By the way, here's one reason that Barron strikes me as an entirely
correct given the original understanding:
Madison originally proposed the Bill of Rights as amendments to the
body of the Constitution. The bulk of the amendments that now form the
Bill of Rights would have gone into article I, section 9, which lists
constraints on the federal government; but the provision "No state shall
violate the equal rights of conscience, or the freedom of the press, or
the trial by jury in criminal cases" would have gone into article I,
section 10, which lists constraints on state governments. See
http://www.let.rug.nl/~usa/P/jm4/speeches/amend.htm .
The former provisions were mostly accepted; the latter were
rejected. Concluding that amendments 2 through 8 were nonetheless
understood by people in 1791 as applying to the states would require us
to think that (1) the Congress's revisions to Madison's proposals were
understood as vastly *broadening* the scope of most of Madison's
proposals (by making most of the federal constitution's new prohibitions
applicable to the states as well as the federal government), and (2) the
Congress's revisions to Madison's proposals were understood as vastly
*narrowing* the scope of some of Madison's other proposals (by making
the federal constitution's new prohibitions on free speech or religious
prosecution applicable only to the federal government, not the states).
That would be an utterly remarkable result, and yet none of the
Congressional debates or any other contemporaneous sources remarked on
it. Rather, those sources seem to me most consistent with the view that
Madison's proposals were largely accepted (with some changes) as to
federal limits on federal action, and entirely rejected as to federal
limits on state action.
Eugene
________________________________
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Joseph E.
Olson
Sent: Wednesday, July 25, 2007 12:59 PM
To: List Firearms Reg
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.
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
_______________________________________________
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.
