Original pages. Best For. Web, Tablet. Content Protection. Flag as inappropriate. It syncs automatically with your account and allows you to read online or offline wherever you are. Please follow the detailed Help center instructions to transfer the files to supported eReaders. More related to constitutional law. See more. A Constitution for All Times. A prominent lawyer and legal scholar describes her vision of an evolving Constitution, examining current legal issues that range from health care to gun control.
Gabor Attila Toth. More than two decades after the post-communist constitutional transition, Hungary got into the spotlight again. As a result of the elections, the governing majority gained two-thirds of the seats in parliament, which made constitutional revision exceptionally easy, bypassing extensive political and social deliberations. In April , on the first anniversary of the election, a brand new constitution was promulgated, named the Fundamental Law. The Montana State Constitution. Professor Emeritus Larry Elison. Montana's state constitution was created during the early s.
Progressive, innovative and pragmatic, it combines a strong concern for individual rights, personal liberty, and individual dignity while seeking to keep government open and responsive to the will of the people of Montana. It also stresses rights to a clean and healthful environment. The Montana State Constitution is the first reference guide to offer an in-depth analysis of the state's constitutional history.
In it, Larry Elison and Fritz Snyder provide the text of the constitution, its meaning, and its legal interpretations. It is an excellent research tool for those interested in Montana's constitutional history and case law, and it includes a comprehensive bibliographic essay dealing with available primary and secondary research sources. Previously published by Greenwood, this title has been brought back in to circulation by Oxford University Press with new verve.
Re-printed with standardization of content organization in order to facilitate research across the series, this title, as with all titles in the series, is set to join the dynamic revision cycle of The Oxford Commentaries on the State Constitutions of the United States. The Oxford Commentaries on the State Constitutions of the United States is an important series that reflects a renewed international interest in constitutional history and provides expert insight into each of the 50 state constitutions.
Each volume in this innovative series contains a historical overview of the state's constitutional development, a section-by-section analysis of its current constitution, and a comprehensive guide to further research. Under the expert editorship of Professor G. Alan Tarr, Director of the Center on State Constitutional Studies at Rutgers University, this series provides essential reference tools for understanding state constitutional law.
Books in the series can be purchased individually or as part of a complete set, giving readers unmatched access to these important political documents. The Indiana State Constitution. William P. McLauchlan provides an outstanding constitutional and historical account of the state's governing charter. In addition to an overview of Indiana's constitutional history, it provides an in-depth, section-by-section analysis of the entire constitution, detailing important changes that have been made since its initial drafting. This treatment, which includes a list of cases, index, and bibliography, makes this guide indispensable for students, scholars, and practitioners of Indiana's constitution.
The Kansas State Constitution. Professor Francis H. Formally, Kansas still operates under a constitution dating from However, its present day basic law differs importantly from the original text. Kessler ,  in which the Oregon Supreme Court declared void an Oregon statute  that prohibited "possession of a slugging weapon"--in this case, a billy club--in the defendant's home. Brown  for the proposition that concern about the dangers of standing armies was a major motivation behind the right to keep and bear arms, but that the right also reflected a personal self-defense requirement.
The dispute about which arms are protected represents one of the significant differences between the classical liberalism and civic republicanism theories. For this reason, the court discussed which arms the Oregon Constitution protects, and concluded that. Up to this point, the Oregon Supreme Court fell squarely in the classical liberal and civic republicanism traditions of judicial interpretation of the right to keep and bear arms. The court then drew a line between constitutionally protected arms and unprotected weapons:. Because the Oregon Constitution's provision included "defense of themselves,"  the court concluded that defensive arms, even though "unlikely to be used as a militia weapon," would include any weapon commonly used for personal defense.
We do not wish to criticize the Kessler decision for not taking the right to arms seriously. Kessler is a careful decision that works hard to protect the rights of people who wish to own firearms, while drawing a workable test that clearly excludes modern military weapons from ordinary civilian possession. However, as a historical matter, the court may have been wrong to imply that the drafters of the Constitution could not imagine the automatic weapons developed as a result of the mid-nineteenth century's industrial advances.
Instead, this era perfected concepts that were already well-known or under development. As early as , Palmer presented a paper to the Royal Society describing the operating principle of the modern gas-operated semiautomatic firearm. Similarly, James Puckle's "A Portable Gun or Machine called a Defence," patented in May , bears many similarities to the Gatling gun, the first of the practical machine guns.
But it demonstrates that the concept of machine guns existed, even if the metal working technology of the day was not capable of making the weapon. The court also erred in asserting that "advanced weapons of modern warfare" such as "automatic weapons," "have never been intended for personal possession and protection. Nevertheless, from the beginning they had a civilian market: "As early as H. Raymond, the owner of the New York Times , had bought three Gatling guns to protect his offices against feared attacks by mobs of people protesting against the Conscription Act of March of that year, of which the Times had come out in support.
Company goon squads used machine guns in suppressing strikes throughout the period between the Civil War and the s--a disreputable use, but lawful under the laws of the day. The Thompson submachine gun provides the best example of the complex relationship between private and public ownership. Since the anticipated government contracts did not materialize, the "Tommy" guns were successfully marketed to private citizens for self-defense--especially in New York City, where the Sullivan Law had made it difficult to legally buy handguns.
Blocker that while the state legislature could prohibit the carrying of a concealed billy club, the statute in question  had prohibited possession of a billy club anywhere--and had made no distinction between concealed carry and open carry.
The legislature could prohibit carrying arms with criminal intent; it could prohibit carrying concealed arms; but unless some form of carry was protected, the statute would violate the constitutional protection of the right to bear arms for self-defense. In State v. Delgado , the Oregon Supreme Court faced a precursor to the "assault weapon" issue, a case involving switchblade knives. The Oregon Supreme Court rejected the prosecution's evidence that switchblade knives are "almost exclusively the weapon of the thug and delinquent,"  calling the material "no more than impressionistic observations on p.
The court then elaborated on the historical test that had first been announced in Kessler :. After a setting forth a history of pocket knives, fighting knives, sword-canes, and Bowie knives, the court found that the switch-blade knife was of the same "sort" as the knives in common use in By acknowledging that "repeating rifles" were under development when Oregon adopted its Constitution, the court strongly implied that repeating rifles were constitutionally protected, a point which will be important when we examine the "assault weapon" decision.
While the Oregon Court of Appeals had been reversed in Kessler  and Delgado ,  subsequent decisions of the intermediate court appeared to fall in line with the state supreme court's approach. In Barnett v. State , the court of appeals recognized the blackjack as an "arm" protected under the Oregon Constitution. Smoot , the court of appeals upheld a conviction for concealed carry of a switchblade knife, since the statute in question restricted only the manner of carrying this constitutionally protected arm.
Each of the Oregon decisions involved a weapon that has an unsavory image: a billy club, a switch-blade knife, and a blackjack. Yet the Oregon courts recognized that while these weapons were sometimes used by criminals, they could also be used for lawful defense. The next decision, however, showed that the Oregon Court of Appeals found certain weapons more unsavory than a switch-blade knife. In , Multnomah County where Portland is located passed Ordinance , a mild "assault weapon" regulatory law.
It also required "assault weapons" in a public place "to be unloaded, locked in a gun case and, if in a vehicle, placed in an inaccessible portion of the vehicle when being transported. Multnomah County was filed seeking declaratory judgment against the county ordinance, as well as against a city ordinance charging a fee for background checks on gun purchasers. The Oregon Supreme Court's Kessler decision acknowledged both the classical liberalism theory "weapons used by settlers for Kessler protects both militia weapons and personal defense weapons.
The later decisions Blocker , Delgado , Barnett , and Smoot involved weapons that were not military weapons, and consequently those cases did not discuss the civic republicanism theory. Yet the Oregon Court of Appeals, in deciding Oregon State Shooting Ass'n , ignored the civic republicanism theory of the right to keep and bear arms.
Kessler does not protect modern weapons of warfare, defined as "automatic weapons" and those "used exclusively by the military;" however, it does protect the sort of weapons used for militia purposes in The court of appeals might as well have cited a decision stating that both commercial speech and political speech were protected, and then applied only a test for commercial speech from a later case.
In Oregon State Shooting Ass'n , the court found that, under the Delgado personal defense test, a weapon must satisfy three criteria: 1 although the weapon may subsequently have been modified, it must be "of the sort" in existence in the mid-nineteenth century; 2 the weapon must have been in common use; and 3 it must have been used for personal defense. The first of these criteria is nebulous, as the majority on the court of appeals observed.
The incorrect statement of fact was that "the technology for automatic weapons did not exist until the twentieth century The court of appeals was simply wrong concerning the twentieth-century birth of automatic weapons. If we define "automatic firearm" in its narrowest p. The shooter does not need to press the trigger over and over. Rather, he need squeeze it only once, and until he releases, bullets will be loaded and fired automatically.
Hiram Maxim demonstrated the first successful automatic weapon in More importantly, weapons of the same "sort"--as measured by their ability to fire bullets rapidly--were in use or under development at the time Oregon adopted its Constitution. While functional automatic weapons were not invented until , functional machine guns had come decades earlier. Although the terms "machine gun" and "automatic" are sometimes used interchangeably, they are not identical. An automatic gun is a subset of machine guns.
A "machine gun" is a firearm in which rounds are loaded and fired by the operation of machinery--even if human action is required to operate the machine. As noted above, prototypes of machine guns were centuries old, although mass production of such weapons had proved to be beyond the skills of the time. Its commercial production demonstrates that machine guns were not only a recognized concept, but operable devices when the Oregon Constitution was adopted.
A major advance in machine gun technology came in , when the Union Army bought small quantities of the Ager Gun, a crank-operated machine gun. Unlike most previous machine-gun models, which had needed as many barrels as there were rounds to fire, the Ager fired all of its rounds through a single barrel. The gun, also known as the Ager Coffee Mill, enjoyed only limited success, because the barrel would overheat.
In contrast to the automatic weapons developed two decades later, the Gatling gun did not use the energy from the gun-powder explosion to perform the work of reloading and firing the gun. Instead, the Gatling gun was powered by a hand crank. Thus, the Gatling gun was not an automatic firearm, but it was a machine gun. The court of appeals was therefore plainly wrong in its factual assertion about the development of firearms. If the case before the court of appeals had involved automatic weapons, the error would have been harmless, since Kessler had already stated that automatic weapons did not fall within the p.
If the question before the court of appeals was whether to regulate automatic weapons, based on the Kessler decision, the error about when automatic weapons were developed would be relatively minor, since Kessler stated that automatic weapons were not protected. The problem came when the court of appeals attempted to reason backward from the fact that automatics are not protected to prove that semiautomatics are not protected.
First, the court of appeals reiterated the trial court's claims that the named "assault weapons" "can be readily converted back into the fully automatic military configuration.
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As the United States Code states:. In other words, by long-standing federal law, if a gun can be readily converted into an automatic, it is an automatic. In , the Bureau of Alcohol, Tobacco and Firearms "BATF" used the above-quoted statute to classify as an automatic a readily-convertible semi-automatic. Out of deference to the reliance interests of consumers, the BATF did not retroactively classify already-sold open-bolt MACs as machine guns. But instead, the court of appeals used the BATF ruling about the MAC to assert that all guns affected by the ordinance were readily convertible.
If an agency has the job of separating the sheep from the goats, examines an entire herd of animals, and removes only a single sheep, the agency's action is evidence that the other animals are not sheep. Delgado , the Oregon Supreme Court implied, in passing, that the Oregon Constitution protected nineteenth-century repeating rifles and their twentieth-century counterparts.
The court of appeals held that a semiautomatic weapon could not be "a 'counterpart' of a mid-nineteenth century repeating rifle"  because the operating mechanism for automatic and semiautomatic weapons did not exist in To determine the meaning of "counterpart," the court of appeals stated that "counterpart" meant "to seem like a duplicate.
If that is what the court of appeals meant, the court was rejecting the controlling rule of the state supreme court, which has already found that weapons like switchblade knives which are neither duplicates nor seem like duplicates of weapons are constitutionally protected. Reading the court of appeal's "seems like a duplicate" language more generously, the court might be saying, "if it quacks like a duck and tastes like a duck, it should be treated as a duck. Even if it is a goose. Functionally, a semiautomatic rifle is not so different from the Volcanic later Henry rifle that was under development just before and after adoption of the Oregon Constitution.
Patents were issued in for the predecessor to the Volcanic rifle, which in turn, achieved massive commercial success as the Henry, introduced in Like a semiautomatic and every other common gun and unlike an automatic or a machine gun , the Henry fired only one round per trigger press. To fire another round, the shooter would have to press the trigger again.
One of the most comprehensive histories of repeating firearms clearly recognized the lineal relationship between the guns like the Henry and modern rifles: "These were the beginning of the long line of military repeating shoulder arms that has stretched toward us through the box magazine, bolt action, clip loading, and finally the automatic types of the present day The court of appeals opined that the Constitutional Convention would have found it "astonishing" that some of the "assault weapons" were p.
Henry rifle advertising claimed that the rifle could fire sixty shots a minute. One ostensible difference between the banned "assault weapons" and weapons under development in the s is the detachable magazine. Many of the weapons covered by the Multnomah County ordinance use detachable magazines, allowing rapid reloading.
Although there were no detachable magazine firearms in the s, the Colt revolver's cylinder was removable, allowing for relatively rapid reloading. Thus, one may argue that modern magazines are merely a refinement of the rapid reloading technology of the revolver. In any case, neither the Portland law nor the court of appeals referred to the detachable magazine as the distinction dividing "assault weapons" from those not regulated.
The second test listed by the court of appeals concerns "common use. The Colt revolver combined two of the functions, repeating and rapid reloading, that are common to the weapons regulated by the Multnomah ordinance. The technological advantage of the Colt revolver over existing weapons was dramatic; one might even argue that they were the "assault weapons" of their time: p.
No serious person could argue that the Colt revolvers were not commonly used. Instead, the court of appeals ignored the Colt's place in history, and focused on the Volcanic rifle. The court of appeals insisted that because the Volcanic itself was not commercially successful, there were no counterparts to "assault weapons" in "common use" in Oregon in Finally, the third criterion used by the court of appeals in applying Delgado 's three-part test was whether the weapon was used for personal defense.
The Kessler decision made this distinction between "advanced weapons of modern warfare" and the weapons of personal self-defense. The fact that Multnomah County found it necessary to regulate "assault weapons" suggests that there were a significant number of non-military owners of such weapons. Indeed, none of the semiautomatic firearms regulated by Multnomah County is used by any military force anywhere in the world, because the firearms are semiautomatic, and modern militaries use automatics.
Semiautomatic firearms, which constitute about half of the current supply of handguns and a large fraction of the supply of rifles and shotguns, are frequently used for self-defense. In contrast to the Oregon cases, right to arms jurisprudence in Colorado has never looked to conditions surrounding the creation of the state constitution.
Nor have the courts stated that evidence of original intent is irrelevant. The Colorado Statehood Constitution of included the arms guarantee as it still exists today. The Colorado arms guarantee was taken from the Missouri Constitution of Moreover, the framers of the Missouri Constitution felt that the state legislature would need authorization to regulate the carrying of concealed weapons, since a Kentucky state court had held that "a provision in the Constitution declaring that the right of any citizen to bear arms shall not be questioned, prohibited the Legislature from preventing the wearing of concealed weapons.
As to the scope of protected arms, a Missouri delegate explained the federal Second Amendment in part as a right to own and carry militia arms: p. As the Colorado Supreme Court had noted in , "The framers looked to other states as models for almost all of our constitutional provisions. It may be remarked that whatever construction is given to these clauses, [the federal Bill of Rights] will also apply to the same or similar provisions in the state constitutions.
The right of the people to keep and bear arms. The object of this clause is to secure a well-armed militia But a militia would be useless unless the citizens were enabled to exercise themselves in the use of warlike weapons. To preserve this privilege, and to secure to the people the ability to oppose themselves in military force against the usurpations of government, as well as against enemies from without, that government is forbidden by any law or proceeding to invade or destroy the right to keep and bear arms.
The Colorado framers and the people in were familiar with the latest repeating firearms and the continuing technological revolution in arms. The Winchester Model a successor to the Henry was advertised in as firing "at a rate of one hundred and p. Thus, the issue that was at least arguably a close call with regard to the Oregon Constitution of was well-settled by the time of the Colorado Constitution of Rapid fire, powerful firearms, suitable for both military and civilian use, were ubiquitous, and were commonly sold to civilians. Further evidence about original intent is supplied by the most important jurist in early Colorado law--E.
Wells--a highly respected justice of the territorial and the state supreme court, a delegate to the constitutional convention, author of the leading nineteenth-century treatise on Colorado law, and a president of the Colorado Bar Association. Item 68 is: "The provision that the right to bear arms shall be [not called? State held that the Texas Constitution "protects only the right to 'keep' such 'arms' as are used for purposes of war.
All of this history makes it hard to believe that, under the original intent of the Colorado Constitution, semiautomatic firearms can be outlawed simply by dubbing them "military" and "rapid-fire. No such demonstration was attempted. While the U. Supreme Court has stated that proof that the framers of the Constitution would have found a particular law offensive will suffice to declare the law unconstitutional,  other courts have not been so deferential to original intent. For example, a court may view original intent as only one factor among several to be considered.
Or a court may simply declare that it does not care what the original intent of the Constitution was. The Colorado Supreme Court, when faced with overwhelming, uncontested evidence of original intent, could have done the same thing. But the court did not do so. Instead, it simply ignored the entire issue of original intent as if it had never been raised. The Oregon Court of Appeals, in suggesting that the state constitution protects only guns which "seem like duplicates" of guns, seemed to reject the idea that constitutional rights evolve along with the technology to exercise them.
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It is true that the authors of the Second Amendment and of the Colorado, Ohio, and Oregon constitutions never specifically intended to protect the right to own semi-automatics since such guns did not exist , just as they never intended to protect the right to talk privately on a telephone or to broadcast news on a television since telephones and televisions did not exist either. To assert that constitutional protections only extend to the technology in existence in or would be to claim that the First Amendment only protects the right to write with quill pens and not with computers, and that the Fourth Amendment only protects the right to freedom from unreasonable searches in log cabins and not in homes made from high-tech synthetics.
Does "freedom of the press" in the Constitution's First Amendment, and its state counterparts, apply only to printing presses "of the sort" in use in ? Are printing technologies that rely on lead type protected, while xerographic processes are not? Is a pamphlet distributed on floppy diskette or through electronic mail unprotected? Should the Supreme Court p. The Constitution does not protect particular physical objects, such as quill pens, muskets, or log cabins. Instead, the Constitution defines a relationship between individuals and the government that applies to every new technology.
For example, in United States v. Katz ,  the Court applied the privacy principle underlying the Fourth Amendment to prohibit warrantless eavesdropping on telephone calls made from a public phone booth--even though telephones had not been invented at the time of the Fourth Amendment.
In , it was easy to start a newspaper. But today, starting a major paper requires large financial resources. The changed conditions provided a reason to uphold a law guaranteeing a right of reply to persons who were attacked in a newspaper. But the Supreme Court had no trouble rejecting changed conditions as a reason for retreating from the historical understanding of the First Amendment.
It is true that an individual who misuses a semiautomatic today can shoot more people than could an individual misusing a musket years ago. Since the Constitution was adopted, virtually all of the harms that flow from constitutional rights have grown more severe. Today, if an irresponsible reporter betrays vital national secrets, the information may be in the enemy's headquarters in a few minutes, and may be used to kill American soldiers and allies a few minutes later. Such harm was not possible in an age when information traveled from America to Europe by sailing ship.
Correspondingly, a libelous television program can ruin a person's reputation throughout the nation, a feat no single p. Likewise, criminal enterprises have always existed, but the proliferation of communications and transportation technologies such as telephones and automobiles makes possible the existence of criminal organizations of vastly greater scale--and harm--than before. In short, the proposition that the arguably greater dangers of semiautomatics justify a ban on modern firearms technology proves too much, since it allows a ban on many other modern objects used to exercise constitutional rights in harmful ways.
Virtually every freedom guaranteed in the Bill of Rights causes some damage to society. The authors of the Constitution knew that legislatures were inclined to focus too narrowly on short term harms: to think only about society's loss of security from criminals not caught because of search restrictions, and to forget the security gained by privacy and freedom from arbitrary searches. That is why the framers created a Bill of Rights--to put a check on the tendency of legislatures to erode essential rights for short-term gains.
Persons who find the above argument unpersuasive are not without a remedy. If the constitutional right to bear arms has become inappropriate for modern society because the people are so dangerous and the government is so trustworthy, then a constitutional amendment to abolish or limit the right may be proposed. But, it is not appropriate for courts to flout an existing constitutional guarantee, even if they personally think it is unimportant.
Recognizing that the right to arms is not limited to technology in existence when the particular arms guarantee was written does not mean that appropriate laws may not deal with new technologies. For example, although sound trucks did not exist when the First Amendment was written, they have been held to be within the scope of the First Amendment, while subject to reasonable time, place, and manner regulation. Accepting the evolution of firearms technology does not necessarily mean accepting the parade of horribles which typically ends with the question "what if everyone owned a nuclear weapon?
This suggests that the guarantee protects only arms which one can carry in the hands, and not tanks or jet fighters. If we want to examine historical conditions in more detail, we can see that the personal arms which existed at the time of the Second Amendment and the Colorado, Ohio, and Oregon constitutions were all hand-carried weapons which could be precisely aimed at a particular target. Such weapons included firearms, edged weapons, and bows. In contrast to weapons which can be skillfully directed to single targets, weapons such as grenades or other explosives cannot be directed at a single target, but can kill everyone in the area.
The historical reasoning would support constitutional protection for firearms accessories which make firearms even more accurate, such as scopes and laser sights, even though scope technology was not commercially applied to early firearms, and laser technology was not even contemplated. Likewise, should the weapon itself fire a precisely-directed laser, the laser gun itself would be protected.
In contrast, a new weapon which fired projectiles indiscriminately such as a device which fired dozens of arrows at once, at random angles would not be protected, even though the projectile itself an arrow clearly is within the historical intent of the right to arms. Finally, we should point out that the Oregon Court of Appeals could have upheld the Portland law with a much narrower, simpler rationale. In doing so, the court could have avoided making the radical, rights-eviscerating assertion that the Oregon Constitution protects only duplicates of the exact arms technology that existed in The Oregon State Shooting Ass'n concurring and dissenting opinion stated that the majority opinion "is an example of judicial manipulation of the constitution to meet a perceived localized social need.
They are rifles, pistols and shotguns. The authors of this article would not have upheld the Multnomah County law under any rationale, because we believe that the law did not have a close enough connection to public safety in terms of the guns at issue being commonly used in crime, and the gun restrictions having any real effect on crime , and because we believe that the Portland restrictions were more onerous than the Oregon dissenters did.
Nevertheless, the Oregon dissent represents a judicial approach which respects the right to keep and bear arms. The "assault weapon" cases also implicated the issue of whether the right to arms is fundamental. This issue never really arose in Oregon, since the focus was on the supreme court's historical tests. City of Denver ,  the issue proved to be more complex. The complexity arose from a difference among the members of the Robertson court concerning the need to decide whether the right to keep and bear arms in Colorado was fundamental in order to resolve the case.
The argument in favor of the right being considered fundamental ran as follows: all specific rights in the Colorado Bill of Rights are fundamental, p. The Colorado Constitution states the right to arms in forceful terms which are stronger than words used to delineate some other rights in Colorado Constitution:  "the right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.
Prior to the "assault weapon" case, the Colorado Supreme Court had reviewed two cases involving restrictions on the right to arms by law-abiding persons. The first case, People v. Nakamura ,  invalidated a state law prohibiting aliens from possessing a shotgun, rifle, or pistol:. The guaranty thus extended is meaningless if any person is denied the right to possess arms for such protection The Nakamura majority rejected the dissenting opinion's argument that a trial court may determine whether a specific firearm is possessed for the purpose of defense of home, person, or property.
The major gun law case in Colorado was City of Lakewood v. Pillow ,  a unanimous decision which invalidated a local ordinance which prohibited the possession of a revolver, pistol, shotgun or rifle, except within one's domicile, one's business, or at a target range, unless licensed by the city. Finding the ordinance to be "unconstitutionally overbroad," the court explained:. An analysis of the foregoing ordinance reveals that it is so general in its scope that it includes within its prohibitions the right to carry on certain businesses and to engage in certain activities which cannot under the police powers be reasonably classified as unlawful and thus, subject to criminal sanctions.
As an example, we note that this ordinance would prohibit gunsmiths, pawnbrokers and sporting goods stores from carrying on a substantial part of their business. Also, the ordinance appears to prohibit individuals from transporting guns to and from such places of business Several of these activities are constitutionally protected. Depending upon the circumstances, all of these activities and others may be entirely free of any criminal culpability yet the ordinance in question effectively includes them within its prohibitions and is therefore invalid.
A governmental purpose to control or prevent certain activities, which may be constitutionally subject to state or municipal regulation under the police power, may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. Even though the governmental purpose may be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. From the plaintiffs' viewpoint, Lakewood 's observation that the restrictive gun law impermissibly served to "broadly stifle fundamental personal liberties" removed any doubt about whether the right to arms was fundamental.
As a final argument, the plaintiffs pointed to U. Supreme Court language emphasizing that the courts have no authority to declare that some Bill of Rights freedoms "are in some way less 'fundamental' than" others: "Each establishes a norm of conduct which the Federal Government is bound to honor--to no greater or lesser extent than any other inscribed in the Constitution Moreover, we know of no principled basis on which to create a hierarchy of constitutional values The City of Denver responded to the plaintiffs' and the Attorney General's fundamental rights argument.
First, Denver asserted that not all Constitutional rights are fundamental. Defendants also argued that the supreme court in Lakewood had misapplied U. Supreme Court precedent on the First Amendment by using First Amendment overbreadth doctrine to analyze a gun restriction. Defendants also pointed to several post- Lakewood cases in the s where the supreme court had used the word "reasonable" in upholding restrictions on the possession of arms by convicted felons and drunks. Denver also pointed to decisions stating the right to arms is not "absolute. Although courts of sister states are not definitive interpreters of Colorado law, Lakewood had been prominently quoted by the courts of other states to invalidate firearms prohibitions, most notably for its statement that the right to arms is "fundamental.
What did the Colorado Supreme Court do with the fundamental rights issue? The court could have followed Lakewood and its progeny and again stated that the right to arms was fundamental. Or the court could have followed the Denver District Attorney's suggestion and revisited the Lakewood decision. Or the court could have followed Denver's advice and ruled that, regardless of Lakewood 's holding, subsequent decisions have construed the right to arms as non-fundamental.
The court did none of these things. In a concurring opinion in Robertson v. City of Denver , Justice Vollack subsequently promoted to Chief Justice stated that he considered the right to arms non-fundamental because it was, in his view, not an important part of p. In contrast, the majority opinion asserted that the Colorado Supreme Court had never decided whether the right to arms was fundamental--as if the court's repeated reference to "fundamental personal liberties" in Lakewood and its progeny had never been written.
Indeed the court carefully avoided quoting the "fundamental personal liberties" language. Having sidestepped the very issue that all litigants treated as the heart of the case, the court then went on to apply rational basis review to the ordinance in question--effectively treating the right to arms as non-fundamental, but without having the honesty to say so.
In Arnold v. City of Cleveland ,  history was no issue. The parties framed the issue in terms of fundamental rights and the Ohio Supreme Court settled that question at the outset, by declaring that the right to arms under the Ohio Constitution was fundamental. The Ohio Court, however, held that restrictions on fundamental rights are subject only to a reasonableness test.
Section A of this part examines how the Ohio court chose a reasonableness test. Section B of this part discusses the standard of review in Colorado, while sections C and D argue that the Ohio, Oregon, and Colorado courts could and should have declared the ordinances unconstitutional, without even needing to consider a standard of review.
In determining the constitutionality of an ordinance, we are mindful of the fundamental principle requiring courts to presume the constitutionality of lawfully enacted legislation. O'Leary, N. Toledo, N. Further, the legislation being challenged will not be invalidated unless the challenger establishes that it is p.
See also Hale v. Columbus, N. We will now turn to each of the three cases that formed the foundation for the Arnold standard of review; the cases are important not just to Arnold , but to how the Ohio court erred on all constitutional issues. O'Leary involved a challenge to municipal ordinances which prohibited individuals from purchasing, owning, possessing, or transporting handguns without an identification card. A duly enacted municipal ordinance is presumed constitutional; the burden of establishing the unconstitutionality of an ordinance is upon the one challenging its validity.
East Cleveland v. Palmer , 40 Ohio App. Appellee has failed to sustain this burden. Sections They are not vague. It is clear what is required: a firearm owner's identification card issued by either a non-resident's home municipality, or by the city of University Heights. The method for acquiring a card is clearly set forth in Chapter In O'Leary the trial court and intermediate appellate court both ruled that the University Heights ordinances were unconstitutional because of overbreadth, vagueness, and unenforceability.
Its decision centered on a discussion of three federal cases and one from the District of Columbia: Lambert v. California ,  United States v. Mancuso ,  United States v. Freed ,  and McIntosh v. In Lambert v. California the Supreme Court ruled unconstitutional a Los Angeles municipal ordinance which required convicted felons to register p. Her conduct would not ordinarily lead one to inquire about the lawfulness of the conduct. Additionally, the court found that registration of convicted felons is done primarily for the convenience of law enforcement agencies.
In United States v. Mancuso  the U. Court of Appeals for the Second Circuit reversed the conviction of a defendant for violating 18 U. Section , requiring convicted drug offenders to register with customs officials before and after leaving the country. Both the district court and the Second Circuit considered Mancuso's lack of knowledge about the registration requirement in making their decisions. Since the district court specifically found that there was 'no knowledge' of the statute, we hold that Mancuso did not violate 18 U. On practical, purposive grounds, it is difficult to understand how elimination of the requirement of knowledge would have furthered the Congressional aim to make detection of illegal narcotics importation easier When there is no knowledge of the law's provisions, and no reasonable probability that knowledge might be obtained, no useful end is served by prosecuting the "violators.
By imposing a knowledge requirement before penalizing a felon for exercising the right to travel, Mancuso seems to militate in favor of a knowledge requirement before penalizing a non-felon exercising the right to transport a firearm. United States v. Freed  limited Lambert and Mancuso 's passive activity defense. Defendant Freed was prosecuted for possession of unregistered p.
They are highly dangerous offensive weapons Washington ,  in which the District of Columbia Court of Appeals upheld the firearms registration requirement enacted by the District of Columbia in Both courts relied on Freed 's "dangerous or deleterious devices" rationale. Traditionally, the items held to be "dangerous or deleterious devices" have not been items for which Congress wants to promote the regulated use. The core of the O'Leary decision rests on a three-part test derived from the Lambert factors:.
First, mere passive conduct is not involved here. To violate the law, one must acquire possession of a firearm. Crow C. Drummonds , 43 Ohio App. Second, the p. Freed, supra ; United States v. Weiler, supra. Third, the gun registration ordinance involved here is not designed solely for the convenience of law enforcement agencies. Under these laws a person who worshipped God was free in matters of religious worship.
No resident could be deprived of life, liberty or property without a jury trial; the jury was to consist of twelve good men of the accused person's neighborhood. The accused could challenge the seating of up to thirty-five juries with no reason neces- sary; with a valid reason, there was no limit to the number of challenges he could have.
Other procedural guarantees which were incorporated included mandatory jury trials and the right of an accused to represent himself. To assure that these rights were observed, proprietors instructed that they "be re- corded in a fair table The New Hampshire Charter contained no personal rights provisions beyond guaranteeing the liberty of religious conscience to Protestants. The Pennsylvania Frame of Government, granted by William Penn, contained fairly extensive guarantees of per- sonal rights. Free men were authorized to elect the General Assembly, to plead their own cases and to have "justice speed- ily administered" by a twelve-man jury.
Religious toleration was accorded only to those "who confess and acknowledge the one Almighty and eternal God, to be the Creator, Upholder and Ruler of the World. A provision reminis- cent of Magna Carta guaranteed due process of law. Jury trials were assured to the accused. Bail was permitted except in cases of treason or felony. Quartering troops in private homes was prohibited in peacetime and martial law was prohib- ited. As long as they did not disturb the civil peace. Christians were assured of the freedom of religion. A small crisis developed when the new king refused to approve the legislation.
The New York Legislative Council re-enacted essentially the same guarantees in Although the charter lacked the permanence of the colonial charters, it then became law.
Constitutional Law: State Constitutions
During the intervening eight years, the Glorious Revolu- tion of 16 8 8 had occurred in England. Parliament was on the rise in terms of power and the royal prerogative was dimin- ished. Until the American Revolu- tion, this declaration remained the most impressive list of rights of the colonial period. Article I of the charter de- clared that true happiness would be unknown to mankind unless there was no abridgment of the freedom of conscience in matters of religion and worship.
A separate provision declared that any future attempts to alter the section on the liberty of religious conscience would be illegal. Such a provision would later be employed by Thomas Jefferson in an effort to check the power of future legislators to repeal laws which protected basic liberties.
A number of present-day state constitutions still have this type of principle in the declaration of rights, excepting the rights out of the powers of government in an effort to block future abridgment. Other provisions in this charter guaranteed due process of law and exempted the estates of persons committing suicide from seizure by the state. It was not until the colonists found themselves in a political crisis with England that attention was again focused on the rights of men. Subsequent to parliamentary enactment of the Revenue Act of 4 the colonists increasingly com- plained that they were being denied the rights of Englishmen by being taxed while having no representation.
Meeting in response to the passage of a second revenue-extrac- tion measure — the Stamp Act — the Stamp Act Congress of issued a set of grievances in which it asserted several liber- ties including the right of petition, trial by jury, and the "full and free enjoyment of their liberties. Com- plaints were lodged against the writs of assistance with which royal officers searched for contraband, against quartering troops and against violations of the right of trial by jury. The deep dissatisfaction of the colonies was not destined to continue as isolated pockets of resistance.
On the eve of the meeting of the 1st Continental Congress, Samuel Adams urged a national bill of rights as a step toward negotiation with Great Britain. The Congress passed a Declaration of Rights on October 14, The avowed validity of the resolution was based on "the immutable laws of nature, the principles of the English Constitution, and the several charters and compacts" of the colonies. This letter declared such principles as the rights of Englishmen, the rights of assembly and petition, the right to trial by one's peers, the right to participate in the legislative branch, habeas corpus and the freedom of the press.
In this early acknowledgment of the freedom of the press , the Congress wrote that the importance of a free press consists besides the advancement of truth, science, morality, and acts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs.
While the Continental Congress maintained an army, emitted bills of credit and generally preserved order, the colonies began to act increasingly in an independent way while debating the prospect of severing ties with Great Britain. Reflecting on the opposition to an effort to declare independ- ence from Britain, John Adams wrote that "all great changes are irksome to the human mind, especially those which are attended with great dangers and uncertain effects.
Three weeks later, the Virginia state convention, meeting in Williamsburg, drafted and passed a resolution asking Congress to declare the colonies free and independent states. At the same time, the convention passed a resolution calling for a committee to draft for Virginia a declaration of rights and a plan of government. Perhaps no single document has had a greater effect on the shape of American bills of rights than what became the Virginia Declaration of Rights.
George Mason had been active as a partisan of colonial rights for a number of years. He possessed uncommon enlightenment; for example, he had urged for a number of years the abolition of the slave trade as "wicked, cruel, and unnatural. Shortly after the Virginia convention adopted its bill of rights and constitution, the Continental Congress issued what "was almost immediately accepted as a national bill of rights. Although English con- stitutional history still provided valuable historical materi- al for the development of certain rights, the colonists hence- forth expressed their rights as the natural and inherent rights of all men.
Most of the political leaders did not want citizens' personal rights to be dependent upon the common law alone. Without even bother- ing to examine the common law to discover whether certain protections could be found there, the colonies wrote what they felt to be the essential safeguards into their fundamen- tal laws. Thus the process of distilling natural rights into civil rights and according civil rights constitutional sanc- tion was initiated.
Copies of the Virginia Declaration of Rights were circulated throughout the colonies and served as a model for at least seven colonies which, in some cases, adopted its articles verbatim. Although there is a paucity of historical evidence, the great- est concern with the principle of popular rights was probably displayed in the Pennsylvania convention. It was a scant two weeks after the Declaration of Independence was adopted that this convention met; in fact, when an urgent call to the con- vention from Congress for militiamen demanded some response, so many of the delegates were working on the declaration of rights that action had to be delayed until a quorum could be summoned.
Both were on the same ground in guaranteeing a speedy and public trial, freedom from general warrants, freedom of the press, the right to bear arms and civilian control of the military.
Privileges and Immunities Clause
In addition, the Pennsylvania declaration exempted from military service all conscientious dissenters and granted the freedom to travel from the state and form a new state. The Virginia declaration did not grant the former and it discouraged the latter. When the New Hampshire bill of rights and constitution, habit- ually rejected between and , finally was adopted, the state with the first independent temporary government closed the revolutionary period of bill of rights drafting. An interesting provision in this document--one which is sugges- tive of Article III, Section 24 of the Montana Constitution — provided that penalties should be "proportioned to the nature of the offence The true design of all punishment being to reform, not to exterminate, mankind.
The states, operating as fully sovereign entities, all had lists of rights which to the colonial mind harbored the essence of personal liberty. There was little concern that a national government--at that time still the Confederation-- would exercise any powers over the liberties of citizens. In fact, the Continental Congress had dealt with an issue of this sort when it was confronted with the problem of whether to arrest deserters from the Continental army.
Thomas Burke of North Carolina sounded a warning that for the Congress to do so would set a bad precedent: [I]t might render ineffectual all the barriers provided in the states for the security of the rights of citizens. Accordingly, there was no demand for a federal bill of rights between and It was only as a result of the popular alarm created by the concentration of power proposed in the U. Constitu- tion that agitation for what became the federal Bill of Rights was brought about.
One can understand the depth of such dissatisfaction without going into the body of criticism leveled at the Confederation. Let us have one by which our lives and liber- ties and properties will be secured; or let us know the worst at once. Typically, the concern expressed was that the government was unable to preserve order, protect property, or adequately defend itself against foreign powers. Significantly, in all the newspaper articles and volumes of private correspondence calling for changes in government, there appears no complaint about the infringement of personal rights.
Therefore the delegates who came to Philadelphia to write the blueprint for a stronger central government were not at the outset concerned with specific, written guarantees of civil liberties. Of the two who could be especially counted upon to champion personal liberties, one, Thomas Jefferson, was out of the country. Accord- ing to the Madison notes. Mason said such a list of rights "would give great quiet to the people; and with the aid of the State declarations, a bill might be prepared in a few hours.
Mason seconded the motion. Accord- ing to notes kept by James Madison, delegate Sherman then rose and announced that he too "was for securing the rights of the people where requisite. His principal objection — an objection which was to haunt the entire ratification process — was that there is no Declaration of Rights, and the laws of the general government being paramount to the laws and constitution of the several States, the Declara- tion of Rights in the separate States are no security.
Nor are the people secured even in the enjoyment of the benefit of the common law. On the final day of the Convention, Mason voiced his fear that the federal government being created could become oppressive. Gerry said he could get over his serious objections to the powers granted Congress; what he said he could not ignore was that the rights of citizens were rendered insecure by a judiciary without a jury--in his eyes, a Star Chamber.
However, as the Convention adjourned and the delegates headed home, the primary concern was to secure rati- fication of the new Constitution. From Paris, however, came a different response. Thomas Jefferson, who had viewed the operation from a distance, was concerned about the new structure of government. Jefferson took issue with the Federalist persuasion that viewed rights as be- yong the scope of the newly created government; such a notion left him uneasy. There was no assurance in the proposed Con- stitution that the states retained powers not delegated to the federal government.
Jefferson continued to write on the need for a bill of rights, urging that no more than nine states ratify the Constitution until a bill of rights could be appended. On this issue the Federalists and anti-Federalists clashed in every state ratification convention. Delaware ratified quickly and unan- imously. An effort to amend the document with fifteen prop- ositions was turned down in Pennsylvania, An identical vote ratified the document. By early January of , scarcely four months after the Convention had adjourned, five states had ratified.
Then the complexion of the ratifi- cation process changed. The Massachusetts convention stood on the verge of rejecting the document by a narrow margin. At this point in the ratification process, a twist of fate began to affect events which followed. The anti-Federalists, at the peak of their strength, found them- selves confronted with an uncooperative postal service. News of an event which occurred in Philadelphia on December 18 — the minority organization of a "rump convention" in Pennsyl- vania — had not reached Boston when the Massachusetts convention adjourned on February 9.
Difficult though it is to speculate seriously on these matters, it seems certain that such news would have added weight to the anti-Federalist effort to stop the Constitution at the Massachusetts ratification convention. Such a vote could only be secured by the convention's agreeing to send along with the ratified document recommended amendments. Among the nine articles adopted were: a reservation to the states of powers not delegated to the federal government, an injunction against Congressional regulation of elections, a prohibition against Congressional levying of direct taxes or creating monopolies and the necessity of the grand jury.
No provision was recommended on free speech, press or conscience. After the New Hampshire convention temporarily adjourned giving the Federalists time to regroup , the Maryland conven- tion convened and quickly ratified the Constitution. In the South Carolina legislature, a one-vote majority approved the call for a convention.
This convention also ratified by a healthy margin; in the process it also adopted several recom- mendatory amendments. With eight states having ratified, the whole scheme was not yet completed. It was not until the convention of New Hampshire ratified by a ten vote majority that the new document was assured a trial.
In addition to the Massachusetts personal liberties amendments, the New Hampshire convention recommended a three-fourths majority of Congress for the maintenance of a standing army, prohibitions on quar- tering of troops, the right of citizens to bear arms and an assurance that Congress would not abridge the free exercise of religious conscience. In general, the anti-Federalist misgivings as to the powers of the proposed federal government were sup- planted by what was, in reality, only one of their objections to the new scheme of government. During this time all but the most hardened Federalists had accepted the idea of a federal bill of rights.
It was the task of the 1st Congress to draft such a list of guarantees. Congress was to meet, James Madison wrote to Jefferson that he had "always been in favor of a bill of rights" even though many good men had felt a dec- laration of rights would be out of place in the Constitution. Madison's support was conditioned on the assumption that such a bill of rights be framed so "as not to imply powers not meant to be included in the enumeration" emphasis added. Although he did not share the extreme Federalist belief that the newly created government had no powers in the civil liberties area, he was afraid that some of the most essential rights could not be written down "in the requisite latitude.
First, he hoped it might create a national tradition to "counteract the impulses of interest and passion. He was well aware that when it was most needed a bill of rights was most often trans- gressed. He noted that legislative majorities in every state had violated what he called "parchment barriers" whenever it served their interest to do so. The chief danger to individual rights, as he saw it, was precisely when the government oper- ated as "the mere instrument of a major number of constituents. Believing that "the best security against these evils is to remove the pretext for them," he never intended to compile any complete list for attachment to the Constitution.
That is to say, the principal draftsman of what became the federal Bill of Rights never believed he was writing a complete list of safeguards. Although the anti-Federalists had some misgivings when faced with the prospect of a leading Federalist drafting the federal civil liberties protections, Madison borrowed heavily from the Virginia Declaration of Rights — which was drafted by the anti-Federalist George Mason.
After he had read his proposals he delivered a lengthy speech favoring a bill of rights in which he used many of the arguments Jefferson had sent him through the mails. After numerous delays and much publicity, seventeen amendments were sent from the House to the Senate. During the Senate debate — closed to the public--on the proposals, the amendment which Madison prized most was dropped. This was a provision which prohibited the states from infringing their citizens' per- sonal rights. However, after further wrangling, a conference committee sent twelve proposals to the states for ratification.
This congressional approval of civil liberties amendments brought about North Carolina's ratification of the Constitu- tion 56 On December 15, , the Virginia legislature — the first to provide legal safeguards for personal liberties — became the eleventh state to ratify the proposed amendments. Thomas Jefferson, as secretary of state, officially announced the ratification of the Bill of Rights. Doing so must have offered him some relief, for he had earlier argued that the spirit of the times may alter, will alter.
From the conclusion of this war [the Revolution] we shall be going down hill. The long history of pitched battles over civil liberties was begun. Perhaps no single attribute of American government has provided as much controversy-- from the Alien and Sedition Act of to the Chicago 8 trial of — as these guarantees of civil liberties. Demanded and -written by the rebels of that day they are still explored and invoked by revels of the present. This is not too surprising; as one commentator has written, "the job is never done.
Rather, an understanding of what they involved developed only slowly and piecemeal as the Americans gained experience with self-government. The following chapter discusses the possibility that, this occurrence notwithstanding, the states have a vital role in the area of the protection of civil liber- ties. In general, the wording of the present declara- tion of rights appears to have been derived almost verbatim from Article II of the Colorado Constitution.
Having said this, it should be noted that three instances in which the Montana Constitutional Convention departed from the Colorado examples do appear to be significant. This report does not deal with the notion of positive liberty. Some mention of that concept will be made in a subsequent report on the First Amendment Freedoms. That report will discuss the distinctions between "negative protection" and "positive liberty" and, in somewhat more detail, the distinction between the type of freedom incorporated in the First Amendment and the liberty of, say, the Fifth Amendment.
Cited hereafter as Custard, Bills of Rights. See e. Custard, Bills of Rights , p. It is more likely that it was Hippias who did so in the Platonic dialogue Protagoras. Protagoras himself did not accept the "Sovereignty of Naturrecht" natural right. Aristotle, Rhetoric , I, 15, a, A 27f.
Cited from Edward S. Cited hereafter as Corwin, Liberty. Holland, Elements of Jurisprudence 12th ed. Cited from Corwin, Liberty , p. Lactantius , Div. Roberts and Donaldson tr. To be sure, there is an important distinction to be made between Plato's law and the contemporary statute. The ethical preambles to the Platonic statutes were much longer than the statutes themselves. This was Plato's effort to keep statutes from becoming bare imperatives, each with its own penal sanction. See A.
Taylor, introduction to The Laws London: J. Dent and Sons Ltd. First Charter of Virginia, April 10, Cited from Richard L. Cited hereafter as Perry, Our Liberties. Cited hereafter as Rutland, Bill of Rights. Perry, Our Liberties , p. Gordon S. Cited hereafter as Wood, The American Republic. Rutland, Bill of Rights , p.
Ford, ed. Journal of Continental Congress , I, Cited from Ibid.
John Adams to James Warren, April 22, See Appendix C. Rutland, Bill of Rights , pp. See Chapter VI on rights of the incarcerated. Burnett, ed. Wood, The American Republic , p. George Washington to Henry Lee, October 31, Cited from Rutland, Bill of Rights , p.
Jefferson had taken a ministerial post in France. His letters , to a convention whose secret sessions he could not read about in the papers , contain his thoughts on a proper constitutional framework. Max Farrand, ed. Cited hereafter as Farrand, Records. Rutland has written that "of course, there was nothing unusual in the fact that the personal rights of citizens were not a topic of discussion in the preliminary debates. Under the Confederation, these rights have been under State protection. There was no reason to assume that this protection had been lifted as long as the nature of the new government was unknown.
Farrand, Records , Thomas Jefferson to James Madison, December 20, An indication of the ambiguous nature of the libertarian commitment of the Massachusetts anti-Federalists can be seen in the fact that they opposed the Constitution's ban on religious tests for public office. Their opposition to this ban was especially strong in the Massachusetts ratification convention.
Precisely at the time they were arguing for a federal Bill of Rights they were opposing one of the explicit liberties already in the proposed Constitution. James Madison to Thomas Jefferson, October 17, Such a statement is suggestive of a similar distinction that was being made on the other side of the Atlantic. Immanuel Kant, Konigsberg philosopher, understood well the difference between social conventions mores on the one hand and morality on the other hand. The implication of Madison's utterance is that the danger to civil liberties is not a product of the mere existence of government; rather it is most likely that civil liber- ties will be violated when a government acts claiming that a majority — silent or vocal — adheres to its pol- icies.
This distinction--which is at least as old as Socrates — has particular relevance in the area of First Amendment Freedoms. Madison's understanding of the form of the federal Bill of Rights is crucial when, for example, one confronts the argiament that the contemporary states should adopt the federal bill in toto as their own.
To do so would amount to accepting what was, by its authors own admis- sion, a whittled down version of the then-existing state NOTES bills of rights. To be sure, the First Amendment is an example of an addition that was made to the typical state provisions. This point is also discussed in Chapter III. Two amendments--one calling for a fixed ratio of House of Representatives seats and one prohibiting Congressmen from altering their salaries until an election had inter- vened — were not ratified. Massachusetts, curiously enough one of the first states to demand a federal bill of rights, did not get around to ratifying the first ten amendments until 19 One should not assume from this that Jefferson was a pristine liberatarian.
As a noted constitutional his- torian has written, "historians and biographers have fixed a libertarian halo around the brows of Thomas Jefferson as if he were a plaster saint, a seraph, or a demigod I find a strong pattern of unlibertarian , even antilibertarian thought and behavior extending throughout Jefferson's long career.
Cited hereafter as Levy, The Darker Side. Jethro K. There is some question as to the necessity of a state having a declaration of rights at all. This is true despite the fact that one commentator, noting the heritage of bills of rights in American history, has said "undoubtedly, it is un-American even to raise the question of whether a contemporary state constitution ought to contain a bill of rights.
Arguably, an example of this can be found in the famous series of essays in which three Founding Fathers attempted to secure ratification of the United States Constitu- tion in New York. In these essays The Federalist Papers , Alexander Hamilton took the anti-Federalists , who were alarmed over the lack of a declaration of rights in the proposed U. Constitution, to task. He argued that a bill of rights in the proposed constitution would be not only unnecessary but dangerous. Hamilton was worried that excepting certain acts out of powers of government that were not even granted would "afford a colorable pretext to claim more than were granted.
In addition, it seems quite clear that without the then-existing state declarations of rights the Federalists would not have been so averse to attaching a bill of rights to their Constitution. In any case, "the public mind found this [the Federalists] reasoning specious" and felt that even those safeguards that were written into the Constitution were inadequate.
It would, however, amount to a strange historical reversal to argue that the federal government, which was not originally envisioned as having powers in the area of civil liberties, and its activity in the civil liberties field should suddenly become the reason for excluding declarations of rights from state constitutions. No state constitution-makers have accepted the logic of a principle of popular sovereignty replacing written guaran- tees of civil liberties. Thus, the Federalists were found arguing in ratifying conventions that the clamor for a federal bill of rights was a smokescreen, an unnecessary restraint on a power that did not exist and an unnecessary encumbrance in the fundamental law.
In the words of Alexander Hamilton, opening the Federalist Papers , "an over-scrupulous jealousy of danger to the rights of the people. No such consensus exists today. More and more, since the mid- s the federal government has come to press states, which have become a brake rather than an accelerator in the area of civil liberties. For example, David Fox, writing a preparatory report for the recent New York Con- stitutional Convention, noted that the primary impetus for the badly needed revision of the New York bill of rights was that: [M]any of the provisions of the Federal Bill of Rights are now applicable to state action, and the decisions applying these provisions to the states have generally required greater protection of civil liberties than was required under New York decisional law interpreting the comparable New York provision.
The central vehicle of this federal compulsion is the Fourteenth Amendment to the United States Constitution. Section 1 of this amend- ment reads as follows : All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and 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 [emphasis added].
The result, then, of such a federal ascendancy in the area of civil liberties would be "to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore conceded to them. Therefore, the security and protection of such a privilege was a matter of state concern and not under the care of the federal government. In these cases the Court majority did list some privileges and immunities which were enforceable by the federal government. SO on. The only personal liberties held to be protected in- cluded the right of access to the courts in the several states, the right of assembly and the principal procedural remedy, the writ of habeas corpus.
Currently the privileges and immunities clause still operates to extend federal protections against state encroachments of civil liberties. However, it is another clause of the Four- teenth Amendment--the due process clause — that operates to the greatest degree to extend federal civil liberties protec- tions. This was not the case immediately after its adoption, however.
The Fourteenth Amendment due process clause, it should be noted, is a duplication of a similar clause in the Fifth Amendment which operates as a procedural and substantive check on the federal government. The Fourteenth Amendment pro- vision is as indicated by the above wording of Section 1 directed explicitly to state behavior.