5/11 scotus briefs

https://michellawyers.com/wp-conten...NY-OR-PN-RI-VA-WA-ISO-Defendant-Appellant.pdf

16 States AG for ammo background checks.

This case is not, as the district court suggested, one where a State “run roughshod over constitutionally protected rights” by asserting, without the requisite substantiation, that the regulations at issue “promote the government interest.

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Also cited is "Kolbe" 4th circuit. Judge Wilkinson.

Too jcutonilli & kcbrown;

Please read the Justice Thomas, with whom Justice Kavanaugh joins as to all but Part II, dissenting from the denial of certiorari.

https://www.law.cornell.edu/supremecourt/text/18-824

Likewise, in State v. Chandler, 5La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”

Those who believe that the Second Amendment preserves only a militia-centered right place great reliance on the Tennessee Supreme Court’s 1840 decision in Aymette v. State, 21 Tenn. 154. The case does not stand for that broad proposition; in fact, the case does not mention the word “militia” at all, except in its quoting of the Second Amendment . Aymette held that the state constitutional guarantee of the right to “bear” arms did not prohibit the banning of concealed weapons. The opinion first recognized that both the state right and the federal right were descendents of the 1689 English right, but (erroneously, and contrary to virtually all other authorities) read that right to refer only to “protect[ion of] the public liberty” and “keep[ing] in awe those in power,” id., at 158. The court then adopted a sort of middle position, whereby citizens were permitted to carry arms openly, unconnected with any service in a formal militia, but were given the right to use them only for the military purpose of banding together to oppose tyranny.

This odd reading of the right is, to be sure, not the one we adopt—but it is not petitioners’ reading either. More importantly, seven years earlier the Tennessee Supreme Court had treated the state constitutional provision as conferring a right “of all the free citizens of the State to keep and bear arms for their defence,” Simpson, 5 Yer., at 360; and 21 years later the court held that the “keep” portion of the state constitutional right included the right to personal self-defense: “[T]he right to keep arms involves, necessarily, the right to use such arms for all the ordinary purposes, and in all the ordinary modes usual in the country, and to which arms are adapted, limited by the duties of a good citizen in times of peace.” Andrews, 50 Tenn., at 178; see also ibid. (equating state provision with Second Amendment ).

https://www.law.cornell.edu/supct/html/07-290.ZO.html

press1280 said:

Then wouldn't the most relevant case law be where we start? Nunn, Chandler, In re Brickey, exc. ? We want to get more original we go with Bliss v. Commonwealth.
But after Kachalsky the other circuits simply follow that and ignore or use the new claim that the antebellum cases not be followed because it was all about keeping slaves in check.

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I think the biggest issue is that we give away the notion that the people themselves provide an element of public safety down to the individual level that the government cannot provide. We allow the government to claim more of public safety than they deserve and by arguing it is purely an individual right we ignore the public safety contributions of its citizens.

I certainly think the open/concealed carry cases you mention contribute to the understanding, but you need to provide the explanation about why concealed carry was prohibited.

pcfixer said:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3149162
Robert T. Miller
University of Iowa College of Law; New York University

The problem of what should count as a compelling governmental interest may seem intractable because the phrase tends to imply that government has many interests, some of which are of greater normative value than others. Thus, any account of which governmental interests are compelling would seem to presuppose a robust normative theory of government — that is, a whole political theory and maybe even a whole moral theory as well. Obviously, courts are not in a position to articulate such theories, and, even they were, any such theory would be highly controversial.

So the question bears if the USSC doesn't use "compelling government interest"-- Why can state governments use this phase?

https://www.law.cornell.edu/wex/strict_scrutiny

Other Applications
The application of strict scrutiny, however, extends beyond issues of equal protection. Restrictions on content-based speech, for instance, are to be reviewed under the strict scrutiny standard as well. Notably, the Supreme Court has refused to endorse the application of strict scrutiny to gun regulations, leaving open the question of which precise standard of review is to be employed when addressing the Second Amendment.

So that leaves the lawyers and courts to evaluated a law (2A) Based on a literal interpretation based on text, history, and tradition.

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There certainly are issues with the court's scrutiny process. I am not sure they are so bad that the court will scrap the scrutiny process in its entirety. I think minor changes can address these issues.

It seems that the courts will likely find all most all the 2A cases to date would be found unconstitutional if the court properly applied intermediate scrutiny. It requires the court to understand that guns are not the issue criminals are and the the typical citizen provides a component of public safety that the government cannot. In order for that to happen, better arguments need to be made.

pcfixer said:

Too jcutonilli & kcbrown;

Please read the Justice Thomas, with whom Justice Kavanaugh joins as to all but Part II, dissenting from the denial of certiorari.

https://www.law.cornell.edu/supremecourt/text/18-824

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I have read it and was not impressed. He could not even get Kavanaugh to support the entire dissent.

This is what I said about his dissent earlier in this thread.

jcutonilli said:

He certainly identifies a problem, but where is the error with the intermediate scrutiny standard the court applied? All he can say is that it appears to be made up, there is no "core" vs peripheral distinction, and it is “a tripartite binary test with a sliding scale and a reasonable fit.”. I get he disagrees with the result, but what exactly is wrong with the lower court's analysis.

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jcutonilli said:

I think the biggest issue is that we give away the notion that the people themselves provide an element of public safety down to the individual level that the government cannot provide. We allow the government to claim more of public safety than they deserve and by arguing it is purely an individual right we ignore the public safety contributions of its citizens.

I certainly think the open/concealed carry cases you mention contribute to the understanding, but you need to provide the explanation about why concealed carry was prohibited.

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Why would the CC prohibition need an explanation in the case of Norman or Rogers where CC wasn’t the issue at heart?

press1280 said:

Why would the CC prohibition need an explanation in the case of Norman or Rogers where CC wasn’t the issue at heart?

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It needs an explanation because it literally represents a prohibition on carry outside the home. Rogers is consistent with a rationale that it is acceptable to prohibit carry outside the home. When you look at why they prohibited carry, it was because there was no legitimate reason for anyone to do it. It actually demonstrates something different. It is not about simply prohibiting carry, it is about an uncommon/unusual approach, which has changed over time. It suggests that carry prohibitions may not have the historical basis that the literal interpretation suggests.

It sounds a lot like judges deciding on a case by case basis whether the right is really worth insisting upon.

press1280 said:

It sounds a lot like judges deciding on a case by case basis whether the right is really worth insisting upon.

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more in category of Not Pro gun and Not Pro 2A judge. Don't ya know guns are bad and kill people. "sarcasm"

press1280 said:

It sounds a lot like judges deciding on a case by case basis whether the right is really worth insisting upon.

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How is a historical precedent deciding on a case by case basis whether the right is really worth insisting upon? Heller certainly suggests historical precedent is a proper methodology. I am simply suggesting that one turn what appears to be a negative historical precedent into something more positive by explaining the reasons why. Without this explanation it suggest something negative and allows the court to accept more restrictions that were really applied historically.

jcutonilli said:

You don't seem to be following Heller. For example, Breyer indicated that there were a number of founding era laws that restricted the ability of the people to keep and bear arms.

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Just as laws that exist today are not necessarily indicative of the general understanding of the national population's as regards the underlying liberties involved, so too is the same true of laws in the founding era. Put another way, you can't use the mere existence of a law alone as a metric of acceptability, particularly if the law in question is highly limited in jurisdiction. Representative governments tend to reflect the sentiments of the representatives much more than the sentiments of the population, but it is the latter, and not the former, that matters here as regards the understanding of the founding generation, save for when the representatives in question were the original authors of the Constitution themselves.

Your arguments seem to suggest that these founding era laws should be found to be unconstitutional because they infringe on the right.

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And if those laws do not reflect the general understanding of the national founding population at large, or the understanding of the authors of the Constitution, then they should be found Unconstitutional.

The majority opinion suggests that these laws don't really interfere ability of a citizen acting in self defense or would not be enforced against a citizen acting in self defense. They would not be considered infringements because they don't interfere with the ability to act in self defense.

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That doesn't matter. The Constitutionally protected right is of keep and bear of arms. That is made explicit in the text of the Constitution. The right to keep and bear arms flows in part from the right to self-defense, but it is still infringement on the right to arms that matters with respect to the Constitutional command.

Self defense is but one of the reasons for the necessity of the right to arms. There are a number of other reasons, such as acquisition of sustenance (hunting), preservation of liberty (a check on tyranny), upholding the rule of law (one of the understood duties of the militia), etc. But whatever the reason, again it is the right to keep and bear arms that the Constitution protects, and it is thus that and that alone which matters.

This is especially true because mere keeping and bearing of arms is not itself an infringement upon anyone's rights by whomever is keeping and/or bearing. What can infringe upon rights is actual use of those arms, and that is something that can be and is directly addressed in law. One may not shoot another except in self defense, for instance, and discharge itself is highly regulated regardless. None of those laws impose on the right to keep and bear so long as they do not impose upon one or more of the fundamental purposes for the right to arms.

The laundry list of examples seems to be consistent with this same type of reasoning. The historic prohibition on concealed carry suggests the same thing. The right is more limited than what you are claiming based on history.

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I've seen no evidence that the prohibition on concealed carry is something that the founding generation understood to be allowable. If anything, Bliss says otherwise. It is the only case on the subject I am aware of that could have been decided by members of the founding generation. All others were decided enough later that they were almost certainly decided by the descendants of the founding generation, and we know from plenty of observation just how much of a change in viewpoint can arise from but one generation's worth of difference.

kcbrown said:

Just as laws that exist today are not necessarily indicative of the general understanding of the national population's as regards the underlying liberties involved, so too is the same true of laws in the founding era. Put another way, you can't use the mere existence of a law alone as a metric of acceptability, particularly if the law in question is highly limited in jurisdiction. Representative governments tend to reflect the sentiments of the representatives much more than the sentiments of the population, but it is the latter, and not the former, that matters here as regards the understanding of the founding generation, save for when the representatives in question were the original authors of the Constitution themselves.




And if those laws do not reflect the general understanding of the national founding population at large, or the understanding of the authors of the Constitution, then they should be found Unconstitutional.




That doesn't matter. The Constitutionally protected right is of keep and bear of arms. That is made explicit in the text of the Constitution. The right to keep and bear arms flows in part from the right to self-defense, but it is still infringement on the right to arms that matters with respect to the Constitutional command.

Self defense is but one of the reasons for the necessity of the right to arms. There are a number of other reasons, such as acquisition of sustenance (hunting), preservation of liberty (a check on tyranny), upholding the rule of law (one of the understood duties of the militia), etc. But whatever the reason, again it is the right to keep and bear arms that the Constitution protects, and it is thus that and that alone which matters.

This is especially true because mere keeping and bearing of arms is not itself an infringement upon anyone's rights by whomever is keeping and/or bearing. What can infringe upon rights is actual use of those arms, and that is something that can be and is directly addressed in law. One may not shoot another except in self defense, for instance, and discharge itself is highly regulated regardless. None of those laws impose on the right to keep and bear so long as they do not impose upon one or more of the fundamental purposes for the right to arms.




I've seen no evidence that the prohibition on concealed carry is something that the founding generation understood to be allowable. If anything, Bliss says otherwise. It is the only case on the subject I am aware of that could have been decided by members of the founding generation. All others were decided enough later that they were almost certainly decided by the descendants of the founding generation, and we know from plenty of observation just how much of a change in viewpoint can arise from but one generation's worth of difference.

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Heller never claimed that today's laws are indicative of the right. It stated that the right did not come from the Constitution, that it is a preexisting right.

How are you supposed to evaluate the limits of the right as it existed at the time of the founding?

Evaluating the restrictions they placed on things seems to provide such an insight. Heller did not look at just one law to demonstrate the understanding of the right. There is a pretty extensive list that they evaluated. You have not provided any real explanation as to why these restrictions existed or where to find evidence that there really were no restrictions.

Your explanation as to why you cannot shoot someone except in self defense, or discharge seems inconsistent with your explanation of what keep and bear arms means. Those are certainly restrictions on bearing arms that is not mentioned in the text. How do you know that there are not many more that are not mentioned in the text if you agree that not all restrictions are specifically mentioned in the text? Doesn't that undermine your argument that anything that impinges on the right is infringement?

If there really was no prohibition on concealed carry, why did Heller list all of those court cases and where does the evidence exist to justify there really were no prohibitions.

I get the impression that you read my message in a hurry or something, because some of what you say suggests that you didn't understand what I wrote. Re-reading my original message may be helpful.

jcutonilli said:

Heller never claimed that today's laws are indicative of the right.

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Nor did I. My argument is that today's laws are often not indicative of how the population at large today feels about the liberty that the laws in question restrict, and that the laws of the past are no different in that respect. As such, you can't necessarily use historical laws to indicate what the population as a whole thought about the right, most especially in those cases where the laws in question were highly limited in their jurisdiction (meaning, if you just had a single law in a single city in the country, as an example, that law's existence is no indicator at all of what the nation's population thought).

It stated that the right did not come from the Constitution, that it is a preexisting right.

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Correct. It's a preexisting right that has a scope that was understood by those who authored and ratified the Constitution (the founding generation) and/or those who came before the founding generation.

How are you supposed to evaluate the limits of the right as it existed at the time of the founding?

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By looking at the widespread laws that existed at the time, along with the writings of numerous people who lived at the time.

Evaluating the restrictions they placed on things seems to provide such an insight.

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It can, but only if those restrictions were widespread. Restrictions that were in place only in select areas cannot count for that, absent other historical indications such as writings of the time.

Your explanation as to why you cannot shoot someone except in self defense, or discharge seems inconsistent with your explanation of what keep and bear arms means. Those are certainly restrictions on bearing arms that is not mentioned in the text.

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It's not a direct restriction on bearing arms. But a restriction on how one can use a weapon may be a restriction upon one of the foundational reasons for the right to arms, and that would, absent compelling evidence that the founders understood the scope of the right to not encompass that which was restricted, make it an infringement on the right.

Put another way, the right to keep and bear arms is itself a minimum that cannot be infringed, but because it exists for a set of valid purposes, infringement upon those valid purposes is also not permissible even if the restriction in question is not directly upon keep or bear. This is so because if one were to, as an example, completely forbid all of the valid purposes for which the right exists, then the right would become a paperweight.

The total scope is thus the scope of keep and bear itself, plus the scope of all valid purposes for which the right to keep and bear was believed to exist. The actual scope of each is that which was understood by those who adopted the right. Additional purposes and scopes can be added over time, but that which was understood at the time of adoption of the right is the minimum scope.

How do you know that there are not many more that are not mentioned in the text if you agree that not all restrictions are specifically mentioned in the text? Doesn't that undermine your argument that anything that impinges on the right is infringement?

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Anything that impinges on the right is infringement. To impinge on the right, the law in question must operate within the scope of the right. The scope of the right is that which was understood by those who adopted it. Founding-era restrictions may be indicators of what those who adopted it thought the scope to exclude, depending on how widespread those restrictions were. Other founding-era sources can also shed light on the question. But in the absence of substantial evidence showing that the founding generation as a whole believed that the scope of the right doesn't encompass something that is otherwise within the definition of the right, one must assume that the scope of the right does encompass it. And this is so due to the necessary presumption of liberty, since liberty was one of the key drivers of the Revolutionary War and subsequent founding of the country.

So it doesn't undermine my argument in the slightest. Widespread founding-era laws are likely (but not guaranteed) to inform of the scope of the right. But laws which were not widespread cannot by themselves be used for that purpose. The equivalent of using a law that was present only in select areas would be for someone today to find a law in, say, a single town in the entire country, and then claim that it is indicative of what the country thinks. It would be a blatantly incorrect inference. At most, such a law would indicate what the people in the town think, nothing more.

If there really was no prohibition on concealed carry, why did Heller list all of those court cases and where does the evidence exist to justify there really were no prohibitions.

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The presumption has to be that restrictions didn't exist unless there is proper evidence of them. Otherwise, you could make such a claim for any restriction you like, and then claim that failure to find corresponding evidence does nothing to contradict the claim. All of the cases cited by Heller save for Bliss were decided by people not of the founding generation, and therefore cannot be indicative of what the founding generation believed.

I'm not claiming that the founding generation didn't believe that concealed carry was excluded from the scope of the right. I'm saying that the only founding-era jurisprudential evidence we have (at least that I know of) is that concealed carry was considered to be included in the right, and if the claim in Heller about the scope of the right is to be taken at face value, then it follows that founding-era sources will need to be consulted in order to arrive at a proper determination of that. If those sources show that the population at large believed concealed carry to not be included in the scope of the right, then so be it.

kcbrown said:

I get the impression that you read my message in a hurry or something, because some of what you say suggests that you didn't understand what I wrote. Re-reading my original message may be helpful.

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Maybe the problem is that you are not saying what you think you are saying

Nor did I. My argument is that today's laws are often not indicative of how the population at large today feels about the liberty that the laws in question restrict, and that the laws of the past are no different in that respect. As such, you can't necessarily use historical laws to indicate what the population as a whole thought about the right, most especially in those cases where the laws in question were highly limited in their jurisdiction (meaning, if you just had a single law in a single city in the country, as an example, that law's existence is no indicator at all of what the nation's population thought).

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How today's population understand the scope is not relevant. In your first sentence you used a plural suggesting a wide spread applicability. In the third sentence you indicated a general statement that governments reflect the representatives rather than the population. Again suggesting that laws are inappropriate for use in determining the understanding of the right. Yet you then say the following

By looking at the widespread laws that existed at the time, along with the writings of numerous people who lived at the time.

It can, but only if those restrictions were widespread. Restrictions that were in place only in select areas cannot count for that, absent other historical indications such as writings of the time.

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Did Heller not look at enough laws/cases? If not what else needs to be evaluated?


From Heller bear means

wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.'" Id., at 143, 118 S.Ct. 1911 (dissenting opinion) (quoting Black's Law Dictionary 214 (6th ed.1990)). We think that Justice GINSBURG accurately captured the natural meaning of "bear arms." Although the phrase implies that the carrying of the weapon is for the purpose of "offensive or defensive action," it in no way connotes participation in a structured military organization.

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There is no limitation that restricts the definition of bear to the defensive use of arms. Yet you state

It's not a direct restriction on bearing arms. But a restriction on how one can use a weapon may be a restriction upon one of the foundational reasons for the right to arms, and that would, absent compelling evidence that the founders understood the scope of the right to not encompass that which was restricted, make it an infringement on the right.

Put another way, the right to keep and bear arms is itself a minimum that cannot be infringed, but because it exists for a set of valid purposes, infringement upon those valid purposes is also not permissible even if the restriction in question is not directly upon keep or bear. This is so because if one were to, as an example, completely forbid all of the valid purposes for which the right exists, then the right would become a paperweight.

The total scope is thus the scope of keep and bear itself, plus the scope of all valid purposes for which the right to keep and bear was believed to exist. The actual scope of each is that which was understood by those who adopted the right. Additional purposes and scopes can be added over time, but that which was understood at the time of adoption of the right is the minimum scope.

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Based on my reading of Heller, they believe that the terms keep and bear arms is too broad and that the right is actually a subset. It was based on a general understanding of the laws in existence at the time. They did not specify the exact details, instead they tried to describe in general the types of restrictions that might be allowable.

Anything that impinges on the right is infringement. To impinge on the right, the law in question must operate within the scope of the right. The scope of the right is that which was understood by those who adopted it. Founding-era restrictions may be indicators of what those who adopted it thought the scope to exclude, depending on how widespread those restrictions were. Other founding-era sources can also shed light on the question. But in the absence of substantial evidence showing that the founding generation as a whole believed that the scope of the right doesn't encompass something that is otherwise within the definition of the right, one must assume that the scope of the right does encompass it. And this is so due to the necessary presumption of liberty, since liberty was one of the key drivers of the Revolutionary War and subsequent founding of the country.

So it doesn't undermine my argument in the slightest. Widespread founding-era laws are likely (but not guaranteed) to inform of the scope of the right. But laws which were not widespread cannot by themselves be used for that purpose. The equivalent of using a law that was present only in select areas would be for someone today to find a law in, say, a single town in the entire country, and then claim that it is indicative of what the country thinks. It would be a blatantly incorrect inference. At most, such a law would indicate what the people in the town think, nothing more.

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Heller seems to disagree with you about the interpretation of cases decided after the enactment of the amendment. They were responding to the notion that legislative history was important

It most certainly does not refer to the examination of a variety of legal and other sources to determine the public understanding of a legal text in the period after its enactment or ratification. That sort of inquiry is a
critical tool of constitutional interpretation. As we will show, virtually all interpreters of the Second Amendment in the century after its enactment interpreted the amendment as we do.

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I seems that they feel that those court cases do demonstrate the proper interpretation of the right.

The presumption has to be that restrictions didn't exist unless there is proper evidence of them. Otherwise, you could make such a claim for any restriction you like, and then claim that failure to find corresponding evidence does nothing to contradict the claim. All of the cases cited by Heller save for Bliss were decided by people not of the founding generation, and therefore cannot be indicative of what the founding generation believed.

I'm not claiming that the founding generation didn't believe that concealed carry was excluded from the scope of the right. I'm saying that the only founding-era jurisprudential evidence we have (at least that I know of) is that concealed carry was considered to be included in the right, and if the claim in Heller about the scope of the right is to be taken at face value, then it follows that founding-era sources will need to be consulted in order to arrive at a proper determination of that. If those sources show that the population at large believed concealed carry to not be included in the scope of the right, then so be it.

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While Bliss was an outlier, it appears that the state changed their constitution based on the outcome of the case. Not a strong indication that it represents even the peoples understanding of the right.

jcutonilli said:

Maybe the problem is that you are not saying what you think you are saying

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That, of course, is always possible ...

How today's population understand the scope is not relevant.

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I never said it was. I'm only using the fact that you can't use modern laws alone to indicate the sentiments of the modern population to indicate why you likewise can't use founding era laws alone to indicate the sentiments of the founding era population.

In your first sentence you used a plural suggesting a wide spread applicability.

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No, my first sentence ("Just as laws that exist today are not necessarily indicative of the general understanding of the national population's as regards the underlying liberties involved, so too is the same true of laws in the founding era.") is there to indicate the potential/likely absence of widespread applicability.

In the third sentence you indicated a general statement that governments reflect the representatives rather than the population. Again suggesting that laws are inappropriate for use in determining the understanding of the right.

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You seem to be trying to shoehorn the use of laws into a universal appropriate/inappropriate category. You can't do that.

A given law, even if widespread, is not of itself sufficient evidence that the population at large is in agreement with the restriction, precisely because it is indicative of the thinking of the representatives, and that thinking is not necessarily in agreement with the thinking of the population at large. But neither is it true that said law indicates nothing at all. It provides a hint of what the population might believe. Because of the disparity between representatives and the population at large with respect to at least some things, you need more than the mere existence of laws to show what the population at large believes. That is as true of historical laws as it is of modern laws.

Yet you then say the following

Did Heller not look at enough laws/cases? If not what else needs to be evaluated?

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Most of the cases that Heller examined were decided too late to be relevant to the question of what the founding generation believed. And laws themselves are, as I noted above, generally not sufficient evidence in and of themselves. What else needs to be evaluated? I stated that explicitly: "along with the writings of numerous people who lived at the time".

What's needed is a full historical inquiry. Not just of the laws at the time, but of the sentiments.

From Heller bear means

There is no limitation that restricts the definition of bear to the defensive use of arms.

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Correct.

Yet you state


Based on my reading of Heller, they believe that the terms keep and bear arms is too broad and that the right is actually a subset.

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The scope of the right is what makes it a subset. That scope is defined by the beliefs of the people who adopted the right.

The initial ("theoretical") scope of the right is the union of the scope from the definition of the right and the definitional scopes of the valid purposes for the right. The final ("actual") scope of the right is the union of the founding era beliefs with respect to the theoretical scopes above. Generally speaking, what you'll find with respect to those beliefs is various allowable restrictions, which represent carve-outs in the theoretical scope. This makes the actual scope a subset of the theoretical one. A law infringes when it impinges upon the actual scope of the right.

So if I were defining a method to use to determine whether or not a given law infringes, something like this is what I would come up with:

• Look at the definition of the right, and then the valid purposes of the right. If the law does not impinge upon any of those, then there's no violation of the right and you're done. This is so because if the law falls outside of the larger theoretical scope, it clearly must fall outside of any subset of that theoretical scope, and the actual scope is a subset of the theoretical scope.
  
• If it intrudes upon one or more of those, then for those theoretical scopes which it intrudes upon, perform a historical inquiry into the founding-era beliefs as regards them. If insufficient evidence can be found to show that the founding population believed all of those scopes to exclude that which the law intrudes upon, then the law infringes, is thus invalid, and you're done. If sufficient evidence is found then the law does not infringe (unless the carve-out which would otherwise save the law no longer has a rational basis. See below), and again you're done.

Now, I think a valid argument can be made that when performing the historical inquiry, if one can discern the purpose behind the belief in question, that purpose is what should control the outcome as regards the effect on the scope. For instance, it seems clear that the purpose behind restrictions on concealed carry was that concealed carry was regarded as something only criminals would do, and that an honest man would show up front that he was armed. Such reasoning isn't necessarily valid today, and so modern restrictions on concealed carry aren't necessarily valid. Put another way, if the original reasoning behind a given carve-out is no longer valid, then neither is the carve-out, and this is so because to be Constitutional, laws must at least have a rational basis. But a modern carve-out is not permissible, precisely because the scope of the right is that which was understood by those who adopted it. If you want a modern carve-out, then you should get a Constitutional Amendment passed to encode it. Put it all together, and I think the best way to say it is that the scope of the right encompasses at least that which was understood by those who adopted the right, but no less than that which was understood by those who adopted the right.

It was based on a general understanding of the laws in existence at the time. They did not specify the exact details, instead they tried to describe in general the types of restrictions that might be allowable.

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Yes, but they failed to justify those types of restrictions on the basis of founding-era sources.

Heller seems to disagree with you about the interpretation of cases decided after the enactment of the amendment. They were responding to the notion that legislative history was important

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You have to look at the use of those cases in their full context. The full context was the discussion about the right not historically being considered "unlimited". There is a difference between noting that the right is not unlimited and noting how the right is not unlimited. Heller's purpose for using the cases was the former, not the latter.

I seems that they feel that those court cases do demonstrate the proper interpretation of the right.

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They might. And yet, the only case which was decided by the founding generation is one that contradicts the rest. Surely it's the founding generation case that must be given more weight? And note, too, that Heller didn't have to cite Bliss at all, but did anyway, despite its holding being in opposition to the holdings of the later cases. That Heller cited all of these cases more or less together tells me that Heller's purpose for citing them was not to show what the scope of the right includes or excludes, but rather to show that the scope of the right is not unlimited.

While Bliss was an outlier, it appears that the state changed their constitution based on the outcome of the case. Not a strong indication that it represents even the peoples understanding of the right.

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Now that could, I agree, be something that is much more indicative of the beliefs at the time, depending on what the ratification process is. I don't recall Heller mentioning any such thing, however.

Heller's main purpose was to demonstrate that the right was an individual one and not tied to service in the militia. It accomplished this but left a lot of unanswered questions. It did not answer what the extent of the right is. One thing it did answer was that the right was define prior to the creation of the amendment, but did not elaborate as to how to figure that out.

One way Heller used to evaluate the individual right was to examine laws of the time. There seems to be a disagreement over how to do this. I am not trying to shoehorn the use of laws into a universal appropriate/inappropriate category. I am trying to understand where you believe the line between appropriate and inappropriate lies. Certainly one unique law is not appropriate. You seem to suggest that Heller might be wrong because they did not evaluate "the writings of numerous people who lived at the time". Who are these people and where are these writings you claim describe the extent of the right to keep and bear arms? What happens if they don't exist. I am not aware of anyone presenting such evidence.

We do not know if the scope of the right is a subset. All we really know is that the scope of the right is at least as big as the right. If the right is really the extent of what keep and bear arms means then there is no subset. When you union anything you wind up combining both sets together. Creating a union with the beliefs of the people who adopted the right does not make the right smaller, it either remains the same or gets bigger depending on the amount of overlap.

The context of the right not being consider "unlimited" is with respect to the dictionary definition

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

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The references to keep and carry (bear) any weapon (arms) seem pretty clear. Heller did not cite Bliss when they stated this. Bliss was cited as part of a number of cases that demonstrate that self-defense is part of the right.

jcutonilli said:

How is a historical precedent deciding on a case by case basis whether the right is really worth insisting upon? Heller certainly suggests historical precedent is a proper methodology. I am simply suggesting that one turn what appears to be a negative historical precedent into something more positive by explaining the reasons why. Without this explanation it suggest something negative and allows the court to accept more restrictions that were really applied historically.

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The CCW restrictions were never really explored by any American courts, it was simply accepted that the practice was evil and sneaky and because open carry was legal. One thing of note was that the "pocket pistols" were small and cheap and were frowned upon and even banned from public carry because the lower classes (and minorities) would be more apt to own these than the horseman's/army/navy pistols which were larger and harder to conceal. Restrictions targeted towards poor individuals is a non-starter today but back then was more acceptable.

jcutonilli said:

Maybe the problem is that you are not saying what you think you are saying


How today's population understand the scope is not relevant. In your first sentence you used a plural suggesting a wide spread applicability. In the third sentence you indicated a general statement that governments reflect the representatives rather than the population. Again suggesting that laws are inappropriate for use in determining the understanding of the right. Yet you then say the following

Did Heller not look at enough laws/cases? If not what else needs to be evaluated?


From Heller bear means

There is no limitation that restricts the definition of bear to the defensive use of arms. Yet you state


Based on my reading of Heller, they believe that the terms keep and bear arms is too broad and that the right is actually a subset. It was based on a general understanding of the laws in existence at the time. They did not specify the exact details, instead they tried to describe in general the types of restrictions that might be allowable.



Heller seems to disagree with you about the interpretation of cases decided after the enactment of the amendment. They were responding to the notion that legislative history was important



I seems that they feel that those court cases do demonstrate the proper interpretation of the right.



While Bliss was an outlier, it appears that the state changed their constitution based on the outcome of the case. Not a strong indication that it represents even the peoples understanding of the right.

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I'd actually argue it goes the other way. Think about it, Bliss was based only on the KY RKBA so it would have no bearing on what other states did (and obviously some went the other way). But look at the state RKBA amendments evolution after Bliss. None mentioned concealed weapons before this time but they sprang up afterward. This tells me that at the very least they were concerned enough that their courts could rule the same way Bliss did, so they added the concealed weapon caveat. And when you make a statement that "The people have the right to keep and bear arms EXCEPT the legislature shall have the right to regulate concealed weapons," that affirmatively indicates concealed weapons WERE part of the right but are now being carved out.

jcutonilli said:

The context of the right not being consider "unlimited" is with respect to the dictionary definition
Quote:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.
The references to keep and carry (bear) any weapon (arms) seem pretty clear. Heller did not cite Bliss when they stated this. Bliss was cited as part of a number of cases that demonstrate that self-defense is part of the right.
.

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http://www.davekopel.com/2A/Mags/Our-2nd-Amendment-The-Original-Perspective.htm
I did find this:

Tucker's American Blackstone reprinted Blackstone's commentary on what Blackstone called the five "auxiliary rights of the subject." These were rights (such as the right to seek legal redress in court, and the right to petition) whose main purpose was to safeguard primary rights (personal liberty, personal security, and property).

Blackstone had written:"The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defense suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. st. 2 c. 2, and its indeed, a public allowance under due restrictions, of the natural rights of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression."

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I have not found that Blackstone or Tucker's quoted any 2A is not unlimited.
That's seem to be only in Heller.