Explore The NRA Universe Of Websites

APPEARS IN Second Amendment

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
TRENDING NOW
SCOTUS Reverses and Remands Two NRA-ILA Backed Magazine Cases

News  

Thursday, June 30, 2022

SCOTUS Reverses and Remands Two NRA-ILA Backed Magazine Cases

One week after our landmark victory in NYSRPA v. Bruen, the Supreme Court issued orders in two other NRA-ILA backed cases. Those cases, ANJRPC v. Bruck and Duncan v. Bonta, challenge New Jersey and California laws that ban magazines capable ...

“I Did That!” Biden’s Gas Crisis Creates Public Safety Crisis

News  

Tuesday, July 5, 2022

“I Did That!” Biden’s Gas Crisis Creates Public Safety Crisis

The Biden Administration is serious about making it more difficult for responsible citizens to exercise their gun rights, which is hardly surprising from the most anti-Second Amendment president in history. What is less obvious is ...

California: Legislature Passes and Newsom Signs Anti-Gun Bills

Friday, July 1, 2022

California: Legislature Passes and Newsom Signs Anti-Gun Bills

The California Legislature starts their Summer recess today, but not before a busy week full of defiant action against the recent Supreme Court victory in the NRA case of NYSRPA v. Bruen. The legislature passed several anti-gun ...

New Jersey:  Despite Historic Supreme Court Ruling Gun Bills Advance in Trenton

Friday, July 1, 2022

New Jersey: Despite Historic Supreme Court Ruling Gun Bills Advance in Trenton

On the heels of last week’s landmark Supreme Court decision in NYSRPA v. Bruen, Majority Democrats in Trenton doubled down on even more Second Amendment infringements by passing yet another package of gun bills.  This is ...

The Dominoes Begin to Fall: NJ Amends Permit Rules After Bruen

News  

Tuesday, June 28, 2022

The Dominoes Begin to Fall: NJ Amends Permit Rules After Bruen

New Jersey’s acting Attorney General, Matthew J. Platkin, issued a directive “clarifying requirements for carrying firearms in public” a day after the historic ruling by the U.S. Supreme Court in New York State Rifle & Pistol Assoc. v. ...

California Leaks Personal Data of Carry Permit Holders

News  

Wednesday, June 29, 2022

California Leaks Personal Data of Carry Permit Holders

On Monday June 27, California Attorney General Rob Bonta announced the launch of the California Department of Justice (DOJ)’s Firearms Dashboard Portal. The data tool was designed to give granular firearm transaction and Concealed Carry Weapons (CCW) permit ...

New York:  Majority Democrats Vote in Lockstep to Defy the United States Supreme Court

Friday, July 1, 2022

New York: Majority Democrats Vote in Lockstep to Defy the United States Supreme Court

Anti-Second Amendment politicians returned to Albany late this week and did the bidding of Gov. Kathy Hochul.  She called the Legislature back into an “extraordinary” session this week.  The session was anything but extraordinary. Lawmakers ...

Guide To The Interstate Transportation Of Firearms

Gun Laws  

Thursday, January 1, 2015

Guide To The Interstate Transportation Of Firearms

CAUTION: Federal and state firearms laws are subject to frequent change. This summary is not to be considered as legal advice or a restatement of law.

NRA-ILA Asks Court to Stop the California DOJ From Releasing Gun Owners’ Personal Information After Massive Data Leak.

Thursday, June 30, 2022

NRA-ILA Asks Court to Stop the California DOJ From Releasing Gun Owners’ Personal Information After Massive Data Leak.

Earlier this week, California Attorney General Rob Bonta announced that he would be releasing firearms data via the California DOJ’s Firearms Dashboard Portal. That data contained gun owners’ names, dates of birth, gender, race, driver’s license numbers, addresses, and criminal ...

A Century of Opposition to New York’s Sullivan Law

News  

Tuesday, July 5, 2022

A Century of Opposition to New York’s Sullivan Law

On June 23, the U.S. Supreme Court struck down New York’s discretionary carry licensing regime as a violation of the Second Amendment right to bear arms in the NRA-backed case NYSRPA v. Bruen. The law at ...

MORE TRENDING +
LESS TRENDING -

More Like This From Around The NRA

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.