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(15,278 posts)
Wed Mar 29, 2023, 06:58 AM Mar 2023

Second Amendment Right to Bear Arms - And how the courts parsed and diluted it over time


CONSTITUTION ANNOTATED: Congress.gov: Library of Congress

'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.'

'For much of its early history, the Second Amendment went largely unscrutinized by the Supreme Court. The few nineteenth century cases implicating the Second Amendment established for a time that the Amendment was a bar to federal, but not state, government action,1 and the Court’s only significant Second Amendment decision in the twentieth century seemed to suggest that the right protected under the Amendment was tied only to state militia use of certain types of firearms.'

Then came Heller (my words):
'By the beginning of the twenty-first century, many of the U.S. Courts of Appeals that considered the matter concluded that the Second Amendment protected a collective right tied to militia or military use of firearms,4 while some courts and commentators maintained that the Amendment enshrined an individual right to possess firearms outside the context of militia or military activity.5 In the 2008 case District of Columbia v. Heller,6 the Supreme Court held, after a lengthy historical analysis, that the Second Amendment protects an individual right to possess firearms for historically lawful purposes, including self-defense in the home.7

In the 2022 case New York State Rifle & Pistol Association v. Bruen,13 the Court considered the constitutionality under the Second Amendment of a portion of New York’s firearms licensing scheme that restricts the carrying of certain licensed firearms outside the home. In a 6-3 decision, the Court struck down New York’s requirement that an applicant for an unrestricted license to carry a handgun outside the home for self-defense must establish proper cause, ruling that the requirement is at odds with the Second Amendment.14 In doing so, the Court recognized that the Second Amendment protects a right that extends beyond the home15 and also clarified that the proper test for evaluating Second Amendment challenges to firearms laws is an approach rooted in text and the historical tradition of firearms regulation, rejecting a two-step methodology employed by many of the lower courts.16'
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Second Amendment Right to Bear Arms - And how the courts parsed and diluted it over time (Original Post) Joinfortmill Mar 2023 OP
Ignoring actual history in the process JT45242 Mar 2023 #1
None of the rights in the BOR were held to apply against state/local laws back then. sl8 Mar 2023 #2
K&R 2naSalit Mar 2023 #3


(2,517 posts)
1. Ignoring actual history in the process
Wed Mar 29, 2023, 07:05 AM
Mar 2023

Even in the old west, reality not movies, you checked in your guns in the city.

Plus we'll ignore the logical fallacy that then you can open carry any weapon that was available at the time of the bill of rights in the 1790s....hard to do a mass shooting with a black powder pistol or musket. You might be able to use a black powder long rifle to shoot someone at a snipers distance of the day, but you wouldn't be killing dozens in seconds.


(15,423 posts)
2. None of the rights in the BOR were held to apply against state/local laws back then.
Wed Mar 29, 2023, 07:25 AM
Mar 2023

The rights in the Bill of Rights didn't begin to be incorporated (applicable against states) until the 20th century. That's part of the reason why we still had some state churches in the 19th century.


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