I know, I mentioned in my original post that the site was gone again.
Part 8: Barron v. Baltimore 1 of 2.
Applicability:
Therefore, before looking at the Fourteenth Amendment, we study the purposes behind that great Law.
Facts behind Barron v. Baltimore
Before the year 1822, Mr Barron owned interest in a productive deep-water wharf in Baltimore. The City of Baltimore re-directed streams and runoff which resulted in sand and silt filling Barron's wharf-front until it rendered the wharf useless. Mr. Barron sued the Mayor and City of Baltimore for taking the wharf's value, and won $4,500 damages. Baltimore appealed, and Maryland's high Court reversed the judgement. Mr. Barron appealed this reversal to the Supreme Court. Eleven years later, the Supreme Court decided to hear the matter.
The Supreme Court Judgement Barron v. Baltimore held (inter alia):The Judgement v. The Facts
- The provision in the Fifth Amendment to the Constitution of the United States declaring that private property shall not be taken for public use without just compensation is intended soley as a limitation on the exercise of power by the Government of the United States, and is not applicable to the legislation of the States.
- The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of individual States.
- Had the framers of these amendments intended them to be limitations on the powers of the State governments, they would have imitated the framers of the original Constitution, and have expressed that intention.
- In almost every convention by which the Constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the General Government -- not against those of the local governments.
- In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in Congress and adopted by the States. These amendments contain no expression indicating an intention to apply them to the State governments.
- This court cannot so apply them.
Rebuttal: The most effective way to lie is to tell the part of the truth that, if taken as the whole truth, will mislead those who trusted your words. The above holdings are lies of that type.
The Supremacy Clause of the Constitution makes it plain that Rights belonging to the People as declared in the Constitution of the United States (or Bill of Rights) were Rights belonging to the People so far as the States, their Constitutions (if any) and their Bills of Rights (again, if any) were concerned as well, and were Rights belonging to the People even in States without Constitutions or Bills of Rights, even if those States should have articles of law, constitution, or declarations of rights to the contrary. Dred Scott v. Sandford (vide infra) held this point. To hold otherwise is nonsensical. Anything in the Constitution supercedes anything contrary in any Constitution or law of any State. To what could this apply more than the declaration of a Right? Or, what Right do we believe to be ours, that the Federal government shall not touch, but if our State destroy the right with felony statutes and capital punishments, that's fine with us? This is the absurdity of Barron v. Baltimore. How can, then, the Constitution declare a Right as belonging to the people, and a state presume that such is not a right belonging to the people in that State? This is the substance of the Doctrine of Nullification. It is also the substance of Barron v Baltimore. To claim it is the real substance of the Bill of Rights is historically counterfactual.
The ratification debates made this obvious. Freedom of Religion aroused heated and passionate debates as to the wisdom of declaring and protecting such a freedom as a right. Why would such be a concern, if the Bill of Rights had no effect in the States? Let the Federal Government be religion-neutral, and Pennsylvania will be free to require that Catholics pay special taxes. But, the understanding of the delegates was otherwise: They held the Bill of Rights as declaring RIGHTS, not artificial, arbitrary, for-the-heck-of-it limitations on the Federal authority only.
This showed up quite plainly in the Dred Scott vs Sandford decision 25 years later (vide infra). Making Citizens of Negros at the Federal level, whilst holding them slave (or sub-citizen) at the State level (the central point acted on in Scott), and it's parallel in this case: Making handgun ownership (or any right) a right at the Federal level, but a $1000 fine, 1-year-in-jail, and lifetime disarmament penalty misdemeanor (or any other penalty) at the State level, is illogic of a dangerous degree. We shall study the Scott decision next.
To be sure, Federal law does not supercede State constitutions or laws where the Congress had no authority to write the law in question, but the Constitution of the United States cannot, by definition, have such a limit. This is the obvious fact denied by the Supreme Court in Barron v Baltimore, and this denial is the sole foundation stone of that judgement's precedent. This denial is the foundation stone of denial of the Right to Arms in the States. Whether Barron v. Baltimore is cited explicitly or not, the flawed logic thereof is. Law based upon that flawed judgement is unconstitutional.
"As a corporation, they are made liable to be sued, and authorized to sue, to acquire and hold and dispose of property and, within the scope of the powers conferred by the charter, are allowed to pass ordinance and legislative acts, which it is declared by the charter shall have the same effect as acts of assembly, and be operative, provided they be not repugnant to the laws of the state, or the constitution of the state, or of the United States."
Laying aside the obvious, that the Bill of Rights applies everywhere, the Baltimore charter, even without this "Non-repugnance" clause, cannot grant to the city power to write laws repugnant to the Constitutions or laws of Maryland, nor of the United States, any more than a State Constitution can give it's legislature power to defy the federal government in it's proper sphere of action. Therefore, if this non-repugnance clause is to have any effect, it must impose a restriction beyond the absolute minimum limits inherited from the Supremacy Clause of the Constitution of the United States, and the equivalent limitation that a corporation within a state cannot defy the state. What broader restriction could exist? That the Bill of Rights of the federal Constitution (or rather, the Rights declared therein) imposes a limit on the power of Baltimore. Thus: If it be held that the Bill of Rights was not obligatory upon the States by virtue of the points above, it was obligatory by the construction of the Charter of Baltimore, unless we imagine this Charter to have contained meaningless language. The Supreme Court therefore averred that the Bill of Rights was not only not compulsory upon the states or their cities, but also apparently denied that the Constitution of the United States, nor the Bill of Rights, could be adopted by the states (or by cties therein) as applying to them voluntarily such that offences against the Bill of Rights could be redressed in Courts thereof. -->
The defect of the Court's reasoning relative to the facts is: One, treating the Constitution, and the Bill of Rights in particular, as if it were properly construed mere business contract between the States, in which neither the people, nor the United States, have interests that bound the States; and Two, denying obvious things merely because they were not explicitly listed. The language of the Court here reduces rights from Constitutional Writ and Supreme Law to mere moral polemic to be heeded by whoever pleases to heed and discarded by whoever pleases to discard. ...and become a mere collection of political maxims to be adhered to or disregarded according to the prevailing sentiment ... (Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398 (1934)) Cherokee Nation v. Georgia)--> Barron v. Baltimore)--> Brunner v. New York-->
The Judgement vs The Consequences
Was this the Cause of our rebellion: to replace one wicked King with Thirteen? Would not states without Bills of Rights (or without constitutions) then be free in carrying out whatever deprivations and invasions of rights the people thereof would endure, and the people of such States would have no redress but futile rebellion? States could disarm the people, or some of them, search homes and persons without cause or warrant, compel persons to witness against themselves in Court, deny counsel or juries, or impose impossible fines and torture, and in short act like England's worst Kings, and the Bill of Rights was no protection. At least the Supreme Court said so...
And if the States have and ignore Bills of Rights of their own, who shall enforce them against the States? The Court, in Barron v. Baltimore showed itself unwilling to uphold the common law rights, which was all the Bills of Rights of the several States, or the United States, protected; why should the Court be expected to respect the bark of a written State Bill of Rights, seeing they already slew the dog of common law rights? Again, this is strong evidence that the Court's view was in error.
The Judgement vs The Historical Context of the Bill of Rights
When a body of free people determine to establish a government over themselves, they each surrender a portion of their individual natural sovereignty to this State which they create. For that State to act against the remaining liberties or rights of the people is masochism, for the State has no existance but as an embodiment of the people, and no powers but from the "Consent of the Governed". The common law rights, however spelled and defined, are those remaining, or residual, liberties and rights which the State shall not invade, for it was created without license to do the people harm. It is not bad poetry to refer to this limit, as the State having a Conscience towards it's people. When the States, acting each as if a person, surrendered part of their individuality and individual sovereignty, wherewith to create a new State, to wit the United States, the Federalists cried "Behold Saint Superman", and the anti-Federalists cried "Behold Frankenstein". "St Frankenstein" is closer to the mark. The cry for a Bill of Rights was a cry to assure that St Frankenstein possessed the same conscience towards the people as did the several States. Therefore, not only did the Bill of Rights apply to the States, it was impossible that it not apply.
This assertion, that the common law rights declared in the Bill of Rights were sure limitations on the local government, because the Bill of Rights was established as limitations on Government, Period, is no strange doctrine. Numerous examples exist where state Courts took guidance from the federal Bill of Rights, or even considered it binding upon them:
The Georgia State Supreme Court held that the Bill of Rights protected natural rights which were fully as capable of infringement by states as by the federal government, and that the Second Amendment provided "the right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not merely such as are used by the militia, shall not be infringed, curtailed, or broken in on, in the slightest degree; and all this for the important end to be attained: the rearing up and qualifying of a well regulated militia, so vitally necessary to the security of a free state."
Note, Georgia did not have a Bill of Rights at this time, nor a Right of Arms provision in it's Constitution, so the reference to the federal Bill of Rights was not mere courtesy: The judges of Georgia's Supreme Court believed that they, like the rest of the Nation, were bound by the federal Bill of Rights.
The Court recognized the right to keep and to bear arms, saying "This is the right guaranteed by the Constitution of the United States".
Again the Court held that the Second Amendment overruled State law to the contrary, albeit inventing an amendment to the amendment that "the right of the to keep and bear arms openly shall not be infringed."
Again, the State Supreme Court held that the Second Amendment to the Federal Constitution must be obeyed by the State, and repeated the amendment to that amendment that "the right of the people to keep and bear arms openly shall not be infringed."
Texas' Supreme Court cited the U.S. Constitution, Second Amendment, and the Texas Constitution Bill of Rights Art 13, stating "It is contended, that this article of the Code [bowie knife use in a manslaughter circumstance would be considered murder and punished accordingly] is in violation of the Constitution of the United States, and of this State." The Court then propounded the purposes of both Constitutional provisions, indicating that both applied to the State. Then wrote the Court "The Object of the first clause cited, has reference to the perpetuation of free government, and is based on the idea, that the people cannot be effectually oppressed and enslaved, who are not first disarmed. The clause cited in our Bill of Rights, has the same broad object in relation to the government, and in addition thereto, secures a personal right to the citizen. The right of a citizen to bear arms, in the lawful defence of himself or the State, is absolute. He does not derive it from the State government, but directly from the sovereign convention of the people that framed the State government. It is one of the 'high powers' delegated directly to the citizen and 'is excepted out of the general powers of government.' A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the law-making power."
Here, on the eve of the Civil War, or on it's first dawn's light, the Bill of Rights of the United States again received honor by the Supreme Court of Georgia. The Concealed Carry prohibition received this demise: "it is impossible for one to have and bear about his person a pistol or weapon of any kind, without having some part of the weapon concealed from view," and "to enforce the law, as the Court construed it to the jury, would be to prohibit the bearing of these arms altogether, and to bring the act within the decision in Nunn's case." Nunn's case (supra) hinged upon the federal Bill of Rights, which the Georgia High Court took to be binding upon the State.
And those are just weapons law cases, and just those that could easily be found in Clayton Cramers' In The Defense of Themselves and the State. There are, doubtless, other such decisions, weapons law and otherwise, which are yet to be brought to light.
Defendants consider it noteworthy, One, that in State v. Newsom 5 Iredell 181, 27 N.C. 250, 250-253 (1844), the Court cited Barron v. Baltimore as annulling a Second Amendment claim against a weapon law in a State Court; and Two, the defendant was a Negro. Barron has never been cited by a Court in the interests of upholding rights, but only in pursuit of pretext for denial of rights. We should guess, if the Bill of Rights is inapplicable to the States, so are the judgements of the Supreme Court?-->
The Judgement vs Stare Decisis
Constitutional Authorities, widely recognized and respected as expert on the Constitution, echo the above obvious point: The Bill of Rights affects and binds the States by virtue of the Rights declared therein. In the matter at bar, whether the Second Amendment binds the states, the applicable stare decisis is the intentions in the minds of the authors of the Constitution, the Bill of Rights, and, (since 1867), the authors of the Fourteenth Amendment.
In the second article, it is declared, that a well regulated militia is necessary to the security of a free state, a proposition from which few will dissent.
The corollary, from the first position, is that the right of the people to keep and bear arms shall not be infringed.
The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both...A View of the Constitution, 1829; 125-6, emphasis added.
[With respect to] the principal absolute rights of individuals.
To secure their enjoyment, however, certain protections or barriers have been erected which serve to maintain inviolate the three primary rights of personal security, personal liberty, and private property, These may in America be said to be:Commentaries on the Laws of Virginia V 1 p 43, emphasis added, (1831)
- The bill of rights and written constitutions...
- the right of bearing arms--which with us is not limited and restrained by an arbitrary system of game laws as in England; but is particularly enjoyed by every citizen, and is among his most valuable privileges, since it furnishes the means of resisting as freemen ought, the inroads of usurpation.
- the right of applying to the courts of justice for the redress of injuries.
The right of the people to keep and bear arms shall not be infringed...and this without any qualification as to their condition or degree, as in the case in British government...Blackstone Commentaries V 1 P 143 n40 (St. George Tucker ed., emphasis added, 1803).The right of self-defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Whenever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally under the specious pretext of preserving the game; a never-failing lure to bring over the landed aristocracy to support any measure...
§ 1889. The next amendment is: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."
§ 1890. The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large militiary establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of the republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.
Note the total lack of any indication that this applied only to federal usurpation of power by rulers, or to federal subversion, or federal trampling of Rights, and the the total lack of any language indicating that the arms, or the capacity embodied therein to resist tyranny, belonged to the states, or rested with the people only upon the sufferance of the state. Note the arms are in the hands of citizens, not to enrolled members of a state organization, and note that the people are credited with the ability to triumph against usurpers, not states. Thus, his language is as applicable to citizens overthrowing state tyranny as it is to overthrowing federal tyranny. For this to be, the power to disarm the People cannot be found in state or federal hands. Joseph Story's Commentaries assumes that the Bill of Rights, at least the Second Amendment, restrains the states from disarming their people. As his writing here was to propound the origin and intention of the Constitution, it was Stare Decisis relative to Barron as well as to the matter at bar today.
How, one should ask, should the Keeping and Bearing of Arms by the People (as in the Second Amendment) afford the United States any security, if the Second Amendment is inapplicable to the States, such that they, the States, may all disarm their whole populations? The Standing Army? Look to The Debates, and count the points of fear of a Standing Army, and the points of Fear for and in behalf of a disarmed populace. The gap between the intentions of the authors of the Bill of Rights, and of the Court in Barron v. Baltimore, is large enough to frustrate the hopes behind the formation of the Union itself. A disarmed populace, dependant on a standing army, would never have succeeded in repulsing the Kings' army in the 1770's, (for the only army was that of the King), nor in resisting them again in the 1810's. They would have been ineffectual against the Mexican authority in Texas or Upper California in the 1840's, as all these militiary actions required armed citizens to to lay aside their work-a-day occupation, and, usually with their own arms, perform the martial work. The Civil War proved the whole point two ways: It cost the North $1,740,036,689 of public debt (as estimated in 1865 in 1865 dollars) to fund a professional army capable of defeating the militias-cum-armies of the Southern States. Had the North rebelled rather than the South, the South could not have interdicted.
Thus,
But only if the Second Amendment is binding upon the states. Elsewise its effect is not guaranteed to exist at all.
It merits belaborment: At the time of the debates in the State conventions on the proposed Amendments to the Constitution of the United States, the language of the delegates reflected their understanding that their States were each as bound by the provisions of the Bill of Rights as was the Federal Government. In affixing the Bill of Rights to the Federal Constitution, the State legislatures were doing no more to the Federal government than what was already done to the several States by the people thereof, whether explicitly by a Constitution and Bill of Rights (as in Virginia), or by a Constitution without a bill of rights (as in New York), or in a Commonwealth without a constitution or a bill of rights, (as in Connecticut or Rhode Island). It is accurate to label the Bill of Rights as the People establishing a Bill of Limitations on Government. Not one legislator in any legislature agreed to any provision(s) of the (proposed) Bill of Rights on the condition that the Right or Limit in question did not apply to that State. This was so for ancient rights such as the Right of Keeping and Bearing Arms and Jury Trials in all criminal matters; for new rights wherein the American Common Law differed sufficiently from the English Common Law that the point was not univeral in the States, such as the Rights of Freedom of the Press, Speech, and Religion, the restriction was aimed at the Congress explicitly. The American common law, inter alia the Right to Arms, was Sacrosanct everywhere (if you were a free white man).
For the Supreme Court to show neither conscience nor compassion for the Common Law was repugnant to the Constitution. -->
The common law was the "Supreme Law of the Land" in each State between the time of the Declaration of Independence and the Ratification of the Constitution of the United States. Look upon the debates in each State pertaining to the establishment of a Constitution therein, (and in the legislatures of Rhode island and Connecticut which had no Constitutions in that time period) and see if you can find so much as one word disparaging the English common law among them, or the American common law, which the Americans held to be but a small set of improvements on the English common law. There is not one such disparaging comment. The question addressed in the appeal of Mr. Barron in Barron v Baltimore was whether the State was restrained by the common law rights.
The driving reason for a Federal Bill of Rights (and for the Bills of Rights in the Constitutions of the States that had such bills) was to protect the Rights of the People under the common law from invasion by Government. This acceptance of the common law was universal and (nearly) uniform throughout the States. In short, no State could claim the Bill of Rights affixed to the Federal Constitution had no effect on that State without in those same words declaring that the common law rights were discarded by that State. The doctrine that a declaration of a Right shall not be binding upon an inferior level of government than where that right is declared presumes that, when we wrote the Declaration of Independence, we were just kidding. Every complaint we had against George III, our King, was that he abused our Rights or deserted their protection. "But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such government.." makes plain that any campaign of tyranny (defined as invasion of rights, or abandonment of their protection) is a proper target for bloodshed and rebellion.
Any doubt as to this assertion should be dispelled by reading New York's letters to the Continental Congress declaring the provisional and conditional ratification of the Constitution of the United States, 26 July 1788, from which we excerpt: "We, the delegates of the people of the state of New York, duly elected and met in Convention, having maturely considered the Constitution for the United States of America, agreed to on the 17th day of September, in the year 1787, by the convention then assembled at Philadelphia, in the common wealth of Pennsylvania, (a copy whereof precedes these presents,) and having also seriously and deliberately consitered the present situation of the United States, --Do declare and make it known,-- -->
"That all power is originally vested in, and consequently derived from, the people, and that government is instituted by them for their common interest, protection, and security.
"That the enjoyment of life, liberty, and the pursuit of happiness, are essential rights, which every government ought to respect and preserve.
"That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness; "That the people have an equal, natural, and unalienable right freely and peaceably to exercise their religion, according to the dictates of conscience; and that no religious sect or society ought to be favored or established by law in preference to others. -->
"That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state. ((NB, the italic emphasis is original!)) "That standing armies, in time of peace, are dangerous to liberty, and ought not to be kept up, except in cases of necessity; and that at all times the militiary should be under strict subordination to the civil power.
"That, in time of peace, no soldier ought to be quartered in any house without the consent of the owner, and in time of war only be the civil magistrate, in such manner as the laws may direct.
"That no person ought to be taken, imprisoned, of disseized of his free hold, or be exiled, or deprived of his privileges, franchises, life, liberty, or property, but by due process of law.
"That no person ought to be put twice in jeopardy of life or limb, for one and the same offence; nor, unless in case of impeachment, be punished more than once for the same offence.
"That every person restrained of his liberty is entitled to an inquiry into the lawfulness of such restraint, and to a removal thereof if unlawful; and that such inquiry or removal ought not to be denied or delayed, except when, on account of public danger, the Congress shall suspend the privilege of the writ of Habeas Corpus.
"That excessive bail ought not to be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted.
"That (except in the government of the land and naval forces, and of the militia when in actual service, and in cases of impeachment) a presentment or indictment by a grand jury ought to be observed as a necessary preliminary to the trial of all crimes cognizable by the judiciary of the United States; and such trial should be speedy, public, and by an impartial jury of the county where the crime was committed; and that no person can be found guilty without the unanimous consent of such jury. But in such cases of crimes not committed within any county of any of the United States, and in cases of crimes committed within any county in which a general insurrection may prevail, or which may be in the possession of a foreign enemy, the inquiry and trial may be in such county as the Congress shall by law direct; which county, in the two cases last mentioned, should be as near as conveniently may be to that county in which the crime may have been committed;--and that, in all criminal prosecutions, the accused ought to be informed of the cause and nature of his accusation, to be confronted with his accusers and the witnesses against him, to have the means of producing his witnesses, and the assistance of counsel for his defence; and should not be compelled to give evidence against himself.
"That the trial by jury, in the extent that it obtains by the common law of England, is one of the greatest securities to the rights of a free people, and ought to remain inviolate.
"That every freeman has a right to be secure from all unreasonable searches and seizures of his person, his papers, or his property; and therefore that all warrants to search suspected places, or seize any freeman, his papers, or property, without information, upon oath or affirmation, of sufficient cause, are grievious and oppressive, and that all general warrants (or such in which the place or person suspected are not particularly designated) are dangerous, and ought not to be granted.
"That the people have a right peaceably to assemble together to consult for their common good, or to instruct their representatives, and that every person has a right to petition or apply to the legislature for redress of grievances.
"That the freedom of the press ought not to be violated or restrained.
"That there should be, once in four years, an election of the President and Vice-President, so that no officer, who may be appointed by the Congress to act as President, in case of the removal, death, resignation, or inability, of the Presedent and Vice-President, can in any case continue to set beyond the termination of the period for which the last Presedent and Vice-President were elected.
"That nothing in the said Constitution is to be construed to prevent the legislature of any state from passing laws at its discretion, from time to time, to divide such state into convenient districts, and to apportion its prepresentatives to and amongst such districts.
"That the prohibition contained in the said Constitution, against ex post facto laws extends only to laws concerning crimes.
"That all appeals in causes determinable according to the course of the common law, ought to be by writ of error, and not otherwise.
"That the judicial power of the United States, in cases in which a state may be a party, does not extend to criminal prosecutions, or to authorize any suit by any person against a state.
"That the judicial power of the United States, as to controversies between citizens of the same state, claiming lands under grants from different states, is not to be contrued to exted to any other controversies between them, except those which relate to such lands, so claimed, under grants of different states.
"That the jurisdiction of the Supreme Court of the United States, or of any other court to be instituted by the Congress, is not in any case to be increased, enlarged, or extended, by any faction, collusion, or mere suggestion; and that no treaty is to be construed so to operate as to alter the Constitution of any state.
"Under these impressions, and declaring that the rights aforesaid cannot be abridged or violated, and that the explanations aforesaid are consistent with the said Constitution, and in confidence that the amendments which shall have been proposed to the said Constitution will receive an early and mature consideration,---We, the said delegates, in the name and in the behalf of the people of the state of New York, do, by these presents, assent to and ratify the said Constitution. In full confidence, nevertheless, that, until a convetntion shall be called and convened for the proposing amendments to the said Constitution, the militia of this state will not be continued in service out of this state for a longer term than six weeks, without the consent of the legislature thereof; that the Congress will not make or alter any regulation in this state, respecting the times, places and manner, of holding elections for senators or representatives, unless the legislature of this state shall neglect or refuse to make laws or regulations for the purpose, or from any circumstance be incapable of making the same; and that, in those cases, such power will only be exercised until the legislature of this state shall make provision in the premises; that no excise will be imposed on any article of the growth, production, or manufacture of the United States, or any of them, within this state, ardent spirits excepted; and the Congress will not lay direct taxes within this state, but when the moneys arising from the impost and excise shall be insufficient for the public exigencies, nor then, until Congress shall first have made a requisition upon this state to assess, levy, and pay, the amount of such requisition, made agreeably to the census fixed in the said Constitution, in such way and manner, as the legislature of this state shall judge best; but that in such case, if the state shall neglect or refuse to pay its proportion pursuant to such requisition, then the Congress may assess and levy this state's proportion together with interest, at the rate of six per centum per annum, from the time at which the same was required to be paid.
"Done in Convention, at Poughkeepsie, in the county of Duchess, in the state of New York, the 26th day of July, in the year of our Lord 1788.
"By order of the Convention. George Clinton, President Attested. John M'Kesson, A.B. Banker, Secretaries. " -->
Did New York, in it's Constitutions of 1777 (first) or 1786 (operative at the time of this ratification), claim power from the people to invade the rights of the people? It explicitly did not.
Defendants challenge anybody to find even one legislator, in any ratification debate, stating anything to the effect that these limitations, the Bill of Rights, either as proposed or as ratified, did in no wise tie the hands of the state legislatures, that the states were instead free to forbid one Church and impose another; that they could punish any speech and every publication; that assembly and petition were at the discretion of the (state) Legislature; that no man's guns were secure to him but that the state could claim a monopoly on Force within that state; that Search and Seizure were, throughout the state, at the discretion of the state, whether by general warrant, or without cause or warrant altogether; that Due Process was a right in the federal Courts, but merely a vain wish in the Courts of the state; that compulsory means were the states, and that the defendant was on his bloody own; that in criminal cases Counsel was yours if you could afford it and if the Court allowed, that Juries were at the Courts discretion; that the common law in civil matters was for federal Courts only; and that punishments, bails and fines were the pleasure of the legislature regardless of degrees or methods. Your search will be in vain. The states demanded such limitations on the federal Government as were generally upon them already both as well in states with Bills of Rights, as those with Constitutions that had no Bill of Rights, as in states, both of them, that had not even a Constitution. They were bound by the Bill of Rights not because of the ink on the paper, but because of the common law rights the Bill of Rights arose from.
In conclusion on this point:
We consider Barron v Baltimore to be well proved both historically counterfactual and intrinsically nonsensical. Let it be understood that the Bill of Rights never was irrelevant to the states.