Explore The NRA Universe Of Websites

APPEARS IN Legal & Legislation

The Bill Of Rights And The States

Wednesday, July 28, 1999

Once viewed by Chief Justice John Marshall
as a check against excesses of the federal government
alone, the safeguards of the Bill of Rights
have been gradually, almost fitfully,
extended over state powers by
the Supreme Court.



At the time the Constitution 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.



Stefan B. Tahmassebi is currently the Deputy General Counsel of the National Rifle Association of America, where he has worked for over 10 years. He came to the NRA after practicing law in a Washington D.C., area law firm. He earned his Juris Doctorate from Georgetown University and his B.A. from the University of Virginia, with a major in History, a Major in German Language and Literature, and a Minor in Foreign Affairs. Mr. Tahmassebi was born in Dusseldorf, Germany, and emigrated to the United States at age 10. He has authored numerous legal articles such as, "Gun Control and Racism," which appeared in the George Mason University Civil Rights Law Journal.

TRENDING NOW
Kentucky: House Introduces Constitutional/Permitless Carry Legislation

Tuesday, February 14, 2017

Kentucky: House Introduces Constitutional/Permitless Carry Legislation

The Kentucky House of Representatives introduced their own constitutional/permitless carry bill. House Bill 316, sponsored by Representative C. Wesley Morgan (R-81), recognizes Kentuckians’ freedom to legally carry a concealed firearm without the burdensome requirement of acquiring ...

Senate Votes to Block Obama Social Security Administration Gun Ban; Legislation Heads to President Trump

News  

Friday, February 17, 2017

Senate Votes to Block Obama Social Security Administration Gun Ban; Legislation Heads to President Trump

On Wednesday morning, the U.S. Senate voted 57-43 in favor of H.J.Res.40, which would block the implementation of an Obama-era rule under which the Social Security Administration (SSA) would report the names of tens of ...

NRA-Backed Resolution to Stop Obama Attack on State Wildlife Management Passes House

News  

Hunting  

Friday, February 17, 2017

NRA-Backed Resolution to Stop Obama Attack on State Wildlife Management Passes House

On Friday, the U.S. House of Representatives passed H.J. Res. 69, a measure that would use the Congressional Review Act to repeal an Obama-era rule passed by the U.S. Fish and Wildlife Service (FWS) to preempt ...

Massachusetts: Legislation Introduced to Challenge AG Healey’s Gun Ban

Thursday, February 16, 2017

Massachusetts: Legislation Introduced to Challenge AG Healey’s Gun Ban

The Massachusetts General Court’s 2017 legislative session is in full swing with the introduction of numerous pro- and anti-gun bills.  Among the pro-gun bills are Senate Docket 1157 and Senate Docket 1889.  Both SD 1157 ...

Washington: One Anti-Gun Substitute Dies in Committee, Another is Headed to the House Floor

Thursday, February 16, 2017

Washington: One Anti-Gun Substitute Dies in Committee, Another is Headed to the House Floor

Today, the House Judiciary Committee considered substitute bills for House Bill 1387 and House Bill 1122. 

Connecticut Governor Covers for Failed Policies by Increasing Fees on Gun Owners

News  

Friday, February 17, 2017

Connecticut Governor Covers for Failed Policies by Increasing Fees on Gun Owners

Times are tough in the Constitution State, where Democrat governor Dannel Malloy of Connecticut, despite governing the fifth wealthiest state in the nation, where 25% of households earn more than $100,000 and 10% earn more ...

Media Smears the Disabled, Misinforms on Social Security Gun Ban

News  

Friday, February 17, 2017

Media Smears the Disabled, Misinforms on Social Security Gun Ban

Last week, the Richmond Times-Dispatch issued an editorial titled, “Time to license guns - for journalists,” which cited an embarrassing string of journalistic blunders to illustrate the media’s dearth of firearms knowledge. The piece concluded, ...

California DOJ Withdraws “Assault Weapon” Regulations

Monday, February 13, 2017

California DOJ Withdraws “Assault Weapon” Regulations

As previously reported, after the California Department of Justice submitted regulations regarding newly classified “assault weapons” to the Office of Administrative Law (“OAL”) for publication in the California Code of Regulations (CCR), NRA and California ...

South Dakota: Bill Introduced to Silence NRA Communications

Friday, February 17, 2017

South Dakota: Bill Introduced to Silence NRA Communications

Recently introduced in the House of Representatives is House Bill 1200, legislation that would severely limit your NRA-ILA’s ability to communicate with its membership in South Dakota.

Georgia: Multiple Firearm-Related Bills to be Considered in Committee Next Week

Friday, February 17, 2017

Georgia: Multiple Firearm-Related Bills to be Considered in Committee Next Week

On Monday, February 20, the Georgia House Public Safety and Homeland Security Committee is scheduled to hear multiple important pro-gun bills:

MORE TRENDING +
LESS TRENDING -
NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.