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@DwayneStovall @TaskForce16 @OnTheMark
Well said DwayneStoval...the historical agrees.
"Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence."
~ John Adams, 'Argument in Defense of the Soldiers in the Boston Massacre Trials,' December 1770
2 years ago on Privileges and Immunities: An Overview of the 14th
@TaskForce16 Read the preamble of the Bill of Rights, it makes it clear that the People of the several States wished to ensure the authority granted was not stretched beyond what was delegated. State constitutions already protected the People's right to bare arms. The People sought to clarify that there is to be no misunderstanding that the Federal government, as an agent of the People of the several States in enumerated functions, could not infringe on that right and the others listed in Amendments 1 - 10.
2 years, 3 months ago on Privileges and Immunities: An Overview of the 14th
@onetenther The most popular early explanation seems to come from Associate Justice Bushrod Washington in an 1823 court case. However, there are problems w/his explanation (mostly that he simply used his own experience and understanding rather than the ratifiers or public understanding of the clause). Also, to understand 1787 "P&I" may be different than 1866 "P&I".
Rob Natelson has a VERY good scholarly article here: http://constitution.i2i.org/sources-for-constitutional-scholars/privileges-and-immunities/
In 1823, in Corfield v. Coryell Justice Bushrod Washington's (yes a relative of GW) provided listing of the "privileges and immunities" enjoyed by citizens of the United States:
“The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.
The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each state, in every other state, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old articles of confederation) "the better to secure and perpetuate mutual friendship and intercourse among the people of the different states of the Union."
18 MINUTES AGO
@Bob Greenslade "We need to stop using and start rejecting statements like “First Amendment Right of free speech” or “Constitutional right of free speech.” We have the right of free speech and the First Amendment simply placed a constitutional prohibition or restraint on the powers of the federal government concerning the right. The Amendment did not grant us this right."Absolutely, 100% correct! We HAVE to start referring to these as PROTECTIONS of rights. These rights existed before the BoR, exist during its validity, and will exist after the United States ceases to exist.
2 years, 4 months ago on Bill of Rights: The Founders' Vision is Dead and Gone
@cptbanjo "It's as if he believes the States should be able to do anything they want to, as long as there's no explicit prohibition in the Constitution."Please don't forget that the States had Constitutions before the United States had a Constitution, or even a ratified Articles of Confederation. Those documents contained the necessary protections upon which the States would later demand be added to the United States Constitution during its ratification.
As for incorporation, even the drafter of the the portion of amendment incorporationists claim makes the BoR apply to the States reinforces that it was only intended to ensure States were complying with the Constitution's "privileges and immunities" clause (which existed BEFORE and is uniquely separate from the BoR). It was not intended to add anything new according to Mr. Bingham...the individual often cited as the one intending incorporation.
http://www.federalistblog.us/h-r-report-no-22-bingham/"The clause of the fourteenth amendment, “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” does not, in the opinion of the committee, refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four, section two. The fourteenth, it is believed, did not add to the privileges or immunities before mentioned, but was deemed necessary for their enforcement as an express limitation upon the powers of the States. It had been judicially determined that the first eight articles of amendment of the Constitution were not limitations on the power of the States, and it was apprehended that the same might be held of the provision of the second section, fourth article."
Great list! Amazingly, I have read 8 of 10. Will have to get Mike Maharrey's and Louis Fisher's books.
2 years, 4 months ago on Top 10 Books for Tenthers
@cptbanjo Read Raoul Berger's "Government By Judiciary."
@akmark How does full faith and credit clause apply?
3 years, 4 months ago on Aborting Guns?
I find it amazing that a liberal would ever cite the 10th Amendment. The 10th either always applies (the truth) or it never applies...it's like being sort of pregnant. What's the right word...hypocrite? I have mixed feelings about the Right-to-Carry bill. In the end it comes down the fact that all of the first ten amendments only apply to the federal government, per the BOR's preamble, except for due process clause of the 5th which is enforceable against the states by the 14th. I reject selective incorporation by the courts...there is no legislative authority for incorporation if one reads the 14th's Congressional and ratification literature. There is no authority for the federal government to force a state to accept any gun law unless a state is violating the due process clause or privileges and immunities of its citizens (meaning non-uniform laws for different citizens).