How could it possibly "be a stretch ... to believe that ... any part
of the Bill of Right[s] would not have been viewed [as] both a federal
and state restriction of power"? The First Amendment *expressly* says
that it's a limit only on the power of Congress. There is no question
about that.
The only question is whether somehow -- (1) after having rejected
Madison's attempt to implement a limited set of constraints on the
states, (2) having mostly accepted Madison's proposals for limiting the
federal government, and (3) having been prodded into changing the
Constitution by anti-Federalists who were worried that the *federal
government* would be oppressive -- the Framers decided, with no debate
and no explanation, to enact a *federal* prohibition constraining the
states as well as the federal government. Seems to me the answer is
pretty clearly no.
Eugene
________________________________
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Guy Smith
Sent: Saturday, July 28, 2007 9:21 AM
To: 'List Firearms Reg'
Subject: RE: The REPUBLICAN ... from New York.
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
_______________________________________________
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.
