[Cite as Maxwell v. Dow, 176 U.S. 581 (1899). NOTE: This decision concerns whether the Fifth Amendment right to grand jury clause and Sixth Amendment right to trial by jury were "privileges and immunities" of the Fourteenth Amendment and made enforceable against State action. Commenting on different Supreme Court opinions which held various individual rights to be unenforceable against state infringement, the majority opinion cites Pressor "that the Second Amendment to the Constitution, in regard to the right of the people to bear arms, is a limitation only on the power of Congress and the National Government, and not of the States. It was therein said, however, that as all citizens capable of bearing arms constitute the reserved military force of the National Government, the States could not prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the General Government." (P. 597 this page) Justice Harlan argued in his dissenting opinion that the Constitution was opposed because "it did not contain a Bill of Rights guarding the fundamental guarantees of life, liberty and property against the unwarranted exercise of power by the National Government." To counter this opposition, amendments were promised "to guard against the infringement ... of the essential rights of American freemen.... These amendments have ever since been regarded as the National Bill of Rights." Harlan enumerates "some of those amendments" but does not mention the Second or Seventh Amendments. (P. 607. Compare Justice Harlan's dissent in Poe v. Ullman, 367 U.S. 497, 542-543 (1961) (list of individual rights includes the right to arms and similarly omits others.)) See also P. 615 where Justice Harlan writes, "To say of any people that they do not enjoy those [first ten amendments] is to say they do not enjoy real freedom."]
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[paragraph continued from previous page] does not preclude the States by their constitutions and laws from altering the rule as to indictment by a grand jury, or as to the number of jurors necessary to compose a petit jury in a criminal case not capital.
The same reasoning is applicable to the case of Kennard v. Louisiana, 92 U.S. 480, although that case was decided with special reference to the "due process of law" clause.
In Kemmler's case, 136 U.S. 436, it was stated that it was not contended and could not be that the Eighth Amendment to the Federal Constitution was intended to apply to the States. This was said long after the adoption of the Fourteenth Amendment, and also subsequent to the making of the claim that by its adoption the limitations of the preceding amendments had been altered and enlarged so as in effect to make them applicable to proceedings in the state courts.
In Presser v. Illinois, 116 U.S. 252, it was held that the Second Amendment to the Constitution, in regard to the right of the people to bear arms, is a limitation only on the power of Congress and the National Government, and not of the States. It was therein said, however, that as all citizens capable of bearing arms constitute the reserved military force of the National Government, the States could not prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the General Government.
In O'Neil v. Vermont, 144 U.S. 323, 332, it was stated that as a general question it has always been ruled that the Eighth Amendment to the Constitution of the United States does not apply to the States.
In Thorington v. Montgomery, 147 U.S. 490, it was said that the Fifth Amendment to the Constitution operates exclusively in restraint of Federal power, and has no application to the States.
We have cited these cases for the purpose of showing that the privileges and immunities of citizens of the United States do not necessarily include all the rights protected by the first eight amendments to the Federal Constitution against the [paragraph continues next page]
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