The thought coalesced, finally, on reading a post over at Grim’s Hall, a blog I strongly recommend on GPs.
A problem I’ve had with Bruen from the start, hanging its hat on historical tradition as it does, is that the opinion, thereby, accepts as constitutionally legitimate any weapon regulation, so long as it’s been historically long-standing.
The Second Amendment carries no such caveat or exception, though. Its bar on the government is universal and unequivocal: the right of the people to keep and bear Arms, shall not be infringed. The first attempt to regulate that right should have been ruled unconstitutional. It’s not too late today.
…7th Circuit recently upheld Illinois’ ban, noting that the ubiquitous firearm from 1791 through the mid-19th century was a single-shot muzzleloader. AR-15s with large-capacity magazines, the majority said, are “a far cry from these antecedents.”
This seems to me a patently erroneous argument by the Sages of the Seventh Circuit. The Founders, along with, especially, those members of the first Congress who wrote the Second Amendment, along with the People who ratified it, were no strangers to innovation and to technological advancement. Yet no one in any of the courts that I’ve seen have addressed the premise that with that broad awareness, and against the backdrop of so many of the Continental Army’s and Navy’s large weapons systems employed in the just-concluded Revolutionary War were privately owned, the Amendment was written to be technologically agnostic.
That backdrop, those large weapon systems being privately owned, strikes me as the only valid historical tradition.
The most clarifying argument to me is the parallel one with regard to the First Amendment – we don’t apply it only to quills and inkpots, or hand run presses. Neither Amendment – nor any of the others in the Bill of Rights – references any level of technology. They simply and effectively constrain the federal government from abusing the power lent to it under the social contract.