Wednesday, January 26, 2022

Constitution Class Temecula Area: 2nd Amendment

The Temecula Valley Constitution Class led by Douglas V. Gibbs is currently being held off of Scott Road and Leon in Winchester.


Wednesdays, 5:00 pm, at the Rise Up Church, 32655 Flight Way, Winchester


Do not use GPS, it will send you into the dirt roads behind our location...


Take Scott Road to Pines Airpark Road (between Winchester Road and Leon Road along Scott Road), go up Pines Airpark Road (in is a narrow paved road) to the end. At the end you will see three crosses up on some rocks and to the left a gravel entrance onto the property. We are meeting in the building (through the sliding glass door) across from the entrance into the tent church.

Constitution Class Handout

Instructor: Douglas V. Gibbs

 

www.politicalpistachio.com

www.douglasvgibbs.com

www.constitutionassociation.com

 

 

Lesson 14

 

Militias and Standing Armies

 

2nd Amendment: Keep and Bear Arms

The 2nd Amendment does not give you the right to keep and bear arms. The 2nd Amendment does not protect you against the government from taking away your guns. Your rights are given to you by God, and protecting your rights is your responsibility. Like anything else you own, if you give away your rights, or allow someone to take them, they may still belong to you as an unalienable, God-given right, but you have given up all access to them, and can no longer exercise those rights.

 

In the Washington, D.C. v. Heller case in 2008 the Supreme Court of the United States determined that the right to bear arms is an individual right, as opposed to a collective right which would only allow the bearing of arms for the purpose of participating in government approved groups, such as law enforcement agencies.

 

During the early years of the United States under the United States Constitution, the Anti-Federalists feared the creation of a central government because they feared the federal government would become tyrannical, and take away people’s rights. Therefore, even though the Constitution in the first seven articles did not grant to the federal government any authority over gun rights, along with the rest of the rights enumerated in the Bill of Rights, those skeptical over the creation of a central government wanted an amendment that clarified the federal government had no authority to infringe on the right to keep and bear arms.

 

The States have Original Authority, meaning that all powers belonged to the States prior to the writing of the Constitution. The first seven articles of the document did not give to the federal government the authority to regulate firearms, therefore, any legislative power over gun rights is a State power. The 2nd Amendment simply confirms that. The argument then becomes about the potential tyranny of the States. If the 2nd Amendment does not apply to the States, what keeps the States from infringing on gun rights?

The State constitutions, and the people, hold the responsibility of restraining the States from infringing on the right to keep and bear arms. The Founding Fathers were not concerned with a tyranny of the States because the State governments are closer to the people, and therefore the people have fewer legal and political obstacles when acting to ensure the State governments do not infringe on individual rights.

 

Complacency, then, becomes our greatest enemy.

 

With freedom comes responsibility.

 

Understanding that the Framers expected their posterity to be informed problem-solvers, while recognizing that basic human nature would invite complacency and the rise of a tyrannical government, it becomes clear why the Founding Fathers put so much importance on gun rights.

 

In early American society the need to be armed was necessary for a number of reasons, including, but not limited to, protecting one’s property, facilitating a natural right of self-defense, participating in law enforcement, enabling people to participate in an organized militia system, deterring a tyrannical government, repelling invasion, suppressing insurrection, and hunting.

 

The right to keep and bear arms is not merely about protecting your home, or hunting, though those are important, too. The whole point of the 2nd Amendment is to protect us against all enemies, foreign and domestic, which could include a potentially oppressive central government.

 

Noah Webster in his “An Examination of the Leading Principles of the Federal Constitution,” in 1787 articulated the necessity for keeping and bearing arms clearly: “Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States."

 

Some will argue the 2nd Amendment does not apply to our current society because the militia is a thing of the past.

 

The National Guard now serves as the organized militia envisioned by the Founding Fathers, but an unorganized militia also exists.

 

Title 10 of the United States Code provides for both "organized" and "unorganized" civilian militias. While the organized militia is made up of members of the National Guard and Naval Militia, the unorganized militia is composed entirely of private individuals.

 

United States Code: Title 10 – Armed Forces, Subtitle A – General Military Law

Chapter 13 – The Militia:

 

Sec. 311. Militia: composition and classes

 

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

 

(b) The classes of the militia are -

 

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of

the militia who are not members of the National Guard or the Naval Militia.

 

Other than age, health, gender, or citizenship, there are no additional provisions for exemption from membership in the unorganized militia. While it is doubtful that it will ever be called to duty, the United States civilian militia does legally exist. The Founding Fathers would have likely included in the definition of unorganized militia, “All able-bodied citizens capable of fighting.”

 

McDonald v. City of Chicago (2010) challenged the City of Chicago’s ban on hand guns, bringing to the surface the debate over whether or not the 2nd Amendment only applies to the federal government.

 

The 5-4 Decision of the McDonald v. City of Chicago case by the U.S. Supreme Court holds the 2nd Amendment protects the right to keep and bear arms in all cities and States. The U.S. Supreme Court concluded that originally the 2nd Amendment applied only to the federal government, but it is in the opinion of the court that the 14th Amendment incorporates the Bill of Rights, therefore applying those amendments, and more specifically the 2nd Amendment, to the States.

 

The decision by the Supreme Court, in this case, makes all State laws on fire arms null and void. Applying the 2nd Amendment to the States means the 2nd Amendment is supreme over any and all State laws on firearms, and according to the 2nd Amendment, “the right to keep and bear arms shall not be infringed.” If “shall not be infringed” applies to both the federal government and the States governments, then all persons are allowed to possess a firearm. The words, “shall not be infringed” carries no exceptions.

 

The reason the 2nd Amendment is absolute in its language is because it was intended to only apply to the federal government. The federal government shall not infringe on the right to keep and bear arms in any way, but the States retain the authority to regulate guns as necessary based on the needs and allowances of the local electorate.

 

The U.S. Constitution applies to the federal government except where specifically noted otherwise.

 

In reference to McDonald v. Chicago, I am uneasy anytime the federal government tells a city or state what they have to do, even if on the surface it is for a good cause.

 

If we give the federal government the right to tell cities they have to allow gun ownership, what stops them from doing the opposite later? This case created a precedent of allowing the federal government to dictate to the States and cities what they have to do, and that kind of federal intrusion constitutes great danger to State Sovereignty.

 

Breaking down the language used in the 2nd Amendment assists in clarifying what the original intent was.

 

The 2nd Amendment begins, “A well regulated Militia.” The immediate understanding of that phrase by the average American in today’s culture recognizes it as meaning, “A militia under the control of the government,” or “regulated by government agencies,” or “managed by federal law.”

 

All of the above definitions are wrong.

 

As discussed regarding the Commerce Clause in Article I, Section 8, the word “regulated” does not mean “controlled or restricted by government.” The definition used by the Framers, and the one that fits best with the context of the period, and the principles of the Constitution, can be found in the 1828 Webster Dictionary. Webster defined regulated as: “To put in good order.” Some historians state that the word “regulate” in the 18th Century meant “To make regular.” The word “restrict” was not used in the 1828 definition until the third and final definition of “regulated,” revealing that today’s most common definition was the “least used” definition during the time of the writing of the United States Constitution.

 

Since “regulate” did not mean “to control and restrict,” but instead meant “to put in good order,” that means a well regulated militia is one that is in good order.

 

The need to have a militia in good order makes sense when one considers that during the Revolutionary War the militia was not in good order. The muskets were all different sizes, often the clothing of some members of the militia was tattered, and many didn’t even have shoes.

 

To put the militia in good order, Congress was required to create standards for the militia to follow. The authority to Congress regarding this power is revealed in Article I, Section 8, Clause 16, where the Constitution says, “The Congress shall have Power. . . To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.

 

The next part of the 2nd Amendment reveals that a well regulated militia is “necessary to the security of a free State.”

 

The word State, in that instance, means “individual, autonomous, sovereign State.” In other words, a well regulated militia is necessary to the security of a free Massachusetts, a free Pennsylvania, a free Virginia, a free New York, a free Ohio, a free California, and so on.

 

Necessary to the security of a free State.” A militia is necessary, not just recommended, to the security of a free State. Security against whom? A foreign invader? Isn’t that what the standing army was supposed to be for? Why would States need militias, capable of being called up by the governor of the State, for their “security,” and to ensure that security is for them to remain a “free State?”

 

Foreign enemies were a concern, but not as much of a concern as a tyrannical central government. Thomas Jefferson so distrusted a central government that he suggested there would be a bloody revolution every twenty years.

 

… can history produce an instance of a rebellion so honourably conducted? I say nothing of it's motives. They were founded in ignorance, not wickedness. God forbid we should ever be 20 years without such a rebellion. The people can not be all, and always, well informed. The part which is wrong will be discontented in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions it is a lethargy, the forerunner of death to the public liberty. We have had 13 states independant 11 years. There has been one rebellion. That comes to one rebellion in a century and a half for each state. What country ever existed a century and a half without a rebellion? And what country can preserve it's liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is it's natural manure.” -- Thomas Jefferson to William Stephens Smith, Paris, 13 Nov. 1787

 

The Declaration of Independence also states that the people have the right to stand up against their government should it become tyrannical. In the second paragraph of the Declaration of Independence it reads:

 

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

 

The right to alter or abolish a tyrannical government walks hand in hand with the right to keep and bear arms. How could it ever be logical that the right to keep and bear arms could ever be influenced or restricted by the very government that that right exists to protect the people against in the first place?

 

Terms:

Arms - Weapons, firearms; a gun that may be used for protection of property or as part of a militia.

 

Collective Right - Rights held by a group, rather than its members separately.

 

Declaration of Independence - The unanimous formal Declaration of the thirteen united States of America declaring their freedom from Great Britain, dated July 4, 1776.

 

Individual Right - Rights held by individuals within a particular group.

 

Organized Militia - A well trained militia that is in good order that operates under the authority of Congress, able to be called into actual service by the executive authority of a State, or by the Congress of the United States; National Guard, Naval Militia, State Militias.

 

Original Authority - Principal agent holding legal authority; initial power to make or enforce laws; the root authority in government.

 

Regulated - To make regular; to put in good order.

 

State Sovereignty - The individual autonomy of the several states; strong local government was considered the key to freedom; a limited government is the essence of liberty.

 

Unorganized Militia - Able-bodied citizens of the United States, or those who have made a declaration of intention to become citizens of the United States, who are members of the militia who are not members of the National Guard or the Naval Militia.

 

 

 

Questions for Discussion:

 

1. In your opinion, what are the most important reasons for the right to bear arms?

 

2. If the courts, or the federal government, were to redefine gun rights as being a collective right, how would that affect our individual right to keep and bear arms?

 

3. Is a militia necessary in today’s society? Why?

 

4. Why did the Founding Fathers see it as necessary to prohibit the federal government from any authority to prohibit the right to keep and bear arms, but felt it necessary to allow the States full authority over gun regulations?

 

5. In McDonald v. Chicago the Supreme Court ruled that the 2nd Amendment applies to cities and States. How does that open up the opportunity for the federal government to further regulate firearms?

 

 

Resources:

 

10 USC § 311 - Militia: Composition and Classes, Cornell University

Law School: http://www.law.cornell.edu/uscode/text/10/311

 

McDonald v. City of Chicago, United States Supreme Court:

http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf

 

Noah Webster, An Examination of the Leading Principles of the Federal

Constitution (Philadelphia 1787), The Federalist Papers: http://www.thefederalistpapers.org/founders/noah-webster/noah-webster-an-examination-of-the-leading-principles-of-the-federal-constitution-philadelphia-1787

 

The Tree of Liberty Quotation, Monticello - TH: Jefferson Encyclopedia:

http://wiki.monticello.org/mediawiki/index.php/The_tree_of_liberty...(Quotation)

 

Washington, D.C. v. Heller, Supreme Court of the United States Blog:

http://www.scotusblog.com/case-files/cases/dc-v-heller/

 

 

 

 

 

 

 

 

 

3rd Amendment: Quartering

 

The Founding Fathers feared a centralized government with a powerful military. One of the final straws that began the road to the American Revolution was the Quartering Act of 1765 where the colonists became required to house and feed the British troops they despised. The Quartering Act enabled the British Empire to exercise greater control over the populace. It was also known as one of the Intolerable Acts.

 

The Quartering Act served as a major reason for the writing of the 3rd Amendment, which reads: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”

 

Tyrannical governmental systems use unwarranted influence through military means. To guard against the potential for the disastrous rise of misplaced power, the Framer’s concerns about standing armies became evident in the 3rd Amendment.

 

To help the populace protect themselves, and be able to enforce the 3rd Amendment, in case the federal government violated the clause, the Founding Fathers also gave us the 2nd Amendment: “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 concept of a Militia that is not a federal army is the realization that the United States will not be one where there is a standing army that can be used against its citizens. Article I, Section 8, Clause 12 gives the Congress the power to raise and support armies, but limits them to no more than two years funding.

 

When a military arm of a tyrannical government can compel the citizenry to house the military machinery of defense, a police state is present and liberty is at risk. Such was the reasoning behind the 3rd Amendment.

 

Until the Revolutionary War, the American States had no military, and the militias were populated by the colonists. The Constitution gave the U.S. Government the authority to build a military for the defense of the union. A military establishment, in the minds of the Founders, was a potentially dangerous thing. The Founding Fathers desired to protect the union, but did not desire that the American military become an authoritarian tool of a potentially tyrannical federal government.

 

Terms:

Intolerable Acts - A series of laws passed by the British Parliament against the American Colonies in March of 1774. The British Parliament referred to these laws as the Coercive Acts. The acts were primarily designed to punish the colony of Massachusetts for defying British policies, and more specifically, for the Boston Tea Party. The Intolerable Acts caused outrage among the Americans, which led to the calling of the First Continental Congress in September of 1774. Among the actions taken by this united Congress was a boycott of British goods. The Intolerable Acts were called “impolitic, unjust, and cruel,” and included the Boston Port Act, the Massachusetts Government Act, the Quartering Act, the Quebec Act, and the Administration of Justice Act.

 

Police State - A system where the government exercises rigid and repressive controls through strong law enforcement or military control.

 

Quartering Act of 1765 - Act passed by the British Parliament in 1765 that stated that British troops in America would be housed in barracks and in public houses unless and until the number of troops overwhelmed the facilities, at which time, the troops could be housed in private commercial property, such as inns and stable, and in uninhabited homes and barns. The quartering would be without compensation and, in fact, owners would be required to provide soldiers with certain necessities such as food, liquor, salt, and bedding, also without compensation.

 

Standing Army - A professional permanent army composed of full-time career soldiers who are not disbanded during times of peace.

 

 

Questions for Discussion:

 

1. Why did the British pass the Quartering Act of 1765?

 

2. How did the Americans respond to the Intolerable Acts?

 

3. Why did the Founding Fathers have concerns regarding standing armies?

 

4. How does militias protect against the formation of a police state?

 

 

Resources:

Joseph Andrews, A Guide for Learning and Teaching The Declaration of

Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).

 

Madison’s Notes Constitutional Convention, Avalon Project, Yale

University: http://avalon.law.yale.edu/subject_menus/debcont.asp

 

Philip B. Kurland and Ralph Lerner, The Founder’s Constitution –

Volume Five - Amendments I-XII; Indianapolis: Liberty Fund (1987).

 

Quartering Act, U.S. Constitution Online:

http://www.usconstitution.net/quarteringact.html

 

The Declaration of Rights and Grievances, U.S. Constitution Online:

http://www.usconstitution.net/intol.html

 

 

Copyright 2015 Douglas V. Gibbs

Tuesday, January 25, 2022

San Juan Capistrano Class: Introduction to the Bill of Rights

San Juan Capistrano, Tuesday, 6:00 pm, Selma's Chicago Pizzeria, 31781 Camino Capistrano, San Juan Capistrano



Constitution Class Handout

Instructor: Douglas V. Gibbs

 

www.politicalpistachio.com

www.douglasvgibbs.com

www.constitutionassociation.com

 

 

Lesson 12

Bill of Rights: Introduction to, and Incorporation of

 

Introduction to the Bill of Rights

The Bill of Rights does not guarantee your rights, nor was it designed to allow the federal government to protect your rights. The language used in the first ten amendments is clear. The 1st Amendment begins, “Congress shall make no law…” The 2nd Amendment ends with the words, “…shall not be infringed.” The 3rd Amendment begins, “No Soldier shall…” The key phrase in the 4th Amendment is “shall not be violated.” The entire Bill of Rights was designed to confirm what the first seven articles had already established. The federal government was granted only certain authorities, and for the purpose of clarity, the Bill of Rights was written to reinforce the concept that the federal government has no business infringing upon the rights of the people. The federal government is not charged with protecting those rights, or guaranteeing those rights, anywhere in the Bill of Rights. The first ten amendments were written to tell the federal government, “Hands off, do not touch, thou shalt not.”

 

The concept that the federal government exists to guarantee our rights, or protect our rights, emerged after the ratification of the 14th Amendment. The Civil War Amendment tasked the federal government with ensuring the newly emancipated slaves were treated fairly, and that their rights were protected – even at the State level. In an effort to capitalize on that idea, the courts got involved to ensure that the former slave States behaved. The southern States, the North was convinced, could not be trusted, and often the South confirmed the lack of confidence the Union States harbored with laws designed to get around the new restrictions placed upon them.

 

After the American Civil War, the three amendments proposed and ratified to protect the emancipated slaves were specifically designed for the purpose of ensuring the newly freed slaves were treated equally in the eyes of the law. Statism, however, seized upon the ideas planted by Congressman John Bingham, and through the courts worked to weave an intricate tapestry that would change the culture of the United States from a union of voluntary members, to a nation of states joined in an unbreakable union. The country no longer resembled the union of sovereign states it had once been, and instead became a nation held together by the statist consequences of the ravages of war.

 

The federal government telling States what they can and can’t do regarding our rights opens a Pandora’s Box the framers of the Constitution never intended to be breached. By allowing the federal government to dictate to the States what they can and can’t do regarding rights, even with the best of intentions, the precedent is established allowing federal control. A federal government that can force a State to behave in an acceptable manner can later dictate to a State to follow a federal mandate designed to reduce your access to your rights.

 

As President Gerald Ford once wisely said, “A government big enough to give you everything you want is a government big enough to take from you everything you have.”

 

A significant segment of the Founding Fathers believed the Bill of Rights to be unnecessary. The first seven articles of the U.S. Constitution were written in such a way that the concerns of the Anti-Federalists had been addressed, but they still feared that the federal government would compromise the natural rights of the citizens if a Bill of Rights was not included in the Constitution.

 

The Constitution was written in a manner that allowed the new federal government only the authorities granted to it by the Law of the Land. Regarding arms, for example, the possession of guns was never an issue granted to the federal government in the first seven articles of the U.S. Constitution, therefore the federal government had no authority to restrict guns in any way, shape, or form. The Anti-Federalists, however, did not believe the federal government would abide by the limitation of authorities placed on the United States Government, and demanded that a Bill of Rights be written. Failure to provide a Bill of Rights, indicated the Anti-Federalists, would result in a failure of those States dominated by Anti-Federalists to ratify the new Constitution.

 

The Framers of the Constitution, understanding that without the critical approval of the Anti-Federalists, the new Constitution would never be ratified, agreed to include a Bill of Rights. James Madison was asked to gather the amendments to be proposed and potentially ratified by the States, and use them to write a Bill of Rights.

 

Originally, there were a large number of amendments proposed, but the final proposal that went to the States for ratification was narrowed down to twelve amendments. Only ten were ratified. Of the remaining two, one regarding apportionment remains unratified, and the other became the Twenty-Seventh Amendment in 1992.

 

The debates over the adoption of the Constitution found the Anti-Federalists fearful that as drafted, the Constitution created a central government that may have the opportunity to become a tyranny. These fears were based on the memory of the British violation of basic civil rights before and during the American Revolution. With past British tyranny as a frame of reference, the Anti-Federalists demanded that a "bill of rights" be written that would clarify without question the immunities of individual citizens. Though the amendments of the Bill of Rights were not proposed until 1789, several state conventions during their ratification conventions ratified the Constitution with the understanding that the amendments would be offered.

 

One of the fears regarding the proposal of the Bill of Rights was that by trying to protect specific rights, it might imply that any unmentioned rights would not be protected. It was believed by many that as a result, the Bill of Rights was actually unnecessary, for in the British system of common law natural rights were not defined, nor quantified. Adding a Bill of Rights to the Constitution may actually limit the rights of the people to those listed in the Constitution. As a result of this argument, included in the Bill of Rights is the Ninth Amendment, which indicates that rights not enumerated would also be protected.

 

Another argument against the Bill of Rights is that the ten amendments muddy the waters of the Constitution, because the first seven articles were designed to grant authorities to the federal government, and if an authority is not granted, the federal government does not have that power. The Bill of Rights tells the federal government what it cannot do. This enables those who oppose the Constitution to claim that the Constitution does not only grant express powers. By focusing on the Bill of Rights, the opposition responds to constitutional challenges with the question, “Where in the Constitution does it say the federal government can’t do that?” Considering the Bill of Rights was not even necessary, this provides unnecessary ammunition to those that oppose the Constitution.

Terms:

Anti-Federalists - Opposed to formation of a federal government, particularly by adoption of the Constitution of the United States.

 

Arms - Weapons, firearms; a gun that may be used for protection of property or as part of a militia.

 

Bill of Rights - The first ten amendments of the U.S. Constitution; a formal summary of those rights and liberties considered essential to a people or group of people.

 

Common Law - The part of English law that is derived from custom and judicial precedent rather than statutes, able to be changed by the whims of the governed, or their representatives.

 

Enumerated - Counted or told, number by number; reckoned or mentioned by distinct particulars.

 

Questions for Discussion:

  1. Why does the Constitution offer the opportunity for both oaths, and affirmations?

2.   Why did some of the Founding Fathers consider the Bill of Rights unnecessary?

3.   What did the Anti-Federalists think of the creation of the federal government? Why?

4.  Why were the Founding Fathers willing to add the Bill of Rights even though they believed the

      amendments to be unnecessary?

Resources:

Joseph Andrews, A Guide for Learning and Teaching The Declaration of

Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).

 

Philip B. Kurland and Ralph Lerner, The Founder’s Constitution –

Volume Five – Amendments 1-12; Indianapolis: Liberty Fund (1987)

 

The Charters of Freedom: The Bill of Rights, National Archives and

Records Administration: http://archives.gov/exhibits/charters/bill_of_rights.html

 

Incorporation of the Bill of Rights

The Bill of Rights was originally intended to be applied only to the federal government. Even the most ardent opponent to the originalist view of the Constitution concedes that it is commonly understood that originally the Bill of Rights was not intended to apply to the States whatsoever. The text of the U.S. Constitution does not necessarily clearly exhibit that the Bill of Rights was only intended to apply to the federal government, but a deep study of the text of the first ten amendments, and the various writings of the Founding Fathers on the topic, reveals without a doubt that the Bill of Rights was indeed originally intended to only apply to the federal government.

 

Though even the most ardent opponent of the United States Constitution will admit that the Bill of Rights was originally intended to only apply to the federal government, the rule of inapplicability to the States was abandoned by statists after 1868, when it became argued that the 14th Amendment changed this rule, and served to extend most of the Bill of Rights to the States.

 

The section of the 14th Amendment that has been interpreted to extend the Bill of Rights to the States comes from the second sentence of Section 1 of the 14th Amendment, which reads:

 

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

 

Through a series of court rulings, the Supreme Court has changed the Constitution by applying parts of the Bill of Rights to the States. The process over the time period since the ratification of the 14th Amendment which works to apply the Bill of Rights to the States through court rulings and written opinions is called “The Incorporation of the Bill of Rights.”

 

The Bill of Rights was originally not meant to be a guarantee of individual freedoms at all, but a limitation of federal authority against our God given rights. In other words, the Bill of Rights was not written for the people, but for the federal government as a means of telling the federal government what it cannot do in regards to our unalienable rights.

 

Why not apply these amendments to the States as well?

 

The States already had a Bill of Rights in their own State Constitutions (and those that did not have a constitution yet, did include a Bill of Rights later). The Founding Fathers were confident that the people of the States could control their own State officials, and would be involved in their local governments. The people did not fear their local governments acting in a tyrannical manner similar to the potential of a centralized government system. Their fears were of the new and distant central government.

 

Originally, parts of the first amendments proposed by James Madison did in fact address the States, seeking to limit the State governments with provisions such as, "No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases." The parts of the Bill of Rights that sought to be applied to the powers of the States, however, were not approved by Congress, and therefore were not a part of the proposed amendments to the States.

 

The Bill of Rights was understood, at its ratification, to be a bar on the actions of the federal government. Prior to the incorporation of the Bill of Rights to the States by the courts as based on their interpretation of the 14th Amendment, the Bill of Rights did not apply to the States, and was never intended to be fully applied to the States.

The argument used, despite original intent, that the Bill of Rights must also apply to the States is based more on philosophy, than historical evidence. One of the philosophical standpoints used is that if the specific rights given in the Bill of Rights are based on the more general rights to life, liberty, and property which in turn are considered to be God-given and unalienable, then State governments do not have the authority to infringe on those rights any more than can the federal government.

 

The argument, however, simply suggests that the Bill of Rights ought to apply at the State level, not that it originally did.

 

If the Bill of Rights originally only applied to the Federal Government, and over time has changed to be something that was applicable on the State level through court decisions, the reality is that the Constitution itself has never allowed the Bill of Rights to be applied to the States. The change was done by judicial means, meaning that the Constitution has been changed by judicial activism. The problem, however, is that according to the Constitution, the only way to change the Constitution is through an amendment process. Therefore, the incorporation of the Bill of Rights to the States occurred unconstitutionally.


This returns us to the argument that the 14th Amendment is the source and authority of the incorporation of the Bill of Rights to the States. The Supreme Court's first ruling regarding the scope of the 14th Amendment, and if the amendment enables the Bill of Rights to be applied to the States, was rendered in the Slaughterhouse Cases just five years after the ratification of the 14th Amendment in 1868. A five to four vote by the high court interpreted the Privileges and Immunities Clause to be the authority they needed to enforce The Bill of Rights against the States. Subsequent cases also used the 14th Amendment as an authority for incorporation. During the early twentieth century a number of court cases, using the arguments referencing the 14th Amendment, began selectively incorporating some of the specific provisions of the Bill of Rights while rejecting the incorporation of others.

 

The courts, through this process of incorporating The Bill of Rights to the States, have changed the Constitution through unconstitutional means, and against original intent. As originally intended, all provisions in the U.S. Constitution apply to the federal government, unless otherwise noted. The Bill of Rights was originally intended to apply only to the federal government, and if we are to remain in line with the original intent of the Founding Fathers, State sovereignty must remain protected by that original intent.

 

Congressman John A. Bingham of Ohio was the primary author of the first section of the 14th amendment, and it was his personal intention the Bill of Rights be applied to the States as well. His argument was that it was necessary in order to secure the civil rights of the newly appointed slaves. However, most of the representatives during the five months of debate on the floor of Congress argued against incorporating the Bill of Rights to the States, and so when the amendment was agreed upon for proposal, the majority of those involved intended for the 14th Amendment to not influence how the Bill of Rights was applied. In the beginning, the courts ruled that the Amendment did not extend the Bill of Rights to the States. It was after the realization that Black Codes were emerging in the South that the courts decided for the purpose of protecting the civil rights of the emancipated slaves, they would begin to apply parts of the Bill of Rights to the States.

Terms:

Black Codes - Laws put in place in the United States after the Civil War with the effect of limiting the basic human rights and civil liberties of blacks.

 

Incorporation of the Bill of Rights - The process through court rulings based on the interpretation of the 14th Amendment to apply the Bill of Rights to the States.

 

Judicial Activism - When judges violate the Separation of Powers through their rulings; when a judge rules legislatively by modifying or striking down a law using the unconstitutional authority of judicial review.

 

Original Intent - Original meaning of the United States Constitution as intended by the framers during the Federal Convention of 1787, and the subsequent State Ratification Conventions.

 

Originalist view of the Constitution - View that the Constitution as written should be interpreted in a manner consistent with what was meant by those who drafted and   ratified it.

 

Questions for Discussion:

 

1.   Why is the originalist view of the Constitution so important?

 

2.   How have Statists changed the Constitution through the courts over the last two hundred years?

 

3.   What is the only legal way to change the Constitution?

 

4.   Why is the Bill of Rights not a guarantee of individual freedoms?

 

5.   From where do our rights come from?

 

6.   How did the Black Codes play a part in the incorporation of the Bill of Rights?

 

Resources:

 

14th Amendment to the U.S. Constitution: Civil Rights (1868), Our

Documents dot gov: http://www.ourdocuments.gov/doc.php?flash=true&doc=43

 

Intent of the Fourteenth Amendment was to Protect All Rights (argument

supporting incorporation of the Bill of Rights to the States), Constitution dot org (2000): http://www.constitution.org/col/intent_14th.htm

 

Joseph Andrews, A Guide for Learning and Teaching The Declaration of

Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).

 

Philip B. Kurland and Ralph Lerner, The Founder’s Constitution –

Volume Five – Amendments 1-12; Indianapolis: Liberty Fund (1987)

 

Richard L. Aynes, On Misreading John Bingham and the Fourteenth

Amendment (1993): http://www.constitution.org/lrev/aynes_14th.htm

 

The Fourteenth Amendment and Incorporation, The Tenth Amendment

Center (2010): http://newyork.tenthamendmentcenter.com/2010/05/the-14th-amendment-and-incorporation/

 

To Whom Does The Bill Of Rights Apply?, Lew Rockwell dot com

(2005): http://www.lewrockwell.com/browne/browne27.html

 

What is the Bill of Rights?, About dot com Civil Liberties (argument

supporting incorporation of Bill of Rights to the States: http://civilliberty.about.com/od/historyprofiles/f/what_is_bill.htm

Copyright 2015 Douglas V. Gibbs