All this ‘incorporation” bullsh*t is just that. I restate my case here:

“The original text of the US Constitution contained language “incorporating” it entirely against the states. Simply read Article IV, Sections 1 and 2 and Section VI. You know phrases like, “The citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” And, “This Constitution,…, shall be the supreme law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.” And, “… all executive and judicial Officers, both of the United States and of the several States shall be bound by Oath or ….”

Plus, all the States were required to “ratify” the US Constitution. Why be required to ratify something if you’re NOT being required to comply with it?”

The states were bound to honor and uphold the Constitution as the
“Supreme Law of the Land.” So, where did all this supposed need for the 14th Amendment arise (I understand the issue of freed slaves being denied their rights, etc. but that was a preversion of law to start with)?

In reading Presser the Court says a federally enforceable right to arms exists without reference to the 2ndA and this federal right binds state action to disarm citizens. The Court states the authority for this federal enforcement exists on two planes, textually and philosophically, perhaps entwined with the constitution’s promise to provide a republican form of government or simply the general militia concept being an inseparable component of our founding principles (“It is undoubtedly true . . . as the Court stated)?

PubliusFL:
I mean constitutionally.The Constitution only discusses the federal government and the states with respect to the militia.Towns and counties are components of states and are invisible on the level of the Constitution.

You went beyond the mention of state militia in the Constitution to a historical statement about it being a state function “most of the time” in a context that doesn’t make it clear that for the Framers the term “state” didn’t necessarily mean state government. When they intended that they usually referred to the state legislature. By itself, it means no more than the people in exclusive dominion over a territory, which may or may not have a government, and which includes customary or local activity that is not formally “governmental” in character other than as a kind of emergent cooperative behavior.

Jon Roland:
No, most of the time it was the function of the local community, a town or county. It is traditional to refer to everything below the national level as ’state” but originally it was the people at the local level who called up militia. Even one person calling up himself is militia.

I mean constitutionally. The Constitution only discusses the federal government and the states with respect to the militia. Towns and counties are components of states and are invisible on the level of the Constitution.

PubliusFL:
Militia was a function of the state most of the time

No, most of the time it was the function of the local community, a town or county. It is traditional to refer to everything below the national level as ‘state” but originally it was the people at the local level who called up militia. Even one person calling up himself is militia.

Escapee: PubliusFL, I’m not going to allow the militia as an example because that was a function of the state, but I will add the post office’s mail delivery system to round out your set of three.

Militia was a function of the state most of the time, yeah, but in some cases the federal government was entitled to call it up and govern it directly. Since the militia at that time consisted of “the whole people” (at least all the able-bodied free adult males), that potentially put almost every citizen that mattered in the direct service of the federal government. The power to establish post offices almost made my list, it was a toss-up between that and the militia.

Escapee: Point being that the the individual Citizen was not considered in the delegated powers of the Constitution. All municipal legislation was reserved to the states. I don’t believe the history or law can be read in any other way.Sure, there were U.S. citizens which were not state citizens (though I’m not sure the opposite could be true), but this proves that there is a citizenship of the individual state, and a citizenship of the U.S. The latter is today the subject of the Fourteenth Amendment and the jurisdiction thereof.
We the People–the state Citizen–is not.

That’s true for the most part. State governments have the police power, the federal government does not. But I don’t really see what that has to do with the 14th Amendment. Before and after there was citizenship of the state and citizenship of the U.S. Before the latter flowed (for the most part) from the former, now the former flows from the latter. But the federal government was always one of delegated powers, and the fact that the federal government meddles far more in the lives of ordinary citizens than it was meant to stems from misconstruction of those delegated powers, not from the “subject to the jurisdiction thereof” language of the 14th Amendment.

You win!

Escapee: PubliusFL, I’m not going to allow the militia as an example because that was a function of the state …

No, militia is the duties that come with the social contract that creates the society, and is thus more fundamental than any state, which is a society with effective dominion over a territory. See this article.

Point being that the the individual Citizen was not considered in the delegated powers of the Constitution. All municipal legislation was reserved to the states. I don’t believe the history or law can be read in any other way.

Sure, there were U.S. citizens which were not state citizens (though I’m not sure the opposite could be true), but this proves that there is a citizenship of the individual state, and a citizenship of the U.S. The latter is today the subject of the Fourteenth Amendment and the jurisdiction thereof.

We the People–the state Citizen–is not.

PubliusFL:
The biggest culprits have been the gross misinterpretations of the commerce clause and the taxation power that have come to predominate.

The misinterpretation of the Necessary and Proper Clause has to be included. Some of the misinterpretation has consisted of adding things to “commerce” not intended by the Founders, such as primary extraction and manufacturing, but most of it has consisted of expanding the subjects of regulation to include things that “affect” commerce and therefore make difficult the obtaining of regulated outcomes. That is using the Necessary and Proper Clause, misinterpreting it and the power to “regulate” to be about getting certain kinds of results rather than only about making certain kinds of efforts. The key phrase is “carry into execution”, which is about efforts, not results.

Escapee: So, name me three enumerated powers, pre-14th, that reached out and touched the citizen of the state directly.

Naturally, you’d need to bring in the “necessary and proper clause” to get there, but I think it’s done easily enough even with a reasonable originalist construction (I’m guessing I’d agree with you that it’s been stretched way too far over the years).

1. The power to provide for the punishment of counterfeiting the securities and current coin of the United States.
2. The power to provide for protection of copyrights and patents.
3. The power to call forth the militia under certain circumstances, and to govern “such part of them as may be employed in the service of the United States.”

Clearly the federal government “reaches out and touches” individual citizens in a lot of ways that the Founders never would have envisioned. But I think most of that has little to do with a change from “United States citizens” to “citizens of the United States” (“Citizen of the United States” is the phrase used in the original Constitution, incidentally). The biggest culprits have been the gross misinterpretations of the commerce clause and the taxation power that have come to predominate.

Escapee: So, name me three enumerated powers, pre-14th, that reached out and touched the citizen of the state directly.

All of them.

Escapee:
So where does this impression come up short? …
Reading your linked article, I sense your confusion in applying the Fourteenth Amendment to rehash the original ten. That was not its purpose, not for the existing citizenry at least. … State Citizens were never subject to the jurisdiction.

You need to re-read my article and think about the concept of constitutional rights all being immunities that may be defined equivalently either as restrictions on powers or declarations, and that together they divide (partition) the space of public action. Every delegated power is a restriction on immunities, and every immunity a restriction on powers. There is no middle ground between them.

I am not confused. The conflict between the rights recognized in the Constitution and Bill of Rights, for which the 14th extended federal court jurisdiction to include for disputes between a citizen and his state, and state police powers, is the area of confusion. I regard such a broad delegation of powers to be unconstitutionally vague, and hold that state police powers need to be severely restricted to resolve the conflict. Statements made by supporters of the 14th make clear they did indeed intend a general expansion of federal court jurisdiction to such cases, and that is the only way to coherently read the words of the 14th.

So, name me three enumerated powers, pre-14th, that reached out and touched the citizen of the state directly.

Escapee:
State Citizens were never subject to the jurisdiction.

Sure they were. Even before the 14th Amendment, citizens of the states were also citizens of the United States, and therefore subject to the jurisdiction of the United States to the extent of Congress’ delegated powers. Dur The “subject to the jurisdiction” bit of the 14th Amendment is to make it clear that someone born in the United States is not a U.S. citizen if they’re, say, the child of foreign diplomatic personnel, who are subjects/citizens of a foreign power and not subject to U.S. jurisdiction in any way. The debates over the 14th Amendment in Congress covered that point.

Jon Roland:
I think we disagree on whether the Bill of Rights is a, um, bill of rights. I maintain it is a list of prohibitions on the federal government

That is just another way of saying the same thing. You need to study in greater depth the concept of rights and how they may be defined. Start here.

So where does this impression come up short?

First Amendment: Congress shall make no law…respecting…or prohibiting…or abridging…(list of pre-existing rights).

Second Amendment: …the (pre-existing) right…shall not be infringed.

Third Amendment: (Another prohibition.)

Fourth Amendment: The (pre-existing) right of the people…shall not be violated,..

Etc.

Reading your linked article, I sense your confusion in applying the Fourteenth Amendment to rehash the original ten. That was not its purpose, not for the existing citizenry at least. The Fourteenth was intended to enfranchise a group that had no rights of state citizenship, not to inventory the rights that the state Citizen already possessed.

I suspect that you are not reading the Constitution at a sufficiently elementary level, especially the part of the Fourteenth that says “and subject to the jurisdiction thereof”.

State Citizens were never subject to the jurisdiction.

Escapee:
I think we disagree on whether the Bill of Rights is a, um, bill of rights. I maintain it is a list of prohibitions on the federal government

That is just another way of saying the same thing. You need to study in greater depth the concept of rights and how they may be defined. Start here.

Grey: I’ve always been curious about the attitude of the “2nd Amendment crowd” (if I may) toward such questions. Post-Heller, there was a real “We did it!” euphoria; indeed, I remember many Conspirators waxing poetic, reflecting on the fact that there’s been a real movement making this a cause celebre in law journals and other publications over the past couple of decades.That always struck me as a bit odd, and perhaps a bit scary. Do we think it’s OK for a dedicated group of people coming from a similar ideological viewpoint to “win” an issue by concerted effort and sheer volume of scholarship?This is a non-partisan point, I hope you understand. I think it would fail many people’s shoe-on-the-other-foot tests, so I’m interested to see how many might rationalize their views on it.

If there’s any point to scholarship, it’s finding the truth. And having the most powerful Court in the world embrace one’s views, expressed in their scholarship, is perhaps the best that legal scholars have.

Jon Roland: All constitutional rights are immunities from official action, and may be equivalently expressed as either a restriction on a delegated power or as a declaration of the right. The space of public action is partitioned into powers or rights, each of which is a restriction on the other. One has an individual right to do anything the government does not have the delegated power to restrict.

I think we disagree on whether the Bill of Rights is a, um, bill of rights. I maintain it is a list of prohibitions on the federal government that the People insisted be included before their states would ratify the U.S. Constitution.

We the People do not get our rights from the Constitution. The idea that rights originate from government came nearly one hundred years later during the forcible enfranchisement of a group of people who were not citizens. A regrettable situation that should have been solved in other ways.

Whenever someone speaks of “constitutional rights” I know that they are taking me directly to the fourteenth amendment. And as a state Citizen, I do not want to go there.

Good discussion. Hope I’m not making this the Escapee Show.

W.Richards: Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.Is how the Illinois state constitution reflects the 2nd amendment. The Subject to police power clause was installed in 1968. Remember what civil unrest was going on in the late 60’s. A very slick move by Mayor Daley Sr. at the time.

Minor correction, it went into the Constitution of 1970. Daley Jr was a member of the convention.

Carl from Chicago: Now … on rights incorporated via due process … are they necessarily fundamental, and necessarily subject to strict scrutiny? I could see a 9-0 vote for incorporation, but could also see four justices also saying that Chicago’s ban doesn’t violate the second amendment.

Does incorporation of a right somehow dilute that right? Are there exceptions to the States for the First Amendment that the Federal government cannot avail themselves of simply by dint of a difference between applying the right directly or via the 14th Amendment?

If they incorporate the 2nd Amendment, surely they cannot say that DC cannot do the same that that Chicago can?

Plus, all the States were required to “ratify” the US Constitution. Why be required to ratify something if you’re NOT being required to comply with it?

The “Incorporation doctrine” is nothing more than legal BS promulgated by corrupt courts so they could rationalize the violation of both the US Constitution and their Oaths to uphold it as the “supreme law of the land.”

If SCOTUS rules against incorporation of the 2nd Amendment, it will have to go against all the other incorporation cases it has decided the last century or so. And, it will be prima facie evidence of Judicial Activism on the nation’s highest court.

And the Justice system has the power to punish citizens for “contempt of court”? My question is, “Just how the hell can any patriotic American have anything but contempt for our courts these days.”

It’s all a legal crock of crap! We need to cleanup the so-called Justice system while we’re at it.

It would be interesting to hear from some real legal eagles on this subject.

Sure, why not? The courts should consider their arguments and evidence, and pay attention if they seem to be right. If they’re way off base they probably won’t get much traction.

Can someone give a thumbnail sketch on the significance of the privileges and immunities clause regarding the second amendment? People seem to react to that strongly here and elsewhere but I’m not clear as to why.

In the Slaugherhouse cases a long time ago, the court said that the P+I clause doesn’t giver courts power over lockner-type economic regulation. The case has been understood to effectively read the P+I clause out of the constitution. I comes up occasionally in the context of a right to travel. I have a pending case where I argue P+I in the context of a right to vote in a federal election. Many scholars think slaughterhouse was wrong. The Institute of Justice was founded on the goal of reversing Slaughterhouse, and having 14th A review of economic liberties. The movement to restore the lost parts of the constitution, such as P+I, the 2nd A,the 9th A, and a more constrained view of the commerce clause, is sometimes called the constitution in exile movement,and there’s a long running debate on this blog about whether it even exists. McDonald v Chicago could be a landmark case not only applying the 2nd A nationally (but, currently, under a deferential standard of review), but also reviving the P+I clause. There might not be 5 votes for that part but at a minimum Justice Thomas’ opinion will make for interesting reading.

Wendy:
What’s being Jewish have to do with statistics?

Having noted that fact, the AK is still an excellent tool, and is one more reason why all REAL Americans must put our 2nd Amendment FIRST!!

You don’t think that most who were on the gun-rights side of Heller believe in expanding gun rights? Oppose Brady? You think they just woke up one day and said “By Jove, we need a clarify a point of law that I’m not personally interested in!” Right.

Guys who agree with you are enforcing the ‘plain meaning.’ Others are ‘biased.’ Yes, you can sense my skepticism when this is how people frame ANY legal discussion.

But mine is still a non-partisan point. If a group of legal scholars make a multi-decade effort to change or push law in a certain area, we’re OK with that? Regardless?

Yet several here claim that it creates a new “franchise” of citizen, hmmmm. There is nothing in the US Constitution or state constitution that defines a differentiation of state versus country citizenship nor any differentiation in rights between either.(reference section 1)

The employees of the federal government are from each state or territory, hence they are already citizens under their own states consitutions.

As mentioned earlier in the blog districts and territories still convey the rights of citizenship within those entities.

The US Constitution conveys US citizenship upon all states who once chartered to become a state in this union, did so agreeing to the be a state under the documentation, rules and laws governing such membership (e.g. the US Constitution).

So the circular reference I am having trouble understanding is how, since all federal employees are citizens of their individual states, territorial entities, and the union (e.g. United Staes of America) without established differentiation in rights, how then the 2nd A only applies only to those citizens when they work for the federal government?

Text of the 14th amendment

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Is how the Illinois state constitution reflects the 2nd amendment. The Subject to police power clause was installed in 1968. Remember what civil unrest was going on in the late 60′s. A very slick move by Mayor Daley Sr. at the time.

For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police [p417] regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised 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, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.

14th Amendment:

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.

The 14th Amendment was written to directly address the wording used in Dred Scott that said blacks were not equally entitled to the same rights as whites.