       Hurtado v. California, 110 U.S. 516 (1884)

              Commentary by Jon Roland

This is one of the more damaging decisions of the Supreme Court, setting a 
terrible precedent. The issues were set forth well by Justice Harlan, whose 
dissenting opinion is correct. Unfortunately, the majority did not agree 
with him.

What all of them seem to have missed, including the litigants, is that the 
issue not just whether grand jury indictment is part of "due process", 
guaranteed by the Fifth and Fourteenth Amendments. The Fourteenth also 
provides:

     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; 

This language was made the opening statements in the Fourteenth for a 
reason. They were not without force and effect. They were intended by the 
framers of the Fourteenth to extend the jurisdiction and protection of 
federal courts to all rights recognized by the Constitution and Bill of 
Rights against actions by state government.

First, "any law" includes the state constitution, which is its supreme law, 
subject to the U.S. Constitution.

Second, "immunities" includes all those rights recognized and protected by 
the Constitution and Bill of Rights, including those of the Ninth and Tenth 
Amendments. The framers of the Fourteenth used "immunities" because the 
rights recognized and protected by the Constitution and Bill of Rights are 
rights against action by government, which are "immunities", as distinct 
from nonvested rights of business.

If there is any doubt as to what the framers of the Fouteenth meant by their 
words, here are some more of their words, taken from debates in Congress and 
the press during the drafting and ratification debates on the amendment. See 
"Intent of the Fourteenth Amendment was to Protect All Rights", by Jon 
Roland.

From the legislative history of the Fourteenth it should be clear that all 
of the rights recognized by the U.S. Constitution are not only rights 
against state action, but that the Fourteenth Amendment authorizes Congress 
to legislate protection of such rights against state action, and grants 
jurisdiction of the federal judiciary over cases between citizens and their 
states involving them. Among those rights are the right to keep and bear 
arms and the right to a grand jury indictment. While the Supreme Court might 
reasonably have confirmed this in any given case by only declaring such 
rights as are minimally needed to render a decision, it is important that 
they not fail to do so for all the rights that are issues before the court, 
and the precedent of the Hurtado case needs to be reversed.




