Was the Bill of Rights originally intended only to restrict the federal government?
- Thread starter Balrog
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In simple terms. Orgionally, the Constitution was not suppossed to have any BOR.
In order for it to be accepted a BOR was pushed. The states had there own BOR bc they were in essence(and still are- well sorta) ruling themselves. Under the umbrella of the federal govt. This is a huge oversimplification
In order for it to be accepted a BOR was pushed. The states had there own BOR bc they were in essence(and still are- well sorta) ruling themselves. Under the umbrella of the federal govt. This is a huge oversimplification
Eightball
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Yes.
Individual states' inclusions of their own RKBA fell under the domain of the states' "police power."
Individual states' inclusions of their own RKBA fell under the domain of the states' "police power."
Lorenzo Rojo
Member
The Bill of Rights was the compromise that made the Constitution ratifiable to the very strong states rights advocates. Our nation is meant to be a Union of Sovereign States coming together for mutual benefit. The Civil War was the death of the notion that the States should have more power than the Federal Government.
Thomas Jefferson must be turning in his grave...he would have strongly opposed changing the Vice-President to the current "ticket" system...he would have opposed the direct election of Senators..he would have opposed the Income Tax...in fact, I don't even think he'd recognize what the Constitution has become or how powerful both the Presidency and the Supreme Court have become. He'd probably be stirring things up with all kinds of revolutionary talk...
Thomas Jefferson must be turning in his grave...he would have strongly opposed changing the Vice-President to the current "ticket" system...he would have opposed the direct election of Senators..he would have opposed the Income Tax...in fact, I don't even think he'd recognize what the Constitution has become or how powerful both the Presidency and the Supreme Court have become. He'd probably be stirring things up with all kinds of revolutionary talk...
Pointedstick
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Yes, but the 14th amendment was supposed to apply it to the states as well.
I'm not sure whether the Founding Fathers intended the Bill of Rights to apply to the States or not. And they're not around to ask. Of course the Constitution as originally proposed to the States for ratification didn't include a Bill of Rights.
In any case, in 1833 the Supreme Court of the United States decided that the Bill of Rights did not apply to the States (Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243 (1833)). But beginning in the latter part of the 19th Century, the Supreme Court began to apply the Bill of Rights in a piecemeal fashion to the States through the 14th Amendment under a legal doctrine known as incorporation.
That's what the McDonald case recently argued before the Supreme Court is all about: incorporation of the 2nd Amendment through the 14th Amendment to apply to the States.
(BTW, in United States v. Cruikshank, 92 U.S. 542 (1876), the Supreme Court expressly found that neither the First Amendment right of assembly nor the 2nd Amendment applied to the States.)
In any case, in 1833 the Supreme Court of the United States decided that the Bill of Rights did not apply to the States (Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243 (1833)). But beginning in the latter part of the 19th Century, the Supreme Court began to apply the Bill of Rights in a piecemeal fashion to the States through the 14th Amendment under a legal doctrine known as incorporation.
That's what the McDonald case recently argued before the Supreme Court is all about: incorporation of the 2nd Amendment through the 14th Amendment to apply to the States.
(BTW, in United States v. Cruikshank, 92 U.S. 542 (1876), the Supreme Court expressly found that neither the First Amendment right of assembly nor the 2nd Amendment applied to the States.)
alsaqr
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If you want to know intent of the framers of the Bill of Rights then read The Federalist Papers.
The Federalist Papers were written by Jay, Hamilton and Madison.
http://thomas.loc.gov/home/histdox/fedpapers.html
The Federalist Papers were written by Jay, Hamilton and Madison.
http://thomas.loc.gov/home/histdox/fedpapers.html
Blackbeard
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The constitution created the federal government, so by rights it must define the scope of its power. In some respects, it does limit state governments because certain powers were ceded to the federal government and therefore forbidden to the states (e.g. the power to coin money, make treaties, etc.) The restrictions in the bill of rights mostly specify the limits on Congress and federal authority. It wasn't until the 14th amendment that any of them applied to the states, and the scope of that amendment is still being debated (see McDonald v. Chicago).
Webbj0219
Member
Ive read that the founding fathers wanted us to be ruled by a constitution the way France was so we made a constituuion. Later it was decided that our constitution had some gaps to be filled so the bill of rights was added. At least thats how I understand it. It was intended for the fed gov. Reading about the revolutionary times is kinda funny for me, because many things never change. Much of the issues we have nowadays they had then. Maybe not the RKBA, no problem with that back then. Mostly the political issues we have are very much the same.
FloridaConfederate
Member
The BOR applied to the Federal level. The stae constitutions regulated the matters there. All powers not delegated to the federal are reserved to the states. The 14th amendment has in effect removed the power of the independent sovereign states to determine the qualifications for " citizenship". Till then a person was a national of the state. The blacks were not anything other than chattel. http://www.pacinlaw.org/fourteenth/part_1.php is an excellent source on this.
The essays comprising the Federalist Papers, and written by three of the 40 or so Founding Fathers (representatives to the Constitutional Convention in Philadelphia at which the Constitution was drafted), have been used extensively in the judicial interpretation of the Constitution as evidence of the Founding Fathers' intent. But whatever they may have intended, the question was resolved as a matter of law by the Supreme Court in 1833.alsaqr said:
The Federalist Papers were written by a group of authors (Hamilton, Madison, et al.) to argue in favor of adopting the Constitution and a relatively strong central government (when compared with the Articles of Confederation). There were naysayers who wanted some defined limits on the federal government. As part of the political process, there was informal agreement among most that what we call the Bill of Rights would be adopted after the Constitution was adopted. Some of the Federalists argued the adoption of enumerated rights would lead to argument that other rights not specifically mentioned in the BOR would be lost. That's part of the reason for the Tenth Amendment (rights not granted the federal government are reserved to the states or the People).
So, when the BOR was adopted, it was adopted ONLY to restrict the federal government and did not apply in any way to the states. That is why there is no requirement for a grand jury in many states even today, even though it is mentioned in the Fifth Amendment.
Following the Civil War, Amendments 13, 14, and 15 were adopted. One portion of the 14th Amendment protected the privileges and immunities of U.S. citizens from encroachment by the states (Privileges and Immunities Clause or P&I Clause). Another guaranteed that no state could deprive "any person" of life, liberty or property without "due process of law" (Due Process Clause).
The P&I Clause was severely curtailed by court interpretation. However, most of the rights in the Bill of Rights were incorporated against the states through the Due Process Clause one right at a time. A couple have not ever been adopted and applied to the states including the Second Amendment's right to keep and bear arms. That, of course, is what McDonald is about.
McDonald's attorney wanted to incorporate the right primarily through a resurrected P&I Clause, though also briefly arguing incorporation through the Due Process Clause. The NRA's friend of the court brief argued that it should be incorporated through the Due Process Clause. Almost all court observers believe the P&I argument is probably dead but with the Due Process argument very much alive.
Please excuse the long post.
So, when the BOR was adopted, it was adopted ONLY to restrict the federal government and did not apply in any way to the states. That is why there is no requirement for a grand jury in many states even today, even though it is mentioned in the Fifth Amendment.
Following the Civil War, Amendments 13, 14, and 15 were adopted. One portion of the 14th Amendment protected the privileges and immunities of U.S. citizens from encroachment by the states (Privileges and Immunities Clause or P&I Clause). Another guaranteed that no state could deprive "any person" of life, liberty or property without "due process of law" (Due Process Clause).
The P&I Clause was severely curtailed by court interpretation. However, most of the rights in the Bill of Rights were incorporated against the states through the Due Process Clause one right at a time. A couple have not ever been adopted and applied to the states including the Second Amendment's right to keep and bear arms. That, of course, is what McDonald is about.
McDonald's attorney wanted to incorporate the right primarily through a resurrected P&I Clause, though also briefly arguing incorporation through the Due Process Clause. The NRA's friend of the court brief argued that it should be incorporated through the Due Process Clause. Almost all court observers believe the P&I argument is probably dead but with the Due Process argument very much alive.
Please excuse the long post.
hugh damright
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I think the way it works it that a constitution frames a government and a bill of rights declares principle of, or limits upon, that government. So the USBOR was intended to limit the US government. As the SCOTUS explained in Barron v Balitmore:
"The question thus presented is, we think, of great importance, but not of much difficulty. The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes."
"The question thus presented is, we think, of great importance, but not of much difficulty. The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes."
stuckinsocal
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Although I can't say much about the intent of the Founders, I do think that there's a stronger argument for applying it to the state/local governments than the 14th Amendment. Article VI, Section 2 of the Constitution states that it is the supreme law of the land. If it's the supreme law of the land, that means that no other laws can be made that contradict it (such as all the gun laws we have now).
Carl N. Brown
Member
FROM THE PREAMBLE TO THE BILL OF RIGHTS:
These were regarded as guarantees of the rights of the people against
abuse by the federal government because (har, har) it was believed
that, by being closer to the people, the state governments would not
be abusive of the rights pf the people. Which eventually led to:
These were regarded as guarantees of the rights of the people against
abuse by the federal government because (har, har) it was believed
that, by being closer to the people, the state governments would not
be abusive of the rights pf the people. Which eventually led to:
The Bill of Rights was intended by the Founders to restrain the Federal government alone.
In terms of RKBA, it is important to remember how it was regarded in the aftermath of the Revolution. RKBA was seen as being a God given right above and beyond the power of any legislative body or executive to infringe upon. Whether there was written protection for it or not, it was viewed as being akin to breathing air. It was something free men could do as a matter of course. If registration, licensing, background checks, "assault" weapon bans etc had been attempted in, say, 1800 one of three things would have occurred: nullification, negation by the courts, violent revolution. If you were a free white man it was your absolute right to go about armed so long as you were a peaceable citizen.
RKBA was included in state constitutions because of how justly important a right it was viewed as being and because the 2nd Amendment did not bind the states.
In terms of RKBA, it is important to remember how it was regarded in the aftermath of the Revolution. RKBA was seen as being a God given right above and beyond the power of any legislative body or executive to infringe upon. Whether there was written protection for it or not, it was viewed as being akin to breathing air. It was something free men could do as a matter of course. If registration, licensing, background checks, "assault" weapon bans etc had been attempted in, say, 1800 one of three things would have occurred: nullification, negation by the courts, violent revolution. If you were a free white man it was your absolute right to go about armed so long as you were a peaceable citizen.
RKBA was included in state constitutions because of how justly important a right it was viewed as being and because the 2nd Amendment did not bind the states.
Ohio Gun Guy
Member
^ Yes, but after the Civil War, in which some States had trampled the rights of it's Citicens (Slaves, Former Slaves) the 14th amendment was enacted to apply the BOR against the states. Previously it was believed that the States were the "Protectors" of freedom and the Federal Government was the one not to be trusted. But they proved that wrong! Therefore, the BOR was incorporated against all levels of Governement. States had originaly demanded that the BOR be included for ratification. Most states also echoed the BOR in the respective state constitutions to ensure the rights were protected againts the states also.
So the answer is Yes and No. Not formally until the 14th amendment, but yes many states echoed the BOR in thier State Constitutions.
So the answer is Yes and No. Not formally until the 14th amendment, but yes many states echoed the BOR in thier State Constitutions.
Caliper_Mi
Member
...or to the people.
So, I'd believe that when the BOR says "the right of the people", that those powers were held by the people and that no level of government could infringe on them.
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