klsim12The 14th amendment, section 1 has been used to “incorporate” the Bill of Rights onto the States?
Whereas I always assumed that the Bill of Rights pertained to the states, the statement that the 10th Amendment makes is that all powers not vested into the federal government are maintained by the States. Therefore, they can do anything they want (other than things expressly prohibited by the states in the constitution)? Luckily most States’ constitutions codified the right to bear arms, even Illinois, to my surprise. However, the recent 7th Circuit Court of Appeals ruling invalidated Illinois gun-carry laws (and in a previous Supreme Court case, McDonald vs. Chicago where they incorporated the 2nd amendment explicitly by using the Due Process clause of the 14th) saying the state violates the 2nd amendment, and therefore, Illinois has to come up with a carry-law. You can imagine the fighting going in our legislation! Even so, it seems that Illinois has already gone against its own Constitution by being the ONLY non-carry state of the union.
I thought this was a great victory (pending what Illinois comes up with that is), however, the Tenth Amendment Center posted an article (http://tenthamendmentcenter.com/2012/12/30/privileges-and-immunities-an-overview-of-the-14th/) saying that we can’t have our cake and eat it too, in that, if we are fighting against unconstitutional federal laws claiming supremacy over State laws, then incorporating the Bill of Rights onto the States falls under the same argument and we should not cheer this as a victory.
I’m having trouble with this thesis. Did the Founding Fathers assume that States wouldn’t trample on people’s freedoms? Can the states squash Free Speech? Dis-arm the populace? Suspend Due Process?? Does the 14th amendment really say that the Bill of Rights pertains to all the States?
I would be most interested in Kevin’s, Brion’s, and Tom’s views on this.