I think it’d be a little crazy for the constitution to say “ The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” and then later on “oh actually it shall”.
Was it "a little crazy" that the SCOTUS said that the entire Bill of Rights was only binding on the federal government ; that all federal courts were indifferent to whether or not state and local governments were violating freedom of speech, conducting unreasonable searches and seizures, imposing cruel and unusual punishments, etc ? (Keep in mind that every state constitution had a Bill of Rights too, and the way to rectify violations of rights by state and local governments was to address those issues in state courts.)
There are not many that will say it (in part because it's just a thought experiment at this point), but I absolutely think Barron v. Baltimore was wrongly decided. The First Amendment clearly only involved the federal government with its reference to the power of Congress. The Seventh may also be considered as only applying to the federal government. That is all though.
You're certainly not the only one to make that argument — many Reconstruction-era Republicans (even before the passage of the Fourteenth Amendment) believed that much of the Bill of Rights applied to the states as well as the federal government,
Barron v. Baltimore notwithstanding.
For example, in New York's ratification debates on the Thirteenth Amendment, Alexander Bailey (a Republican state senator, and an attorney) made the following remarks:
But it is scarcely possible to add an amendment to the Constitution without interfering with the rights, or restraining the powers theretofore exercised by the States, or by taking directly from the States some of their privileges and powers and transferring them to the general government. This may be illustrated by examining the amendment proposed and adopted in 1789.
Article two of these amendments declares that the right to keep and bear arms shall not be infringed. Prior to this, the States had the entire control of this matter, and here that control is taken away. And it may be well to inquire why, if the people may amend the Constitution so as to secure to all the right to use the arms furnished by the gunsmith, they may not so amend it as to secure to all the right to use the arms given to them by the Almighty?
Again, articles four, five and six prescribe the limits within which search warrants may issue—require the presentment of a Grand Jury in order to hold a person to answer a capital or otherwise infamous crime—protect criminals from being witnesses against themselves, prevent private property from being taken for public use, without just compensation—require that criminals shall have the assistance of counsel—make a trial by jury necessary in all cases at common law, and preventing any fact tried by jury from being re-examined in any Court than according to the rules of the common-law.
These are broad sweeping provisions retaining the powers of the States in many important particulars, and over all of which, they had entire jurisdiction and control prior to the adoption of these amendments. Here then are many important instances in which an amendment of the Constitution has taken away from the States powers they previously possessed, and otherwise interfere with what are here called their “reserved rights.” And if it be true that there is no power to take away or interfere with their “rights”—then the amendments of 1789 are void.
Notably, Bingham himself believed for a time that the Bill of Rights was binding on the states. It was only after he read
Barron v. Baltimore in February of 1866 that he changed his mind and began advocating for an amendment to clarify the law, and many others persisted in rejecting the idea that the Bill of Rights only applied to the federal government. Robert Hale of New York, for instance, raised some opposition to a draft of the Fourteenth Amendment because he believed the federal government already had the power to enforce the Bill of Rights against the states and saw the proposal as unnecessary.
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