Bill of rights?

Discussion in 'Politics & Law' started by SmilinSilhouette, Mar 4, 2010.

  1. SmilinSilhouette

    SmilinSilhouette Registered Member

    In reading the oral arguements of McDonald v Chicago I wondered when it was decided the Bill of Rights do not always apply? My understanding of the Bill of Rights is that they are the affirmative rights reserved to the citizens (thus negative rights of government) meaning they spell out what the goverent does not have the authority to deny to the citizens. Basically stating what the government can not impose upon the governed.

    http://supremecourtus.gov/oral_arguments/argument_transcripts/08-1521.pdf

    It would seem that there is some interpretation that these limits apply only to the federal government and not the states, except through incorporation. Can someone explain the legal precedent that would allow the states to override the rights of citizens?
     

  2. CaptainObvious

    CaptainObvious Son of Liberty V.I.P.

    The intent of the Bill of Rights was that they would only apply to the federal government. That was changed after the Supreme Court ruled that the 14th amendment incorporated the Bill of Rights as applying to the states.

    There is no legal precedent that the states can override the rights of its citizens. I say that because to do so would not be constitutional thus not legal, only legal in the sense of the "because we say so" argument that so many courts seem to adhere to recently.
     
  3. SmilinSilhouette

    SmilinSilhouette Registered Member

    Thanks for replying CO I hoped that you would.

    I have a hard time understanding/agreeing that the bill of rights was only intended to limit the federal government. I always thought the rights of citizens, as enumerated in the bill of rights, superceded all governmental authority, including that of the states.

    Wouldn't that interpretation allow for the state to establish an official religion, etc.?
     
  4. CaptainObvious

    CaptainObvious Son of Liberty V.I.P.

    Initially, yes. States were allowed to establish an official religion if it wished and some came close to it. George Mason even made a speech about it, about what states may establish one. None did as we know.

    The incorporation of the bill of rights through the 14th amendment as applying to the states are a part of what has lead to a gross interpretation of the Establishment Clause.
     
  5. SmilinSilhouette

    SmilinSilhouette Registered Member

    WTF?!? I had no idea. Is there a reference you can point me toward that explains this so I might have a better understanding?

    Given that, there seem to be two approaches, incorporation under the 10th amendment and privileges or immunities under the 14th. It would seem the SCOTUS is not inclined to consider privileges or immunities angle. How is it the slaughter-house case would have somehow limited the privileges or immunities clause of the 14th Amendment.
     
  6. CaptainObvious

    CaptainObvious Son of Liberty V.I.P.

     

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