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Thread: 14 Amendment ... ?

  1. #1
    Regular Member ocholsteroc's Avatar
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    14 Amendment ... ?

    14th Amendment
    Amendment XIV
    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.

    I am confused. Could this be used in a lawsuit for like GMU/ Hawaii / Detroit's problem with guns??

    It clearly states, "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."

    Meaning the 2nd Amendment?

    Or am I reading this wrong?
    Last edited by ocholsteroc; 02-07-2011 at 10:40 PM.
    How come a DUI you can get your driver licence back, which it is a privilege. But if commiting a felon, even something non violent like stealing, you are denied your constitutional rights for the rest of your life?
    If you don't support the Second Amendment to the Constitution, what other parts of the Constitution do you reject?
    More restrictions on guns? how about restrictions on chainsaws and knives?

  2. #2
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    Review McDonald v Chicago.........
    "Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety." Benjamin Franklin

  3. #3
    Regular Member SAvage410's Avatar
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    Alan Gura argued the McDonald case before SCOTUS and stressed the P&I clause. The NRA wanted time as well, and presented their case based on the Due Process clause. McDonald was decided narrowly on the Due Process basis. Whether or not that victory could be extended to the venues you mentioned will be determined by many more lawsuits, I'm afraid.

  4. #4
    Accomplished Advocate user's Avatar
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    Northern Piedmont of Virginia
    The "privileges and immunities clause" has often been advanced as the only sound basis for the imposition of the Bill of Rights upon the states. That theory has been shot down by the courts over and over, despite the "plain meaning" of the text.

    Instead, the courts began, early in the Twentieth Century to assert that certain selected parts of the Bill of Rights should be applied to the states under the "due process clause" of the same amendment. That process was called, "substantive due process". This is obviously hogwash, since substance and process are two different things. The courts have ruled over and over that agents of the state who violate the procedural rights of citizens of the state by violating statutes regarding how things are to be done (i.e., "process") is not a violation of the "due process clause". So, for example, Virginia has a statute that requires an arresting officer to be in uniform and displaying his "badge of authority". There is also a statute that requires that each police department have "a uniform". Well, the word, "UNI-form" means a single mode of attire, that will be alike for everyone. Not just an officially designated suit of clothes. A police department is not entitled to have multiple suits of clothes for police officers, and if there are multiple suits (traffic cop, swat team, etc.), then there is no single "uniform". Hence, every arrest by a police officer in Virginia is technically unlawful. A clear violation of the due process clause. But the courts have repeatedly "interpreted" the due process clause to require certain substantive rights, but not that process which is due under the laws of the state. It's amazing to read these cases and see how clever they can be about "interpreting" their way around the text.

    Now, here's the kicker: "substantive due process" was a matter of "selective incorporation" until recently. That meant that certain identified rights contained in the Bill of Rights were deemed to apply to the states via the due process clause of the 14th Amendment if, as, and when, the U.S. Sup. Ct. said so. In doing so, the courts routinely assumed that the "rights" applied in exactly the same way to the states as to the federal government. Well, a person has no absolute right of free speech under a state's laws unless the state's constitution specifically says so, or pursuant to statutes. So, for example, in Justice Holmes' famous formulation, "you can't shout 'fire' in a crowded theater". Slander and libel can be regulated. The right to keep and bear arms can be regulated (though not in Virginia, Article 1, Section 13, Const. of Va. - but try telling a court that "shall not be infringed" means "shall not be infringed").

    I assert that there is a substantial (though not a "good") reason why the federal courts have gutted the "privileges and immunities" clause entirely, and substituted substance for procedure in the "due process" clause. If the privileges and immunities clause were given real effect, it would require an absolute application of the Bill of Rights to citizens of the states, because the Bill is couched in absolute language. By adopting a method of applying state law to the federal government through the due process clause, the absolute character of the rights enumerated is wiped out; the rights are now subject to "reasonable regulation".

    The governmental structure defined by the Constitution requires two different kinds of government with different powers and sovereignty. The state and federal governments are two different kinds, not levels, of government. The federal courts have "interpreted" the Constitution in such a way as to maximize the power of the United States with respect to both the states and the citizens.

    Now consider the recent decision in Heller v. the City of Washington, generally hailed as a big victory for 2nd A. advocates. What that decision really did is to cancel out the "selective incorporation" doctrine and substitute a theory that says that the Bill of Rights applies to the states unless there's some powerful reason for excluding some part. But notice Justice Scalia's use of the phrase, "subject to reasonable regulation". What he's done is to put the final nail in Federalism's coffin, and he used the 2nd A. as the trojan horse he used to get us to buy into it. It was a trick. If your rights are subject to reasonable regulation, as someone else defines "reasonable", then you have no rights, no rights at all. That decision stands for the proposition that a citizen has no rights as against the federal government.

    The process began with Marbury v. Madison, which had nothing to do with the principle of judicial review (a concept invented in England by the Court of King's Bench centuries earlier), and which stands for the proposition that the Constitution, rather than the charter and basis of federal law, is itself federal law, and thus means whatever the United States says it means. We had a war over that principle, when we decided who gets to decide what "property" is. As far as the law is concerned, that issue is now safely put to rest. You have no rights except what the United States, in its infinite mercy and largess, may decide is "reasonable".

    That's why the United States Supreme Court has decided, and repeatedly decreed, that the privileges and immunities clause doesn't mean anything.
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    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

  5. #5
    Regular Member t33j's Avatar
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    Quote Originally Posted by user View Post
    Thanks for your contribution. I always enjoy (maybe that's not the right word) reading them.
    Last edited by t33j; 02-08-2011 at 07:51 AM.
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  6. #6
    Regular Member wylde007's Avatar
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    Angry The Dastardly 14th Amendment

    Erased the "republic" of separate, sovereign states and created the federal empire wherein all were now citizens of the u.S. instead of their respective states.

    It was ratified without full lawful consent of the states - formerly "rebellious" states were either coerced into ratifying or their abstinence was stricken from the vote and not counted against the tally.

    Ratification of the 14th was used to not only supposedly guarantee that the Bill of Rights applied to all states (which it had up until that point, there was no need for "incorporation", it just "was") but to also foist all future legislations and bureaucratic mandates upon all of the states and make them liable and subservient to the federal government, something that the founders NEVER INTENDED.

    The 14th Amendment is one of the worst, if not THE WORST Amendment ever incorporated. Next to Lincoln, it did more to destroy the concept of a Constitutional Republic than any other event (maybe the Federal Reserve Act) in uS history.
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    Quote Originally Posted by user View Post
    .....insert a lot of fancy language here.....
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    Quote Originally Posted by Armed View Post
    Damn, User - I need your number to keep in my wallet. Not that I plan on getting arrested for anything, but should that terrible day ever come - I want you on speed dial!
    The link to contact User is right there in his signature line, including his number.
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