-----Original Message----- >From: "Joseph E. Olson" <[EMAIL PROTECTED]> >Sent: Jul 25, 2007 3:58 PM >To: List Firearms Reg <[email protected]> >Subject: RE: The REPUBLICAN ... from New York. > >I don't think it is clear. > >It depends on your view of the correctness of a broad reading of Barron beyond >its facts. Many (most?) nineteenth century state Supreme Court justices >thought the Second Amendment, at least, did apply to the states. I'm not >aware of any cases [prior to] Barron that say otherwise. Perhaps on the basis >of a distinction between "shall not be infringed" vs. "Congress shall make no" >although the state cases don't, IIRC, articulate a rationale, they just say >it.
It's explicable if you figure that they were "natural rights" thinkers rather than positivists. The recognition (not creation) of a right to arms in a federal constitution could be used at least as strong evidence that such a right existed as a nonenumerated right vis-a-vis state governments. Thus Rawle, as I recollect, said that if states attempted to disarm their people the second amendment could be appealed to. As I recall, in his speech introducing the Bill of Rights, one of Madison's arguments was that State BoRs weren't sufficient -- presumably undertaking to rebut the converse argument, that you could use state guarantees as proof of federal rights. _______________________________________________ To post, send message to [email protected] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
