban them. Quote one Framer contending that the intent of the 2nd Amendment was to control county zoning laws, ignoramus.
Name one Redcoat who successfully hid behind zoning laws when the militia was shooting at them? And the non sequitur award of the day goes to hondo68.
The "original intent" of our Constitution was to support a republican form of government, -- NOT a democracy where the majority rules.. Last I heard, neither roscoe or misterwhite will agree. I'll quote the Constitution; "The right of the people to keep and bear arms, shall not be infringed". -- Even by county zoning laws..
The 14th Amendment did not exist in the times of the Framers. In their time the entire BoR only applied to the Federal Government. See MacDonald v. Chicago, 561 U.S. 742 (2010), Syllabus at 2: See MacDonald, Syllabus at 3: County zoning laws which unduly infringe upon 2nd Amendment rights are unconstitutional.
This SCOTUS opinion is not definitive, and does not change the clear words of our Constitution, which has always applied to the States, except where specifically noted. Correct.
Agree.
Agree. Stunned is more like it. I'd expect that of a Ninth Circuit packed with Bernie Sanders appointees, perhaps, but not the current one. Ah well, there's probably some detail I'm missing that vitiates all of it. I haven't read the opinion.
This is incorrect, as clearly and specifically held by the U.S. Supreme Court in Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833). When interpreting the Constitution, SCOTUS opinions are definitive unless they overrule with a subsequent opinion or the people overrule with a subsequent constitutional amendment. The 14th was such an amendment. https://supreme.justia.com/cases/federal/us/32/243/case.html Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833) Syllabus at 243: The provision in the Fifth Amendment to the Constitution of the United States declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the Government of the United States, and is not applicable to the legislation of the States. The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation, and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally and necessarily applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes. Opinion at 250-51: We are of opinion that the provision in the Fifth Amendment to the Constitution declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the Government of the United States, and is not applicable to the legislation of the States. We are therefore of opinion that there is no repugnancy between the several acts of the general assembly of Maryland, given in evidence by the defendants at the trial of this cause, in the court of that State, and the Constitution of the United States. This court, therefore, has no jurisdiction of the cause, and it is dismissed.
This may be the wiggle room you imagine to be there:
This SCOTUS opinion is not definitive, and does not change the clear words of our Constitution, which has always applied to the States, except where specifically noted. We've had this disagreement before, and repeating SCOTUS opinions do not prove your point. You cannot cite anything to support the above statement in ANY part of the Constitution itself. -- It is simply another opinion, and is totally inaccurate. The 14th was an amendment clearing up some mistaken scotus opinions that lead some States to ignore some portions of our Constitution, as they were written.
Your drivel is noted. The opinion of the Supreme Court rules supreme over your mindless drivel. https://supreme.justia.com/cases/federal/us/32/243/case.html Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833) Syllabus at 243: The provision in the Fifth Amendment to the Constitution of the United States declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the Government of the United States, and is not applicable to the legislation of the States.
We've had this disagreement before, and repeating SCOTUS opinions do not prove your point. You cannot cite anything to support the above statement in ANY part of the Constitution itself. -- It is simply another opinion, and is totally inaccurate. The syllabus you quoted above is a specific example of a State power, mentioned in our Constitution. It is an exception, not the rule. SCOTUS opinions are not definitive, and do not change the clear words of our Constitution, which has always applied to the States, except where specifically noted, AS ABOVE.
Really? The clause "the right of the people to keep and bear arms" originally referred only to Federal officials, employees, appointees, etc? There are three kinds of people in the world: those that can add and those that can't
Really? The clause "the right of the people to keep and bear arms" originally referred only to Federal officials, employees, appointees, etc? Obviously, this "question" is based on false premises. The right of the people to keep and bear arms referred to the preexisting right that the colonials brought forth with them into the union. Every original state and the Federal district explicitly adopted the common law of England, excluding those parts that conflicted with the Constitution. The Second Amendment refers to a preesisting right of the people. It did not create any right for anybody. As with the entire Bill of Rights, it did not apply to the States. It was a restriction of authority of the Federal government, only. The members of the constitutional Union were the States that ratified the Constitution (Art. 7). Amendments are ratified by three fourths of the States, either by their legislature or by convention. The States did not make the Bill of Rights a restriction of authority of the States in 1791. In 1791, the States were concerned with Federal expansionism. The Fourteenth Amendment of 1868 produced incorporation of the Bill of Rights against the States. Barron v. Baltimore, 32 U.S. 243, 247-48 (1833) Opinion of the Court, Chief Justice Marshall (7-0) If these propositions be correct, the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the States. In their several Constitutions, they have imposed such restrictions on their respective governments, as their own wisdom suggested, such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest. American Constitutional Law 1, Sources of Power and Restraint, Otis H. Stephens, jr. and John M. Sheb II, 5th Ed., 2012, at 321: Constitutional Law, 17th Ed., Kathleen M. Sullivan and Gerald Gunther, Foundation Press, 2000, Page 348: Constitutional Law, Cases in Context, Randy E. Barnett, Aspen Publishers, 2008, page 148:
Cranky --- Really? Nolu Chan responds, repeating himself, with yet another opinion: --- This type of opinion is currently being used in California to infringe on our right to bear arms. Why Nolu continues to support these State infringements, based on anti-gun opinions, is beyond rationality. Does he really believe that our republican form of government is best served by further prohibitions on individual freedoms?
I don't know. But my take is he believes the bill of rights (at least second ammendment but maybe all of them) was superfluous as it merely codified exisiting English common law and established no new rights. I was was taught differently in the schools I attended. There are three kinds of people in the world: those that can add and those that can't
I was was taught differently in the schools I attended. Me too.. What really puzzles me is why any rational person would WANT to give States the power to ignore our individual rights.
Does he really believe that our republican form of government is best served by further prohibitions on individual freedoms? Hey, it's like a scene from Remember the Titans. tpaine, you must be Dean Martin and cranky, you must be Jerry. I'm your daddy. Now, both of y'all, just get on the bus. See tpaine shill for his favorite Libertarian constitutional scholar: http://libertysflame.com/cgi-bin/readart.cgi?ArtNum=45874 Title: Our Republican Constitution http://libertysflame.com/cgi-bin/readart.cgi?ArtNum=46251 Title: Our Republican Constitution: Securing the Liberty and Sovereignty of We the People Not only did Randy Barnett publish the 296-page book for the general public above, but he previously published a real, full-blasted 1,348-page legal casebook which i just happen to own, and from which I quoted at my #29. Yes, I used tpaine's own preferred constitutional expert (among others) to certify that tpaine is full of shit and has no clue what he is talking about. It is an historical fact that when the Bill of Rights was passed in 1791 as part of the organic law defining the powers of the Federal government, the amendments did not restrict the powers then held by the state governments. Constitutional Law, Cases in Context, Randy E. Barnett, Aspen Publishers, 2008, page 148:
What really puzzles me is why any rational person would WANT to give States the power to ignore our individual rights. Why Nolu continues to support these State infringements, based on anti-gun opinions, is beyond rationality. Does he really believe that our republican form of government is best served by further prohibitions on individual freedoms? In reply, (actually, - putting foot in mouth) nolu posts: --- Title: Our Republican Constitution: Securing the Liberty and Sovereignty of We the People Source: [None] URL Source: [None] Published: May 15, 2016 Author: Randy E. Barnett Anyone can read Barnetts book, which establishes the FACT that there has always been argument about whether the States were bound by amendments to the constitution. -- Natually, the slave States disagreed. -- Nolu still does... So nolu claims, unsupported by the clear words of our Constitution, which specifies the opposite in several places, which I have previously pointed out. The following, by Barnett, supports my argument: -- Constitutional Law, Cases in Context, Randy E. Barnett, Aspen Publishers, 2008, page 148: "Today, most people take for granted that state governments must respect the rights contained in the Bill of Rights, but this is a relatively modern development that took place only after the adoption of the Fourteenth Amendment. In Barron v. Baltimore, Chief Justice Marshall describes what came to be the settled view of how and why the Bill of Rights did not apply to the states." Operative words: -- "what came to be". --- GRANTED, - the SCOTUS and the slave States (and later the southern democrats) have INSISTED that this is the 'settled view'. It is not... And has been in contention ever since.
tpaine cites no page for his argument that Barnett asserted there has been argument. It is a fact that there has been argument whether abortion should be legal or illegal. Citation to purported argument changes nothing. What Barnett actually writes at page 108 of Our Republican Constitution (2016), speaking of the post-war amendments: There were arguments. The arguments had failed. The U.S. Supreme Court had been crystal clear that the Bill of Rights did not apply to the States. That was why the 14th Amendment was required. So nolu claims, unsupported by the clear words of our Constitution, which specifies the opposite in several places, which I have previously pointed out. Dean Arseface and partner Jerry claim the 2nd Amendment created the right to keep and bear arms. These shitheads overlook that the colonists declared independence in 1776, had a government and union for years under the Articles of Confederation, and formed a new union and government in 1789 under the Constitution. They then claim that the right to keep and bear arms was created by amendment in 1791. If one believes shithead law and history, nowhere in the 15 years between 1776 and 1791 did the people assert the right to keep and bear arms. In reality, the people asserted the right to keep and bear arms as colonists, and as revolutionaries, and they brought that existing right with them into an American union. Just how stupid can you get? Barron v. Baltimore, 32 U.S. 243, 247-48 (1833) Opinion of the Court, Chief Justice Marshall (7-0) If these propositions be correct, the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the States. In their several Constitutions, they have imposed such restrictions on their respective governments, as their own wisdom suggested, such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest. American Constitutional Law 1, Sources of Power and Restraint, Otis H. Stephens, jr. and John M. Sheb II, 5th Ed., 2012, at 321: Constitutional Law, 17th Ed., Kathleen M. Sullivan and Gerald Gunther, Foundation Press, 2000, Page 348: Constitutional Law, 3rd Edition, Erwin Chermerinsky, Aspen Publishers, 2009, page 525-26: BARRON v. MAYOR & CITY COUNCIL OF BLATIMORE, 32 U.S. (7 Pet.) 243 (1833) [case quote omitted] From a late twentieth century perspective, it is troubling that state and local governments were free to violate basic constitutional rights. Yet, at the time of its decision, Barron made sense because of faith in state constitutions and because of the shared understanding that the Bill of Rights was meant to apply only to the federal government. As Professor John Hart Ely noted: "In terms of the original understanding, Barron was almost certainly decided correctly." Cases and Materials on Federal Constitutional Law, Volume V, The Fourteenth Amendment, Lee J. Strang, Lexis-Nexis 2013, page 61: The Incorporation Doctrine is a key function of the Due Process Clause. The Doctrine holds that (most of) the Bill of Rights applies to the states. The Incorporation Doctrine was at the heart of intense controversy from the 1920s to the 1960s. The controversy had a number of facets: first, whether the Bill of Rights applied to the states; second, whether the Due Process Clause was the vehicle to make that happen; third, whether the Due Process Clause incorporated some or all of the Bill of Rights; fourth, if the Due Process Clause incorporated only some of the Bill of Rights, what test should the Supreme Court utilize to make that determination; and, fifth, are the rights incorporated against the states identical to the rights as applied to the federal government? The background to the Incorporation Doctrine has two major components. The first is the Supreme Court case of Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833), reprinted below, where the Supreme Court ruled that the Bill of Rights only restricted the federal government. The second component is the goal of the Reconstruction Republicans, inherited from the antebellum abolitionist movement, to apply federal constitutional restrictions to the states to prohibit slavery and protect newly freed black Americans. American Constitutional Law, Second Edition, Lawrence H. Tribe, The Foundation Press, Inc., 1988, page 772: (some citations omitted) In 1938, in United States v. Carolene Products Co., the Supreme Court suggested that "[t]here may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth." Nine years later, the Court came within one vote of holding that the fourteenth amendment guaranteed that "no state could deprive its citizens of the privileges and protections of the Bill of Rights. 2 Such a holding could have taken either of two forms: most plausibly, it could have emerged as an elaboration of the privileges or immunities of national citizenship; or it could have emerged as a translation of fourteenth amendment "liberty" into the freedoms secured by the Bill of Rights, with the understanding that depriving someone of such liberty "without due process of law" means doing so "where the federal government could not." In neither form has the full incorporation of the Bill of Rights into the fourteenth amendment ever commanded a majority on the Court, but in giving content to the due process clause "the Court has looked increasingly to the Bill of Rights for guidance [to the point where] many of the rights guaranteed by the first eight Amendments'" have been "selectively" absorbed into the fourteenth. 2 Adamson v. California, 332 U.S. 46, 74-75 (1947) (Black, J., dissenting, joined on this issue by Douglas, Mruphy, and Rutledge, JJ.) Constitutional Law, Sixth Edition, Jerome A. Barron and C. Thomas Dienes, Black letter Series, West Group, 2003, page 164: One of the acts of the first Congress was to initiate the enactment of ten amendments to the Constitution, popularly called the Bill of Rights. These amendments were designed to protect the individual from various infringements on freedom which might emanate from the newly created federal government. The provisions of the Bill of Rights do not directly limit state action. Barron v. The Mayor and City Council of Baltimore (1833). Most of the guarantees of the Bill of Rights apply to the states as part of the liberty protected by The Fourteenth Amendment Due Process Clause. https://www.law.cornell.edu/wex/incorporation_doctrine The incorporation doctrine is a constitutional doctrine through which selected provisions of the Bill of Rights are made applicable to the states through the Due Process clause of the Fourteenth Amendment. This means that state governments are held to the same standards as the Federal Government regarding certain constitutional rights. The Supreme Court could have used the Privileges and Immunities Clause of the Fourteenth Amendment to apply the Bill of Rights to the states. However, in the Slaughter-House Cases 83 US 36, the Supreme Court held that the Privileges and Immunities clause of the Fourteenth Amendment placed no restriction on the police powers of the state and it was intended to apply only to privileges and immunities of citizens of the United States and not the privileges and immunities of citizens of the individual states. This decision effectively put state laws beyond the review of the Supreme Court. To circumvent this, the Supreme Court began a process called “selective incorporation” by gradually applying selected provisions of the Bill of Rights to the states through the Fourteenth Amendment Due Process clause. For Arsefaces who believe the whole Bill of Rights applies to the States today, they must explain the Fifth Amendment requirement for a Grand Jury. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. As everyone but Arseface knows, the vast majority of State cases are instituted without a Grand Jury, relying on an information submitted to the court. Black's Law Dictionary, 6th Edition While Fifth Amendment of U.S. Constitution requires federal government to prosecute infamous crimes only upon presentment of grand jury indictment, in most states the information may be used in place of grand jury indictment to bring a person to trial. As regards federal crimes, see Fed.RCrim.P. 7. See also Arraignment; Indictment; Preliminary hearing. As to joinder of informations, see Joinder. The Grand Jury provision of the Fifth Amendment has not been incorporated against the States. That has been the state of things from 1791 to 2016. Arseface.
The following, by Barnett, supports my argument: -- Constitutional Law, Cases in Context, Randy E. Barnett, Aspen Publishers, 2008, page 148: "Today, most people take for granted that state governments must respect the rights contained in the Bill of Rights, but this is a relatively modern development that took place only after the adoption of the Fourteenth Amendment. In Barron v. Baltimore, Chief Justice Marshall describes what came to be the settled view of how and why the Bill of Rights did not apply to the states." Operative words: -- "what came to be". --- GRANTED, - the SCOTUS and the slave States (and later the southern democrats, and now the progressive prohibitionists) have INSISTED that this is the 'settled view'. It is not... And has been in contention ever since. Round you go, in your circular denials, dispute your admission that there were arguments, --- and of course they 'failed', in YOUR eyes,and those of the SCOTUS. And as I've also said before, the 14th was indeed needed to clarify the issue, after the civil war. As usual, the rest of your post is repetitive opinion, that proves nothing other than you persist in trying to bafflegab the real issue. -- States are bound to honor our Constitution and its amendments, as specified in the document itself, and they always have been.
What Barnett actually writes at page 108 of Our Republican Constitution (2016), speaking of the post-war amendments: [...] Whether by the Fourteenth Amendment alone, or in combination with the Thirteenth, states may not abridge the personal guarntees in what we now call the Bill of Rights.... There were arguments. The arguments had failed. The U.S. Supreme Court had been crystal clear that the Bill of Rights did not apply to the States. That was why the 14th Amendment was required. So nolu claims, unsupported by the clear words of our Constitution, which specifies the opposite in several places, which I have previously pointed out. Dean Arseface and partner Jerry claim the 2nd Amendment created the right to keep and bear arms. These shitheads overlook that the colonists declared independence in 1776, had a government and union for years under the Articles of Confederation, and formed a new union and government in 1789 under the Constitution. They then claim that the right to keep and bear arms was created by amendment in 1791. If one believes shithead law and history, nowhere in the 15 years between 1776 and 1791 did the people assert the right to keep and bear arms. In reality, the people asserted the right to keep and bear arms as colonists, and as revolutionaries, and they brought that existing right with them into an American union. Just how stupid can you get? Barron v. Baltimore, 32 U.S. 243, 247-48 (1833) Opinion of the Court, Chief Justice Marshall (7-0) If these propositions be correct, the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the States. In their several Constitutions, they have imposed such restrictions on their respective governments, as their own wisdom suggested, such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest. American Constitutional Law 1, Sources of Power and Restraint, Otis H. Stephens, jr. and John M. Sheb II, 5th Ed., 2012, at 321: Constitutional Law, 17th Ed., Kathleen M. Sullivan and Gerald Gunther, Foundation Press, 2000, Page 348: Constitutional Law, 3rd Edition, Erwin Chermerinsky, Aspen Publishers, 2009, page 525-26: BARRON v. MAYOR & CITY COUNCIL OF BLATIMORE, 32 U.S. (7 Pet.) 243 (1833) [case quote omitted] From a late twentieth century perspective, it is troubling that state and local governments were free to violate basic constitutional rights. Yet, at the time of its decision, Barron made sense because of faith in state constitutions and because of the shared understanding that the Bill of Rights was meant to apply only to the federal government. As Professor John Hart Ely noted: "In terms of the original understanding, Barron was almost certainly decided correctly." Cases and Materials on Federal Constitutional Law, Volume V, The Fourteenth Amendment, Lee J. Strang, Lexis-Nexis 2013, page 61: The Incorporation Doctrine is a key function of the Due Process Clause. The Doctrine holds that (most of) the Bill of Rights applies to the states. The Incorporation Doctrine was at the heart of intense controversy from the 1920s to the 1960s. The controversy had a number of facets: first, whether the Bill of Rights applied to the states; second, whether the Due Process Clause was the vehicle to make that happen; third, whether the Due Process Clause incorporated some or all of the Bill of Rights; fourth, if the Due Process Clause incorporated only some of the Bill of Rights, what test should the Supreme Court utilize to make that determination; and, fifth, are the rights incorporated against the states identical to the rights as applied to the federal government? The background to the Incorporation Doctrine has two major components. The first is the Supreme Court case of Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833), reprinted below, where the Supreme Court ruled that the Bill of Rights only restricted the federal government. The second component is the goal of the Reconstruction Republicans, inherited from the antebellum abolitionist movement, to apply federal constitutional restrictions to the states to prohibit slavery and protect newly freed black Americans. American Constitutional Law, Second Edition, Lawrence H. Tribe, The Foundation Press, Inc., 1988, page 772: (some citations omitted) In 1938, in United States v. Carolene Products Co., the Supreme Court suggested that "[t]here may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth." Nine years later, the Court came within one vote of holding that the fourteenth amendment guaranteed that "no state could deprive its citizens of the privileges and protections of the Bill of Rights. 2 Such a holding could have taken either of two forms: most plausibly, it could have emerged as an elaboration of the privileges or immunities of national citizenship; or it could have emerged as a translation of fourteenth amendment "liberty" into the freedoms secured by the Bill of Rights, with the understanding that depriving someone of such liberty "without due process of law" means doing so "where the federal government could not." In neither form has the full incorporation of the Bill of Rights into the fourteenth amendment ever commanded a majority on the Court, but in giving content to the due process clause "the Court has looked increasingly to the Bill of Rights for guidance [to the point where] many of the rights guaranteed by the first eight Amendments'" have been "selectively" absorbed into the fourteenth. 2 Adamson v. California, 332 U.S. 46, 74-75 (1947) (Black, J., dissenting, joined on this issue by Douglas, Mruphy, and Rutledge, JJ.) Constitutional Law, Sixth Edition, Jerome A. Barron and C. Thomas Dienes, Black letter Series, West Group, 2003, page 164: One of the acts of the first Congress was to initiate the enactment of ten amendments to the Constitution, popularly called the Bill of Rights. These amendments were designed to protect the individual from various infringements on freedom which might emanate from the newly created federal government. The provisions of the Bill of Rights do not directly limit state action. Barron v. The Mayor and City Council of Baltimore (1833). Most of the guarantees of the Bill of Rights apply to the states as part of the liberty protected by The Fourteenth Amendment Due Process Clause. https://www.law.cornell.edu/wex/incorporation_doctrine The incorporation doctrine is a constitutional doctrine through which selected provisions of the Bill of Rights are made applicable to the states through the Due Process clause of the Fourteenth Amendment. This means that state governments are held to the same standards as the Federal Government regarding certain constitutional rights. The Supreme Court could have used the Privileges and Immunities Clause of the Fourteenth Amendment to apply the Bill of Rights to the states. However, in the Slaughter-House Cases 83 US 36, the Supreme Court held that the Privileges and Immunities clause of the Fourteenth Amendment placed no restriction on the police powers of the state and it was intended to apply only to privileges and immunities of citizens of the United States and not the privileges and immunities of citizens of the individual states. This decision effectively put state laws beyond the review of the Supreme Court. To circumvent this, the Supreme Court began a process called “selective incorporation” by gradually applying selected provisions of the Bill of Rights to the states through the Fourteenth Amendment Due Process clause. For Arsefaces who believe the whole Bill of Rights applies to the States today, they must explain the Fifth Amendment requirement for a Grand Jury. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. As everyone but Arseface knows, the vast majority of State cases are instituted without a Grand Jury, relying on an information submitted to the court. Black's Law Dictionary, 6th Edition While Fifth Amendment of U.S. Constitution requires federal government to prosecute infamous crimes only upon presentment of grand jury indictment, in most states the information may be used in place of grand jury indictment to bring a person to trial. As regards federal crimes, see Fed.RCrim.P. 7. See also Arraignment; Indictment; Preliminary hearing. As to joinder of informations, see Joinder. The Grand Jury provision of the Fifth Amendment has not been incorporated against the States. That has been the state of things from 1791 to 2016. Arseface.
As you (falsely) claim that the whole Bill of Rights applies, and has always applied, to the States, please explain why the States are free to try and execute people without complying with the 5th Amendment requirement for an indictment issued by a grand jury. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Why are States free to ignore that requirement every day?
States are bound to honor our Constitution and its amendments, as specified in the document itself, and they always have been. As usual, you fail to read and understand. ---- Note "as specified in the document itself". ---- There are specific exceptions, in the document. Read below: --- "on a presentment or indictment". Amendment V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. States don't ignore it; -- they are empowered to use their own version of 'a presentment'. Perhaps you should take a remedial course in reading comprehension?
Read below: --- "on a presentment or indictment" Read again stupid: "Amendment V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury," States use neither a presentment nor an indictment of a grand jury. A grand jury is required for a Federal felony prosecution but not for a State prosecution. Get your head out of your ass. Learn what a presentment is dumbshit. Black's Law Dictionary, 6th Edition Perhaps you should take a remedial course in reading comprehension? No, you are too ignorant of the law to know what a presentment is, and too lazy to look up a legal term you do not know. You blather on only to prove to the world that you have no clue what you are talking about. For a major Federal crime, a grand jury is mandatory per the 5th Amendment. For a State prosecution is is not, depending on State law. Most states use an information, with no grand jury presentment or indictment involved, as no grand jury is involved. How can that be if the 5th Amendment applies to the States?
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Top • Page Up • Full Thread • Page Down • Bottom/Latest9th Circuit Judge Diarmuid O’Scannlain
"We (government) need to do a lot less, a lot sooner" ~Ron Paul
#2. To: *Bang List* (#0)
"We (government) need to do a lot less, a lot sooner" ~Ron Paul
#3. To: cranky (#0)
Teixeira revolves around Alameda County zoning rules
#4. To: nolu chan (#0)
#5. To: cranky (#0)
#6. To: Roscoe (#3)
So much for original intent.
#7. To: ConservingFreedom (#6)
#8. To: misterwhite (#7)
Given that he cited it, I believe he was saying that the Alameda County zoning rules ignored and violated the original intent of the second amendment.
#9. To: ConservingFreedom (#8)
"He" who: Roscoe, or Judge O’Scannlain?
#10. To: ConservingFreedom, roscoe, misterwhite, Y'ALL (#8)
misterwhite --- Given that he cited it, I believe he was saying that the Alameda County zoning rules ignored and violated the original intent of the second amendment.
#11. To: misterwhite, Roscoe (#7)
I believe he was saying that the Alameda County zoning rules ignored and violated the original intent of the second amendment.
#12. To: ConservingFreedom (#6)
How so?
#13. To: misterwhite (#9)
#14. To: Roscoe (#12)
#15. To: ConservingFreedom (#14)
#16. To: Roscoe, ConservingFreedom (#15)
Quote one Framer contending that the intent of the 2nd Amendment was to control county zoning laws
"We (government) need to do a lot less, a lot sooner" ~Ron Paul
#17. To: hondo68 (#16)
#18. To: Roscoe, who supports zoning to ban guns, Y'ALL (#15)
Quote one Framer contending that the intent of the 2nd Amendment was to control county zoning laws, --- roscoe
#19. To: Roscoe, ConservingFreedom (#15)
Quote one Framer contending that the intent of the 2nd Amendment was to control county zoning laws, ignoramus.
(b) The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government, not to the States, see, e.g., Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 247, but the constitutional Amendments adopted in the Civil War’s aftermathfundamentally altered the federal system.
(d) The Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States. Pp. 19–33.
#20. To: nolu chan, roscoe, Y'ALL (#19)
Roscoe --- Quote one Framer contending that the intent of the 2nd Amendment was to control county zoning laws, ignoramus.
Nolu Chan. ---- The 14th Amendment did not exist in the times of the Framers. In their time the entire BoR only applied to the Federal Government.
See MacDonald v. Chicago, 561 U.S. 742 (2010), Syllabus at 2: --- (b) The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government, not to the States, see, e.g., Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 247, but the constitutional Amendments adopted in the Civil War’s aftermathfundamentally altered the federal system.
County zoning laws which unduly infringe upon 2nd Amendment rights are unconstitutional.
#21. To: Vicomte13 (#4)
Surprised (and pleased) to see this come out of the Ninth.
#22. To: nolu chan (#21)
Surprised (and pleased) to see this come out of the Ninth.
#23. To: tpaine (#20)
This SCOTUS opinion is not definitive, and does not change the clear words of our Constitution, which has always applied to the States, except where specifically noted.
Syllabus
But it is universally understood, it is a part of the history of the day, that the great revolution which established the Constitution of the United States was not effected without immense opposition. Serious fears were extensively entertained that those powers which the patriot statesmen who then watched over the interests of our country deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the Constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the General Government -- not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in Congress and adopted by the States. These amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them.
#24. To: Vicomte13 (#22)
Ah well, there's probably some detail I'm missing that vitiates all of it. I haven't read the opinion.
We reiterate Heller and McDonald’s assurances that government enjoys substantial leeway under the Second Amendment to regulate the commercial sale of firearms. See id. at 786; Heller, 554 U.S. at 626–27. Alameda County’s Ordinance may very well be permissible. Thus far, however, the County has failed to justify the burden it has placed on the right of law-abiding citizens to purchase guns. The Second Amendment requires something more rigorous than the unsubstantiated assertions offered to the district court. Consequently, we reverse the dismissal of Teixeira’s wellpled Second Amendment claims and remand for the district court to subject Alameda County’s 500-foot rule to the proper level of scrutiny.
#25. To: nolu chan (#23)
Nolu Chan. ---- The 14th Amendment did not exist in the times of the Framers. In their time the entire BoR only applied to the Federal Government. ---- See MacDonald v. Chicago, 561 U.S. 742 (2010), Syllabus at 2: - -- (b) The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government, not to the States, see, e.g., Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 247, but the constitutional Amendments adopted in the Civil War’s aftermathfundamentally altered the federal system.
This is incorrect, as clearly and specifically held by the U.S. Supreme Court in Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833).
When interpreting the Constitution, SCOTUS opinions are definitive unless they overrule with a subsequent opinion or the people overrule with a subsequent constitutional amendment.
The 14th was such an amendment.
#26. To: tpaine (#25)
This SCOTUS opinion is not definitive, and does not change the clear words of our Constitution, which has always applied to the States, except where specifically noted.
Syllabus
#27. To: nolu chan (#26)
When interpreting the Constitution, SCOTUS opinions are definitive unless they overrule with a subsequent opinion or the people overrule with a subsequent constitutional amendment.
Your drivel is noted. The opinion of the Supreme Court rules supreme over your mindless drivel. -------- Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833)---- Syllabus at 243: ---- Syllabus ---- The provision in the Fifth Amendment to the Constitution of the United States declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the Government of the United States, and is not applicable to the legislation of the States
#28. To: nolu chan (#19)
In their time the entire BoR only applied to the Federal Government.
#29. To: cranky (#28)
In their time the entire BoR only applied to the Federal Government.
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes.
Incorporation of the Bill of Rights. Originally, the protections of the Bill of Rights aplied only to infringements of liberty by the federal government (see Barron v. Baltimore [1833]) (discussed and reprinted in Volume II, chapter 1). However, the Fourteenth Amendment created a constitutional basis for the application of the Bill of Rights to state action.
The Bill of Rights originally guaranteed individual liberties only against the federal government. The proposal of the Bill of Rights was part of a political compromise designed to enlist support for ratification from Anti-Federalists who did not trust the enumeration of powers in the federal Constitution to serve as a sufficient check on the new national autority. Express checks on arbitrary exercises of authority were meant to add an external check to government of enumerated and thus limited powers. While Article I, § 10 imposed a handful of express prohibitions on state action, nothing in the first eight Amendments expressly constrained the states, and the 10th Amendment expressly reiterated that powers not delegated to the United States were reserved to the States.
Today, most people take for granted that state governments must respect the rights contained in the Bill of Rights, but this is a relatively modern development that took place only after the adoption of the Fourteenth Amendment. In Barron v. Baltimore, Chief Justice Marshall describes what came to be the settled view of how and why the Bill of Rights did not apply to the states. Reading Barron in its entirety is essential to grasping the objectives of the Repubicans in the Thirty-niinth Congress who drated the Fourteenth Amendment, portions of which were meant to reverse Barron. Barron is to the Fourteenth Amendment what Chisholm v. Georgia is to the Eleventh. The reasoning of Barron is also crucial to appreciating both the need for, and the controversy surrounding, the so-called incorporation doctrine, developed in the twentieth century, by which selected portions of the Bill of Rights were "incorporated" into the Fourteenth Amendment and applied to the states.
#30. To: cranky, Y'ALL, Nolu Chan, (#28)
nolu chan --- In their time the entire BoR only applied to the Federal Government.
The Second Amendment refers to a preesisting right of the people. It did not create any right for anybody. As with the entire Bill of Rights, it did not apply to the States. It was a restriction of authority of the Federal government, only.
#31. To: tpaine (#30)
Does he really believe that our republican form of government is best served by further prohibitions on individual freedoms?
#32. To: cranky, Y'ALL (#31)
my take is he believes the bill of rights (at least second ammendment but maybe all of them) was superfluous as it merely codified exisiting English common law and established no new rights.
#33. To: tpaine, cranky (#30)
Why Nolu continues to support these State infringements, based on anti-gun opinions, is beyond rationality.
U.S. Constitution
See other U.S. Constitution Articles
Source: Amazon
URL Source: [None]
Published: Apr 21, 2016
Author: Randy Barnett
Post Date: 2016-04-21 18:54:18 by tpaine U.S. Constitution
See other U.S. Constitution Articles
Source: [None]
URL Source: [None]
Published: May 15, 2016
Author: Randy E. Barnett
Post Date: 2016-05-15 00:25:26 by tpaineToday, most people take for granted that state governments must respect the rights contained in the Bill of Rights, but this is a relatively modern development that took place only after the adoption of the Fourteenth Amendment. In Barron v. Baltimore, Chief Justice Marshall describes what came to be the settled view of how and why the Bill of Rights did not apply to the states. Reading Barron in its entirety is essential to grasping the objectives of the Repubicans in the Thirty-ninth Congress who drafted the Fourteenth Amendment, portions of which were meant to reverse Barron. Barron is to the Fourteenth Amendment what Chisholm v. Georgia is to the Eleventh. The reasoning of Barron is also crucial to appreciating both the need for, and the controversy surrounding, the so-called incorporation doctrine, developed in the twentieth century, by which selected portions of the Bill of Rights were "incorporated" into the Fourteenth Amendment and applied to the states.
#34. To: nolu chan, puts foot in mouth, again, Y'ALL (#33)
Not only did Randy Barnett publish the 296-page book for the general public above, but he previously published a real, full- blasted 1,348-page legal casebook which i just happen to own, and from which I quoted at my #29. Yes, I used tpaine's own preferred constitutional expert (among others) to certify that tpaine is full of shit and has no clue what he is talking about.
[this is not in Barnetts book] It is an historical fact that when the Bill of Rights was passed in 1791 as part of the organic law defining the powers of the Federal government, the amendments did not restrict the powers then held by the state governments.
#35. To: tpaine (#34)
Anyone can read Barnetts book, [except tpaine] which establishes the FACT that there has always been argument about whether the States were bound by amendments to the constitution. -- Natually, the slave States disagreed. -- Nolu still does...
Why then add the Privileges and Immunities Clause to the Constitution if these rights were already included in Article IV and in the first eight amendments? Because, Howard expalined, the courts had ruled that "these immunities, privileges, rights, thus guaranteed by the Constitution or recognized by it . . . do not operate in the slightest degree as a restraint or prohibition upon State legislation."
[this is not in Barnetts book] It is an historical fact that when the Bill of Rights was passed in 1791 as part of the organic law defining the powers of the Federal government, the amendments did not restrict the powers then held by the state governments.
The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes.
Incorporation of the Bill of Rights. Originally, the protections of the Bill of Rights applied only to infringements of liberty by the federal government (see Barron v. Baltimore [1833]) (discussed and reprinted in Volume II, chapter 1). However, the Fourteenth Amendment created a constitutional basis for the application of the Bill of Rights to state action.
The Bill of Rights originally guaranteed individual liberties only against the federal government. The proposal of the Bill of Rights was part of a political compromise designed to enlist support for ratification from Anti-Federalists who did not trust the enumeration of powers in the federal Constitution to serve as a sufficient check on the new national autority. Express checks on arbitrary exercises of authority were meant to add an external check to government of enumerated and thus limited powers. While Article I, § 10 imposed a handful of express prohibitions on state action, nothing in the first eight Amendments expressly constrained the states, and the 10th Amendment expressly reiterated that powers not delegated to the United States were reserved to the States.
The issue arose early in American history as to whether the Bill of Rights applies to state and local governments. The Supreme Court definitively answered that question in the following case.
C. THE INCORPORATION DOCTRINE
§ 11-2. Selective Incorporation of Bill of Rights Safeguards as a Partial Answer
B. BILL OF RIGHTS
Incorporation Doctrine
Amendment V
Information. An accusation exhibited against a person for some criminal offense, without an indictment. An accusation in the nature of an indictment, from which it differs only in being presented by a competent public officer on his oath of office, instead of a grand jury on their oath. A written accusation made by a public prosecutor, without the intervention of a grand jury. Salvail v. Sharkey, 108 RI. 63, 271 A.2d 814, 817. Function of an "information" is to inform defendant of the nature of the charge made against him and the act constituting such charge so that he can prepare for trial and to prevent him from being tried again for the same offense. People v. Cooper, 35 Misc.2d 90, 229 N.Y.S.2d 287, 288.
#36. To: nolu chan (#35)
There were arguments. The arguments had failed. The U.S. Supreme Court had been crystal clear that the Bill of Rights did not apply to the States. That was why the 14th Amendment was required.
#37. To: tpaine (#36)
States are bound to honor our Constitution and its amendments, as specified in the document itself, and they always have been.
Why then add the Privileges and Immunities Clause to the Constitution if these rights were already included in Article IV and in the first eight amendments? Because, Howard expalined, the courts had ruled that "these immunities, privileges, rights, thus guaranteed by the Constitution or recognized by it . . . do not operate in the slightest degree as a restraint or prohibition upon State legislation."
[this is not in Barnetts book] It is an historical fact that when the Bill of Rights was passed in 1791 as part of the organic law defining the powers of the Federal government, the amendments did not restrict the powers then held by the state governments.
The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes.
Incorporation of the Bill of Rights. Originally, the protections of the Bill of Rights applied only to infringements of liberty by the federal government (see Barron v. Baltimore [1833]) (discussed and reprinted in Volume II, chapter 1). However, the Fourteenth Amendment created a constitutional basis for the application of the Bill of Rights to state action.
The Bill of Rights originally guaranteed individual liberties only against the federal government. The proposal of the Bill of Rights was part of a political compromise designed to enlist support for ratification from Anti-Federalists who did not trust the enumeration of powers in the federal Constitution to serve as a sufficient check on the new national autority. Express checks on arbitrary exercises of authority were meant to add an external check to government of enumerated and thus limited powers. While Article I, § 10 imposed a handful of express prohibitions on state action, nothing in the first eight Amendments expressly constrained the states, and the 10th Amendment expressly reiterated that powers not delegated to the United States were reserved to the States.
The issue arose early in American history as to whether the Bill of Rights applies to state and local governments. The Supreme Court definitively answered that question in the following case.
C. THE INCORPORATION DOCTRINE
§ 11-2. Selective Incorporation of Bill of Rights Safeguards as a Partial Answer
B. BILL OF RIGHTS
Incorporation Doctrine
Amendment V
Information. An accusation exhibited against a person for some criminal offense, without an indictment. An accusation in the nature of an indictment, from which it differs only in being presented by a competent public officer on his oath of office, instead of a grand jury on their oath. A written accusation made by a public prosecutor, without the intervention of a grand jury. Salvail v. Sharkey, 108 RI. 63, 271 A.2d 814, 817. Function of an "information" is to inform defendant of the nature of the charge made against him and the act constituting such charge so that he can prepare for trial and to prevent him from being tried again for the same offense. People v. Cooper, 35 Misc.2d 90, 229 N.Y.S.2d 287, 288.
#38. To: tpaine (#36)
States are bound to honor our Constitution and its amendments, as specified in the document itself, and they always have been.
Amendment V
#39. To: nolu chan (#38)
As you (falsely) claim that the whole Bill of Rights applies, and has always applied, to the States,
- please explain why the States are free to try and execute people without complying with the 5th Amendment requirement for an indictment issued by a grand jury.
Why are States free to ignore that requirement every day?
#40. To: tpaine (#39)
Read below: --- "on a presentment or indictment".
Presentment. The written notice taken by a grand jury of any offense, from their own knowledge or observation without any bill of indictment laid before them at the suit of the government. A presentment is an accusation, initiated by the grand jury itself, and in effect instruction that an indictment be drawn. U.S. v. Briggs, C.A.Fla., 514 F.2d 794, 804. A written accusation of crime made and returned by the grand jury upon its own initiative in the exercise of its lawful inquisitorial powers, is in the form of a bill of indictment, and in practice is signed individually by all the grand jurors who return it. See State v. Hudson, 487 Tenn.Cr.Ap S.W.2d 672, 674. See also Indictment; Information; Presenter.
States don't ignore it; -- they are empowered to use their own version of 'a presentment'.
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