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. Some of the early commentators also support this view, I believe. In fact, outside Barron and its progeny, this may have been the dominant view but I haven't read enough of those cases to say for sure.
>>> "Volokh, Eugene" <[EMAIL PROTECTED]> 07/25/07 2:11 PM >>> Joe: I'm puzzled -- isn't it clear that before the Fourteenth Amendment, the dominant view (not the only view, but the dominant one, eventually adopted in Barron v. Baltimore) was that gun control was indeed a matter for state-by-state decisionmaking (at least setting aside conflicts with federal law), and that the Second Amendment, like other amendments, bound only the federal government? One can fault Giuliani for not being attentive to how the Fourteenth Amendment was interpreted, and what its Ratifiers would have said, but it sounds to me like he's quite right as to the Founding Fathers. Eugene
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