Stefan B. Tahmassebi
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At the time the Consti-tution was adopted, many of its drafters felt no need to enumerate specific individual rights since the national government could exercise only the limited powers delegated to it in the Constitution. The limited powers of the federal government assured the freedom of the individual from federal interference, as that government could not oppress where it was already forbidden to act. However, there were enough objectors to ratification of the Constitution that a compromise was struck by enacting a Bill of Rights.
The first 10 amendments to the Constitution, adopted in 1791, constitute the Bill of Rights. Its sole purpose was to protect the individual against acts of the federal government. In 1833, Chief Justice John Marshall held in Barron v. Baltimore that the guarantees enumerated in the Bill of Rights were a limitation only on the federal government. The result was a lack of federal constitutional protection of the individual against the acts of state governments (other than a few individual rights guaranteed in the body of the Constitution proper).
The post Civil War enactments of the 13th, 14th and 15th Amendments changed this situation. These amendments were enacted specifically to bar discrimination by states against individuals, especially the newly freed slaves. The drafters of the 14th Amendment intended that its "Privileges and Immunities" clause would be the means for protecting these rights from state government interference.
However, in the Slaughterhouse Cases (1872), the Supreme Court, in a 5-4 decision, gave the "Privileges and Immunities" clause a very narrow reading. The Court held that the clause prohibited states merely from infringing upon the rights of national citizenship? those rights peculiar to an individual's relationship to the federal government. Justice Miller held that the fundamental civil rights of the individual were derived from state law and constitutions and not the federal government.
The dissenting opinion objected by pointing out that the 14th Amendment was designed to guarantee freedom and equality to the recently emancipated slaves, and that the "Privileges and Immunities" clause was to protect these rights against infringement by state governments. The majority's holding would, in effect, add no more protection than existed prior to the adoption of the Amendment, thus making the clause meaningless. Although the dissenters in the Slaughterhouse Cases held that the "Privileges and Immunities" clause guaranteed the fundamental rights of U.S. citizens against infringement by the states, the majority's opinion has prevailed to this day, and the clause remains limited to a few rights of national citizenship. (Examples of such national rights include the right to interstate travel and the right to vote in national elections.)
Instead of the "Privileges and Immunities" clause, the "Due Process" clause of the 14th Amendment became the means by which various rights found in the Bill of Rights were "incorporated" and made binding on state governments. This has occurred through a process of "Selective Incorporation" ?a process which provides few guidelines or boundaries as to what is a "fundamental right" protected from state government infringement by "incorporation" through the "Due Process" clause. Furthermore, the "Selective Incorporation" view rejects the "Total Incorporation" approach, which holds that the entire Bill of Rights is incorporated through the 14th Amendment and made effective against state action.
"Selective Incorporation" has resulted in judges and courts interpreting the term "liberty" found in the 14th Amendment without regard to the rights guaranteed in the Bill of Rights. Only those liberties found in the Bill of Rights which a judge finds to be "fundamental" are selectively incorporated via the 14th Amendment and thereby protected against state interference. In Palko v. Connecticut (1937), Justice Cardozo held that the test was whether the Bill of Rights guarantee in question is of "the very essence of a scheme of ordered liberty" and one of the "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions." Thus, the Court defined rights as being of two classes: fundamental principles of liberty which would be incorporated through the 14th Amendment and made effective against states, and "not so fundamental" rights which would not be incorporated.
Furthermore, the selective incorporationists have held that the fundamental rights incorporated by the 14th Amendment and protected against state interference are not limited to what is found in the Bill of Rights. In Adamson v. California (1947), Justice Frankfurter, in his concurring opinion, stated that the 14th Amendment "Due Process" clause has an "independent potency" of its own, which must be ascertained on a case-by-case basis by examining whether the challenged governmental action offends "those canons of decency and fairness which express the notions of justice of English-speaking peoples." Thus, in In Re Winship (1970), the Supreme Court held that the requirement that the government provide "proof beyond a reasonable doubt" in a criminal case, was binding in state trials, as it was one of the "essentials of due process and fair treatment," even though there is no specific provision in the Bill of Rights which imposes such requirement.
Dissenting in Adamson v. California, Justice Black attacked the majority's "fundamental rights" approach as permitting the Court to act as a super legislature enforcing its own social and moral theories and goals, leaving citizens without assured rights and granting the Court an unauthorized power to define protected rights at will. Justice Black argued that the 14th Amendment, taken as a whole, required the application of the entire Bill of Rights to the states. Such "Total Incorporation" would protect all of the guarantees specified in the Bill of Rights against adverse state government action, enhancing judicial objectivity and greater certainty, while conforming to the intent of the framers of the 14th Amendment. There is persuasive evidence that the 14th Amendment's framers intended "Total Incorporation."
While the "Selective Incorporation" theory has been applied by the Supreme Court, the test used to determine whether a right is fundamental has changed. Where Justice Cardozo incorporated only those particular guarantees in the Bill of Rights which were "implicit in the concept of ordered liberty" and which, if violated, would "shock the conscience of mankind," the Warren Court went further by incorporating any guarantee, whether explicitly mentioned in the Bill of Rights or not, which was "fundamental in the context of the [judicial] process maintained by the American states" or "fundamental to the American scheme of justice," even though a "fair and enlightened system of justice" did not necessarily require it.
The Supreme Court muddied the waters further by holding in San Antonio Independent School District v. Rodriguez (1973) that a right guaranteed in the Bill of Rights is a fundamental right. Though the Court did not specifically overrule the concept of "Selective Incorporation," this holding may signal the Supreme Court's approval of the "Total Incorporation" approach.
Under the process of "Selective Incorporation," most of the principal guarantees of the Bill of Rights have been incorporated and made applicable to the states. Provisions that have not yet been incorporated include the Third and Seventh Amendments, the right to grand jury indictment of the Fifth Amendment, the guarantee of freedom from excessive bail of the Eighth Amendment, and the right to keep and bear arms of the Second Amendment.
However, in addition to the Second Amendment of the United States Constitution, 44 states have a state right to keep and bear arms provision in their state constitutions. For this reason, the NRA has been very successful in challenging state and local government infringement on the right to keep and bear arms, not by using the Second Amendment to the United States Constitution, but by bringing lawsuits based on the right to keep and bear arms provisions of state constitutions.
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