9th Circuit Judge Diarmuid O’Scannlain

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.

en.wikipedia.org/wiki/Alex_Kozinski

Teixeira revolves around Alameda County zoning rules

So much for original intent.

So much for original intent.

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.”'

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?

"He" who: Roscoe, or Judge O’Scannlain?

The only one who mentioned original intent.

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.

"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.

I believe he was saying that the Alameda County zoning rules ignored and violated the original intent of the second amendment.

Is that what you were saying, Roscoe?

How so?

Your ignorance is appalling.

Quote one Framer contending that the intent of the 2nd Amendment was to control county zoning laws

Name one Redcoat who successfully hid behind zoning laws when the militia was shooting at them?

Last I heard, neither roscoe or misterwhite will agree.

Quote one Framer contending that the intent of the 2nd Amendment was to control county zoning laws, --- roscoe

I'll quote the Constitution; "The right of the people to keep and bear arms, shall not be infringed". -- Even by county zoning laws..

Quote one Framer contending that the intent of the 2nd Amendment was to control county zoning laws, ignoramus.

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.

See MacDonald, Syllabus at 3:

(d) The Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States. Pp. 19–33.

County zoning laws which unduly infringe upon 2nd Amendment rights are unconstitutional.

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.

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.

County zoning laws which unduly infringe upon 2nd Amendment rights are unconstitutional.

Correct.

Surprised (and pleased) to see this come out of the Ninth.

Agree.

Surprised (and pleased) to see this come out of the Ninth.

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 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.

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:

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.

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:

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.

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.

Ah well, there's probably some detail I'm missing that vitiates all of it. I haven't read the opinion.

This may be the wiggle room you imagine to be there:

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.

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 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.

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).

We've had this disagreement before, and repeating SCOTUS opinions do not prove your point.

When interpreting the Constitution, SCOTUS opinions are definitive unless they overrule with a subsequent opinion or the people overrule with a subsequent constitutional amendment.

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 such an amendment.

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.

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.

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:

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.

When interpreting the Constitution, SCOTUS opinions are definitive unless they overrule with a subsequent opinion or the people overrule with a subsequent constitutional amendment.

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.

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

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.

In their time the entire BoR only applied to the Federal Government.

Really?

The clause "the right of the people to keep and bear arms" originally referred only to Federal officials, employees, appointees, etc?

In their time the entire BoR only applied to the Federal Government.

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.

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 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)

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.

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:

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.

Constitutional Law, 17th Ed., Kathleen M. Sullivan and Gerald Gunther, Foundation Press, 2000, Page 348:

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.

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. 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.

nolu chan --- In their time the entire BoR only applied to the Federal Government.

Cranky --- Really?

Nolu Chan responds, repeating himself, with yet another opinion: ---

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.

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?

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.

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.

Me too..

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?

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

U.S. Constitution
See other U.S. Constitution Articles

Title: Our Republican Constitution
Source: Amazon
URL Source: [None]
Published: Apr 21, 2016
Author: Randy Barnett
Post Date: 2016-04-21 18:54:18 by tpaine

http://libertysflame.com/cgi-bin/readart.cgi?ArtNum=46251

U.S. Constitution
See other U.S. Constitution Articles

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
Post Date: 2016-05-15 00:25:26 by tpaine

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:

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-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.

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

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.

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...

[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.

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.

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...

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:

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."

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.

[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.

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)

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.

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:

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.

Constitutional Law, 17th Ed., Kathleen M. Sullivan and Gerald Gunther, Foundation Press, 2000, Page 348:

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.

Constitutional Law, 3rd Edition, Erwin Chermerinsky, Aspen Publishers, 2009, page 525-26:

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.

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:

C. THE INCORPORATION DOCTRINE

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)

§ 11-2. Selective Incorporation of Bill of Rights Safeguards as a Partial Answer

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:

B. BILL OF RIGHTS

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

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.

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.

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

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.

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.

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.

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.

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.

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:

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."

[...]

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.

[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.

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)

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.

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:

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.

Constitutional Law, 17th Ed., Kathleen M. Sullivan and Gerald Gunther, Foundation Press, 2000, Page 348:

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.

Constitutional Law, 3rd Edition, Erwin Chermerinsky, Aspen Publishers, 2009, page 525-26:

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.

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:

C. THE INCORPORATION DOCTRINE

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)

§ 11-2. Selective Incorporation of Bill of Rights Safeguards as a Partial Answer

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:

B. BILL OF RIGHTS

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

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.

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.

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

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.

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.

States are bound to honor our Constitution and its amendments, as specified in the document itself, and they always have been.

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.

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.

Why are States free to ignore that requirement every day?

As you (falsely) claim that the whole Bill of Rights applies, and has always applied, to the States,

As usual, you fail to read and understand. ---- Note "as specified in the document itself". ---- There are specific exceptions, in the document.

- 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.

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.

Why are States free to ignore that requirement every day?

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 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

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'.

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?

States are bound to honor our Constitution and its amendments, as specified in the document itself, and they always have been.

As you (falsely) claim that the whole Bill of Rights applies, and has always applied, to the States,

As usual, you fail to read and understand. ---- Note "as specified in the document itself". ---- There are specific exceptions, within the document. -- You claim the 5th amendment is such an exception.

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?

According to you, it doesn't. -- Which does NOT MEAN that a State like California can ignore the 2nd Amendment.

Why do you think it can?

States are bound to honor our [the US] Constitution and its amendments, as specified in the document itself, and they always have been.

Of course.

Anyone arguing the point is a mere simpleton.

States are bound to honor our Constitution and its amendments, as specified in the document itself, and they always have been.

As you (falsely) claim that the whole Bill of Rights applies, and has always applied, to the States,

As usual, you fail to read and understand. ---- Note "as specified in the document itself". ---- There are specific exceptions, within the document. -- You claim the 5th amendment is such an exception.

As shown below, I contended the entire Bill of Rights applied only to the Federal government and not to the States when ratified in 1791.

Pursuant to the 14th Amendment, parts of the Bill of Rights have been selectively incorporated to apply to the States. The Second Amendment has recently been fully incorporated by McDonald v Chicago, 561 US 742 (2010). The Grand Jury provision of the 5th Amendment has never been incorporated and has never applied to the States, not in 1791, not now, and not in between.

No part of the Bill of Rights applies to the States, or has ever applied to the States, except those which have specifically been incorporated by the U.S. Supreme Court.

Your repeated claim that "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," is bullshit and has been bullshit for over two centuries.

As I have clearly stated, no part of the Bill of Rights has ever applied to the States until it was incorporated by the Supreme Court. Incorporation started in the 20th century. The Bill of Rights still has portions that have not been incorporated.

The Great State of California has, with no grand jury presentment or indictment, prosecuted a man for first degree murder, sentenced him to death, and had that upheld by the U.S. Supreme Court.

You may try to dodge, duck and divert but it isn't going to work. I will return yo to your bullshit and destroy it. You are only documenting your ignorance of the law, as with your ignorance of what a presentment is, and your ignorance of the rule of incorporation.

When ratified, the Bill of Rights hade no application to the States.

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?

According to you, it doesn't. -- Which does NOT MEAN that a State like California can ignore the 2nd Amendment.

Why do you think it can?

The 2nd Amendment was fully incorporated in 2010 against the states., all of them, including California. As I said at my #19: "County zoning laws which unduly infringe upon 2nd Amendment rights are unconstitutional."

The 5th Amendment has never been fully incorporated and the Grand Jury provision has never applied to the States.

To help you remember:

#19. To: Roscoe, ConservingFreedom (#15)

Quote one Framer contending that the intent of the 2nd Amendment was to control county zoning laws, ignoramus.

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.

See MacDonald, Syllabus at 3:

(d) The Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States. Pp. 19–33.

County zoning laws which unduly infringe upon 2nd Amendment rights are unconstitutional.

nolu chan  posted on  2016-05-18   17:12:50 ET  Reply   Trace   Private Reply  

---

#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 aftermath fundamentally altered the federal system.

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.

County zoning laws which unduly infringe upon 2nd Amendment rights are unconstitutional.

Correct.

tpaine  posted on  2016-05-18   17:29:08 ET  Reply   Trace   Private Reply  

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?

According to you, it doesn't. -- Which does NOT MEAN that a State like California can ignore the 2nd Amendment.

Why do you think it can?

As I said at my #19: "County zoning laws which unduly infringe upon 2nd Amendment rights are unconstitutional."

Good to see that on that point, we agree.

Other than that, you really should try to find another hobby. - - Constitutional law certainly seems to be causing you to become overwrought.

Of course. --- Anyone arguing the point is a mere simpleton.

More than 'mere', as we see by the repetitive postings of lengthy legalistic bull.

It's very amusing though, you must admit..

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?

According to you, it doesn't.

No, acccording to all law books and the U.S. Supreme Court.

You make the bullshit claim that the whole Bill of Rights has always applied to the States. Cornered liike a trappede rat, you can only bluster and try more bullshit. What is obvious, and wich you only make more obvious, is that you have no idea of what you are talking about.

-- Which does NOT MEAN that a State like California can ignore the 2nd Amendment.

Part of the 5th Amendment not applying does not mean that the 2nd Amendment does not apply. Only a shithead, such as yourself, would make that claim.

As I said at my #19: "County zoning laws which unduly infringe upon 2nd Amendment rights are unconstitutional."

Good to see that on that point, we agree.

The 2nd Amendment was fully incorporated in 2010 by McDonald. In 1791, it did not apply at all to States. Good to see that on that point, we agree.

Other than that, you really should try to find another hobby. - - Constitutional law certainly seems to be causing you to become overwrought.

Oh noes. I wouldn't think of it. You are not good for much but slapping around for amusement. Keep providing amusement, you are doing a fine impression of a hit me doll. Unfortunately, you do not know shit about the law and it is painfully obvious. I will try to make it as painfully obvious as posssible.

IF, AS YOU MAINTAIN, THE BILL OF RIGHTS APPLIES, AND HAS ALWAYS APPLIED TO THE STATES, WHY HAVE THE STATES ALWAYS BEEN FREE TO IGNORE THE GRAND JURY REQUIREMENT OF THE FIFTH AMENDMENT?

No answer, huh?

States are bound to honor our Constitution and its amendments, as specified in the document itself, and they always have been.

Of course, the States have always been free to ignore the Grand Jury requirement of the Fifth Amendment.

Poor little amusing tpaine can't seem to explain how that fits with his bullshit.

As I said at my #19: "County zoning laws which unduly infringe upon 2nd Amendment rights are unconstitutional."

Good to see that on that point, we agree.

The 2nd Amendment was fully incorporated in 2010 by McDonald. In 1791, it did not apply at all to States. Good to see that on that point, we agree.

The 2nd has always applied to the States, -- the 'incorporation' bull has just been used by statists to avoid compliance. - They, (and you) are losing.

Other than that, you really should try to find another hobby. - - Constitutional law certainly seems to be causing you to become overwrought.

Oh noes. I wouldn't think of it. You are not good for much but slapping around for amusement. Keep providing amusement, you are doing a fine impression of a hit me doll. Unfortunately, you do not know shit about the law and it is painfully obvious. I will try to make it as painfully obvious as posssible. ---- IF, AS YOU MAINTAIN, THE BILL OF RIGHTS APPLIES, AND HAS ALWAYS APPLIED TO THE STATES, WHY HAVE THE STATES ALWAYS BEEN FREE TO IGNORE THE GRAND JURY REQUIREMENT OF THE FIFTH AMENDMENT.

Why? --- I can only speculate, but I'd say this minor point was conceded to the statism freaks by wise constitutionalists.

Compromise is a necessary evil in our republican form of govt.

The 2nd has always applied to the States, -- the 'incorporation' bull has just been used by statists to avoid compliance. - They, (and you) are losing.

But you admit that part of the 5th Amendment has never applied and has been ignored by the States since 1791, and you are unable to explain why your bullshit theory of the constitution has been ignored for 215 years and counting.

You and your bullshit are a winner, as described by Oliver Wendell Holmes,

It is not enough for the knight of romance that you agree that his lady is a very nice girl—if you do not admit that she is the best that God ever made or will make, you must fight. There is in all men a demand for the superlative, so much so that the poor devil who has no other way of reaching it attains it by getting drunk. It seems to me that this demand is at the bottom of the philosopher’s effort to prove that truth is absolute and of the jurist’s search for criteria of universal validity which he collects under the head of natural law.

tpaine #40, imaginary constitutional law.

During a discussion with Nolu Chan, he asserted that an amendment repealing the 2nd could be ratified, and become a valid part of our Constitution. I contend such an amendment would be unconstitutional.

Only an idiot, such as tpaine, could find an amendment to the Constitution to be unconstitutional.

As for the whole Bill of Rights,

Barron v. Baltimore, 32 U.S. 243, 247-48 (1833)

Opinion of the Court, Chief Justice Marshall (7-0)

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.

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:

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.

Constitutional Law, 17th Ed., Kathleen M. Sullivan and Gerald Gunther, Foundation Press, 2000, Page 348:

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.

Constitutional Law, 3rd Edition, Erwin Chermerinsky, Aspen Publishers, 2009, page 525-26:

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.

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:

C. THE INCORPORATION DOCTRINE

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)

§ 11-2. Selective Incorporation of Bill of Rights Safeguards as a Partial Answer

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:

B. BILL OF RIGHTS

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.