Ron White here (figuratively speaking). I think the crux of the disagreement on this thread has already been exposed, and it can pretty much allow each side to consider themselves right without having to disprove the other side's arguments.
This is it, as I see it: It's perfectly reasonable to assume (as many state supreme courts have) that by ratifying the Bill of Rights the states were agreeing to abide by them, but were not granting the fed any additional powers to enforce them. Thus, from very early on, federal courts would not try to enforce the Bill of Rights against the states (Gene's position), but the states should (and many did) consider themselves bound by the Bill of Rights (Joe's and Guy's positions). Jon's position is interesting to me because it stands the "collective right" position completely on its head. Brady et al. claim that the 2nd Amendment is about protecting state militia against being disarmed by the fed, and Jon seems to be arguing that the 2nd Amendment is about protecting federal militia against being disarmed by the states. Did I get that right, Jon? I personally prefer Gene's position on this question: that the militia is largely irrelevant to the scope of the right protected by the 2nd Amendment, even though it is explicitly mentioned in the text, because it's only there as a not-uncommon "justification clause" putting forward one reason why the right is important. I'd like to hear Dave Hardy's take on Jon's position on the 2nd Amendment and the militia. Peter _____ From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Guy Smith Sent: Sunday, July 29, 2007 11:00 AM To: 'List Firearms Reg' Subject: RE: The REPUBLICAN ... from New York. I should never disagree with our host. Eugene is both smarter and vastly more educated than I, and I enter into his realm of expertise. It would be foolish to debate ... which has never stopped me before (Comedian Ron White once said "I had the right to remain silent, I just didn't have the ability." I fear I suffer from the same disorder). The express federal restriction in the 1st Amendment seems odd given the lack of such compartmentalization in the following seven. If expressly stated federal restrictions are taken as such, then the founding fathers intended the states to have the power to establish religion, restrict the press, suppress free speech, and deny peaceful assembly. Likewise the lack of specific federal/state restriction in Amendments two through eight would then mean that those amendments applied to all levels of government. The anti-Federalist desire to restrict federal powers is clear. But since these restriction echoed restrictions already in place against state powers, and thus redundantly restricted the states via Article VI, then I doubt the sates would have objected, and debate/explanation would have been moot -- the absence of debate is more supportive of universal restraint than a mere federal restriction. Likewise is the case of Madison's jettisoned list of state restrictions. If viewed as natural rights and universal restrictions on government power, then two sets of constraints (one federal and one state) would be superfluous, leading toward the more compact and ubiquitous set of amendments that were created. Madison was if anything succinct. The disturbing bit that remains is why he specified a restriction on Congress in the 1st Amendment and not the others. _____ From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Saturday, July 28, 2007 10:18 PM To: Guy Smith; List Firearms Reg Subject: RE: The REPUBLICAN ... from New York. 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
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