Recall that Barron rested on the view -- in my view, a correct reading of the original meaning of the Bill of Rights -- that none of the rights in the federal Bill of Rights applied to the states. This is quite consistent with the notion that some of the rights are natural rights; it just means that when a state, for instance, took property without compensation, it would be violating natural rights -- which the federal constitution doesn't generally protect against state governments -- and not violating the federal constitution.
> -----Original Message----- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of > [EMAIL PROTECTED] > Sent: Wednesday, July 25, 2007 1:22 PM > To: List Firearms Reg > Subject: RE: The REPUBLICAN ... from New York. > > -----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. > _______________________________________________ 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.
