Thank you for your patience with this discussion.
Let’s consider Thomas Jefferson’s explanation that express constitutional prohibitions of power to Congress, the powers prohibited to Congress by the 1st Amendment (1A) a famous example, do not also apply to the states.
Note that Jefferson’s explanation borrows language from the 10th Amendment (10A).
"10th Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
”3. Resolved that it is true as a general principle and is also expressly declared by one of the amendments to the constitution that -the powers not delegated to the US. by the constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people-: and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the US. by the constitution, nor prohibited by it to the states, all lawful powers respecting the same did of right remain, & were reserved, to the states or the people: that thus was manifested their determination to retain to themselves [each state] the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated rather than the use be destroyed [emphasis added]; . . . “ - Thomas Jefferson, Kentucky Resolutions, 1798.
In order for a power to be constitutionally prohibited to the states, 10A clarifies that the states must expressly constitutionally prohibit the power to themselves. This is evidenced by the clauses of the Constitution’s Article I, Section 10 for instance. Here’s clause 1 of that section as an example.
"Article I, Section. 10, Clause 1: No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility."
Whereas the states did not originally prohibit themselves from regulating our BoR rights like they did with Congress, although Congress can now strengthen our BoR rights from abridgment by the states through the 14th Amendment (14A).
In other words, 14A does not prohibit the states from having those powers like 1A expressly prohibits Congress.
In fact, the congressional record shows that Rep. John Bingham, the main author of 14A, had clarified that 14A takes away no state powers.
"The adoption of the proposed amendment will take from the States no rights [emphasis added] that belong to the States." - John Bingham, Appendix to the Congressional Globe. (See bottom half of first column)
"No right [emphasis added] reserved by the Constitution to the States should be impaired . . ." —John Bingham, Appendix to the Congressional Globe. (See top half of 1st column)
"Do gentlemen say that by so legislating we would strike down the rights of the State? God forbid. [emphasis added] I believe our dual system of government essential to our national existence." - John Bingham, Appendix to the Congressional Globe. (See bottom half of third column)
Again, the states still have the power to reasonably regulate BoR protections as Jefferson had explained. But but Congress now has 14A power make laws to discourage the states from abridging those protections.
Insights welcome.
Alright, you got me on the First Amendment: the low hanging fruit. “Congress shall make no law...” That was a loophole for the states in the Bill of Rights (the first ten amendments, nine of which confirmed individual rights). But it was important to the states at the time, to protect the rights in the First Amendment. No need to go into matters of indecency, assumed at the time to be unreasonable abuses of freedom of speech and potential violations of the rights of others (see early female Quaker violations in communities away from their own, punishments, etc.).
But not on the Second Amendment. It was an individual right that was not limited to a prohibition against federal congressional laws.
By the way, the reason Madison opposed including a bill of rights, is that He did not believe that the Convention of 1787 would include enough specific language to protect civil rights that were well protected by the states at the time.
That’s also why Madison proposed the following as a first amendment along with 19 other drafted amendments.
“The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed. The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable. The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances.”
But Congress condensed that language, which generalization and inclusion of the word, Congress, allowed for some of the more recent problems.
The framers of our Constitution could not have foreseen the extents of legal and moral corruption seen in the legislatures and executive offices of our states today. If they could have seen the corruption today in all levels of government, they would have written a much more extensive and specific bill of rights.