I wanted to take a day or two to ponder this. I fear I must disagree. I believe we can stipulate the following:
1) The 2nd Amendment was derived from state RKBA constitution clauses, and distilled in convention, and thus reflected the general will of The People. 2) The nation had recently ratified the Constitution itself, with a great deal of public debate. 3) Much of that debate revolved around Article VI and the supremacy clause and how "Judges in every State" were bound to the new constitution. After all, The People were ceding the powers of their states to the new government, and this was not taken lightly. Thus, it would be a stretch for me to believe that - having just analyzed and voted in approval of the federal constitution forcing subjugation of certain state powers to federal law - that any part of the Bill of Right would not have been viewed and both a federal and state restriction of power. The People were recently, fully, and acutely aware of the implications of Article VI, and knew that the Bill of Rights added a layer of protection to their assumed natural rights. Guy Smith Author, Gun Facts [EMAIL PROTECTED] www.GunFacts.info <http://www.gunfacts.info/> _____ From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Wednesday, July 25, 2007 1:40 PM To: List Firearms Reg Subject: RE: The REPUBLICAN ... from New York. 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
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