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[Natalcya Katla]

I was a bit imprecise, admittedly. The Bill of Rights does make guarantees toward individuals, but originally pretty much only as far as Federal legislation was concerned. Individual states were under no real obligation to make the same guarantees to their respective citizens, essentially meaning that in practice, an individual American citizen's actual legal rights was decided by his or her state of residence, not by the Federal Constitution. Also, the Bill of Rights, from my understanding, was introduced largely to placate those states which had been hesitant to ratify the Constitution in the first place. Hence my position that the Bill of Rights was originally about the Federal government promising to stay out of the business of its participant states, not about guaranteeing the legal rights and freedom of any and all of its citizens.

I: Religion, Speech, and Assembly - private, State only by a stretch.

This Amendment did not put any restraint on state governments until the passing of Amendment XIV at the earliest, and in practice not until the process beginning with Gitlow v. New York in 1925. Individual states historically made numerous laws restricting speech, religion and free assembly. Breach of peace laws would ban some public protests; some states collected religious taxes; pro-abolition literature was banned in the Antebellum South.

II: Right to bear arms, admittedly to protect a "free State."

As mentioned, I believe that this was originally primarily a safeguard against Congress disarming the member states of the Union. Admittedly, the states don't actually seem to have been very restrictive themselves in this regard, historically. I would not be surprised if even free blacks were prohibited from carrying weapons in most or all of the Antebellum South, but I don't actually know. The earliest example of an actual local gun control law I can think of at the top of my head was the one enforced by Wyatt Earp in Dodge City, and I have no idea how mindful he was of Constitutional semantics.

III: Right not to be stuck housing soldiers in your home. Private.

True, though since the army as such is and has been a Federal institution, it doesn't really restrict state law in any meaningful way. It can easily be read as a guarantee to individual states that the Federal government won't impose on the hospitality of their respective citizens.

Interestingly (and as an aside), Alistair Cooke in his US history documentary series claims that Amendment III still allows for American soldiers to be housed in the private residences of foreign (specifically, British) nationals, and that the old legal precedence established for this allowed for American soldiers to be quartered in British homes during World War 2. I have seen no second source confirming this, but I suppose it's possible the question could have been raised during, say, the War of 1812.

IV: Right against unreasonable search + seizure. Private.

Not actually binding on state and local law until Wolf v. Colorado in 1949.

V: Due process, etc.. Private.

In practice only made binding on the states with the passage of Amendment XIV.

VI: Speedy & public trial, etc.. Private.

Same as above. Did not in practice extend to most Americans until the Supreme Court took the states to task over Amendment XIV, well into the 20th Century.

VII: Trial by jury. Private.

The wording here is "any Court of the United States", which I strongly suspect was taken to mean "any Federal Court" up until the passing of Amendment XIV at the earliest.

VIII: No excessive bail. Definitely private (how exactly would you bail a state?)

Look to the story of Francisco Pizarro and Atahualpa for an answer to your question. :-P

Admittedly, ransom and bail are not quite the same, but setting a ridiculously high bail for a prominent individual suspect (such as a state representative or notable) could conceivably be used to screw over the entire state politically. And who else would you even want to set a ridiculously high bail for, except a politically troublesome person?

IX: Naming some rights does not disparage others held by the people. Private.

An entirely vague amendment which, again, places no inherent limits on state and local law. It's been used to argue both for and against the legality of abortion.

X: Powers not named for the federal gov't in the Constitution are reserved to the States, or to the people. State + private.

Entirely States' rights except in the Territories, and in the Territories it wouldn't infringe on States' rights anyway.


In conclusion, I should note that the source I'm basing a lot of my understanding on is American Government - Roots and Reform, by Karen O'Connor and Larry Sabato.

[Aria Jenneth]

Natalcya:

Now you're making better sense. However you (and your source) should be extremely cautious when trying to read the framers' minds. What the hell was going through the framers' heads as they established both the Constitution and the Bill of Rights is profoundly unclear, a core flaw of "constitutional originalism" as practiced by the likes of Clarence Thomas. A few of them left us their thoughts, but the idea of the framers as some kind of divinely inspired writers' circle working on consensus is a myth. The framers were a fractious lot, almost as divided as Congress is today. The quarrel over "States' rights" in the U.S. is longstanding, and existed in spades at the time.

We fought a civil war over it, and the damned issue still isn't dead.

The Bill of Rights may have been largely interpreted to protect individuals from the federal, not state, government for many a long year, but bear in mind who was being protected. It's mostly not the states, even if they once were allowed to engage in behavior the federal gov't was not. "Not binding on the states" is not the same as "protecting the states."

[Natalcya Katla]

Oh, I'm not intending to promote constitutional originalism. I'm sorry if I gave that impression. I really don't think the intentions of the original creators necessarily should have any impact on how a law is interpreted 200 years after it's made. Interpretations (and the laws themselves) need to evolve with the times, certainly.

As a historian (not as a lawyer, mind, which I'm not by a far stretch), however, I am still compelled to try to make sense of past decisions, which does involve a certain amount of mind-reading. I do agree with you completely that the Framers were a fractious lot, and I don't see the Bill of Rights (or the Constitution as a whole, for that matter) as being divinely inspired at all. What I see is a politically sensible compromise which a majority of the delegates were able to agree upon, well designed to soothe the worries some of the thirteen countries (as i essentially see the states as originally being) making up the Union at the time might have about the Federal government infringing on their local sovereignty. The fact that the states were not required to guarantee these same rights to their respective citizens, and historically did not for a long time in numerous ways, seems to support this interpretation.

My comment about the 2nd Amendment was not intended as a value judgement, but as an input to the already ongoing discussion about that amendment taking place in this thread. It was intended to challenge the impression some people seem to have about the Bill of Rights always having guaranteed these rights to every citizen anywhere in the United States. It's taken a whole lot of history and a couple extra amendments for it to get from where it was originally to where it is now, and that's the argument I was trying to make.

[Katrina Oniseki]

I love this discussion, but maybe this should be split into a thread about the U.S.?