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.
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).
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.
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.
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.
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.
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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