From: "Clayton E. Cramer" <clayton_cramer@hotmail.com>
Newsgroups: talk.politics.guns
Subject: Re: "Shall Not Be Infringed"
Date: Thu, 30 Jul 1998 12:04:07 -0700

Ernie Alston wrote:

>>Try again.  Incorporation was stated as the goal by at least membersof
>>Congress when they debated the 14th Amendment, and even opponents of the 14th
>>argued that it would incorporate the 2nd against the states.
>
>  Maybe the misguided and questionable goals of a few (Namely Bingham
>  and Howard) but hardly the goal of the 39th Congress.

Bingham and Howard, however, were floor managers for the 14th Amendment.Their
views deserve some weight.  As Stephen Halbrook has demonstrated,
even opponents agreed that the 14th Amendment would prohibit the states
from disarming blacks (though of course expressed in the most absurd and
extreme form, such as a "drunken Negro flourishing a pistol").

> Those that did make this claim professed it was via the Privileges and
> Immunities clause the BOR's were applied to the States. One claimed
> it was via Article IV's P & I clause (ie it applied the BOR's to the
> States prior to the BOR's existence.).

Indeed, this is a view that had been held by a number of people before
Barron v. Baltimore, and even some state supreme courts continued to
take that view after Barron v. Baltimore.

>   However when examples of privileges the P & I clause protected
>   were listed during the debates, the Bill of Rights protections were
>   very much absent.
>
>   "What are priviliges and immunities ? Why sir, all the rights we
>    have  under the laws of the country are embraced under the
>    defintion of privileges and immunites. The right to vote is a
>    privilege. The right to marry is a privilege. The right to
>    contract is a privilege. The right to be a juror is a
>    privilege...."
>
>    Sen Rogers (NJ) Cong Globe 39th Congress 1st session at 2539 (1866).
>
>   No-one added any of the Bill of Rights protections, or disagreed
>   with Rogers that these were the type of rights intended to be
>   protected by the P & I clause.

No one?  You are mistaken.  The noted Reconstruction historian Eric Foner
recently wrote:

    The states, declared Michigan Sen. Jacob Howard, who
    guided the Amendment to passage in the Senate, could
    no longer infringe on the liberties the Bill of Rights had
    secured against federal violation; henceforth, they must
    respect `the personal rights guaranteed and secured by
    the first eight Amendments.'  [Rep. John] Bingham said
    much the same thing in the House.  Some portions of the
    Bill of Rights were of little moment in 1866.  But it is
    abundantly clear that Republicans wished to give
    constitutional sanction to states' obligation to respect
    such key provisions as freedom of speech, the right to
    bear arms, trial by impartial jury, and protection against
    cruel and unusual punishment and unreasonable search
    and seizure.  The Freedmen's Bureau had already taken
    steps to protect these rights, and the Amendment was
    deemed necessary, in part, precisely because every
    one of them was being systematically violated in the
    South in 1866. [Eric Foner, Reconstruction, (New York:
    Harper & Row, 1988),  258-9]


>   There's also the conflict with the Due Process clause your view
>   has. The 14th's Due Process clause, is worded exactly like the 5th
>   Amendment.
>
>   The 14th's farmers would not have bothered with this wording, if
>   they felt or intended another clause to apply the BOR's to the States.
>   The Due Process's wording is like the 5th's clearly to apply 5th
>   Amendment protections against State laws because no such protections
>   against the State existed anywhere else in the Constitution.

That's a very interesting and persuasive point.  I would point out,
however, that there are often strange little additions to amendments in
this period that have to be called "belt and suspenders" approaches.  For
example, why does Am. XIV, sec. 5 say: "The Congress shall have power to
enforce, by appropriate legislation, the provisions of this article."
It's sort of redundant, isn't it?  It's in there, and in Am. XIII an XV
because there was some question in the minds of some as to whether
Congress actually had authority to pass laws to enforce these amendments
without an explicit statement.  Perhaps (and I freely admit this is an
hypothesis) having due process in directly as well as indirectly was an
attempt to make sure that no one did what was actually done by the
Supreme Court -- emasculate the P&I section, and leave nothing left to
work with.

>   There's also the continuance of the State Judicial proceedings and
>   laws that would have been in violation of the 14th per your view.

Would you care to explain what you mean by this?

>   The failure of petitioners to apply the 14th in cases where it
>   would have been clearly applicable (see Twitchell v Penn 1869).

Of course, there are cases where petitioners seek to apply the 14th's P&I
clause, exactly as I say.  For example, Dabbs v. State, 39 Ark.  353,
354, 355, 43 Am. Rep. 275 (1882).  Or U.S. v. Cruikshank (1876), where
the Supreme Court took your view that P&I only applied to attributes of
*national* citizenship, in order to free some Klansmen.

>   Okay sure, the most significant change in the Constitution since
>   the Bill of Rights, having significant effect in every State in
>   the Union. And yet Hardly a word about this intention was uttered
>   during the State Conventions ??
>
>    You try again.

Sorry, but there's enough there that historians with no axe to grind on
the RKBA issue (like Eric Foner) don't even consider it questionable
anymore.

> >What the Supreme Court "dreamed up" was selective incorporation,
> >not incorporation.
>
>  They dreamed up both.

No, Bingham and Howard, at least, believed in full incorporation during
Congressional debates, so the Supreme Court didn't "dream" it up.

>  The Supreme Court's incorporation is via the Due Process clause, not the
>  Privileges and immunities claimed by those who you refer to.

Oh, I know that it's via due process, not P&I.  Using due process is
so much more elastic, you see.  It can mean almost anything you want.
P&I would be a bit more limiting to the courts.

From: "Clayton E. Cramer" <clayton_cramer@hotmail.com>
Newsgroups: talk.politics.guns
Subject: Re: "Shall Not Be Infringed"
Date: Thu, 30 Jul 1998 12:10:22 -0700

Ernie Alston wrote:

> In article <35BF7732.3ACD19C5@hotmail.com>, Clayton says...
>
>>Try again.  Incorporation was stated as the goal by at least members of
>>Congress when they debated the 14th Amendment, and even opponents of the 14th
>>argued that it would incorporate the 2nd against the states.
>
>  Maybe the misguided and questionable goals of a few (Namely Bingham
>  and Howard) but hardly the goal of the 39th Congress.
>
> Those that did make this claim professed it was via the Privileges and
> Immunities clause the BOR's were applied to the States. One claimed
>  it was via Article IV's P & I clause (ie it applied the BOR's to the
>  States prior to the BOR's existence.).
>
>   However when examples of privileges the P & I clause protected
>   were listed during the debates, the Bill of Rights protections were
>   very much absent.
>
>   "What are priviliges and immunities ? Why sir, all the rights we
>    have  under the laws of the country are embraced under the
>    defintion of privileges and immunites. The right to vote is a
>    privilege. The right to marry is a privilege. The right to
>    contract is a privilege. The right to be a juror is a
>    privilege...."
>
>    Sen Rogers (NJ) Cong Globe 39th Congress 1st session at 2539 (1866).

Of course, even if "privileges and immunities" didn't include the Bill of
Rights, you still lose this one.

An excerpt from my book _For the Defense of Themselves and the State_
(Praeger, 1994):

The first federal decision to discuss the right to keep and bear arms is
a well-known case though it is not well-known for its relevance to
the Second Amendment Dred Scott v. Sandford (1857).  The
goal of the suit was to establish that slaves taken into free states
were thus free.  But the issue of whether free blacks were citizens,
and could therefore sue in the Federal courts, had to be resolved
first.   To that end, it sought to establish that free blacks were
citizens of the United States.  Justice Taney, writing for the
majority, rejected this position:

    It would give to persons of the negro race, who were
    recognized as citizens in any one State of the Union, the
    right to enter every other State whenever they pleased,
    singly or in companies, without pass or passport, and
    without obstruction, to sojourn there as long as they
    pleased, to go where they pleased at every hour of
    the day or night without molestation, unless they committed
    some violation of law for which a white man would be
    punished; and it would give them the full liberty of speech
    in public and in private upon all subjects upon which
    its own citizens might speak; to hold public meetings
    upon political affairs, and *to keep and carry arms
    wherever they went*.  And all of this would be done
    in the face of the subject race of the same color, both
    free and slaves, inevitably producing discontent and
    insubordination among them, and endangering the
    peace and safety of the State.  [emphasis added]

Justice Taney then held that because of the disruption it would cause
in slave states for free blacks to be citizens of the United States, that
`It is impossible ... that the great men of the slaveholding States, who
took so large a share in framing the Constitution of the United States ...
could have been so forgetful or regardless of their own safety,' in
intending that free blacks be citizens.[Dred Scott v. Sandford, 60
U.S. 393, 417 (1857)]

Where did this right `to keep and carry arms' come from?  Apparently
from the `privileges and immunities' section of the Constitution; but,
if so, this right pre-existed the Constitution, and could be included
in the Ninth Amendment's protections, as well as the Second
Amendment.  Evidence that this right came from the `privileges and
immunities' clause  not the Second Amendment, is that Taney called
these rights of citizens even though the language of the Bill of Rights
protects these rights of the people.