No. of Recommendations: 1
Al Similarly, we might ask what the Framers/Ratifiers in 1868 might have thought the "right to bear arms" covered (or didn't). If we look specifically at what they allowed in 1791 and 1868, you might conclude that their intent was that the "right" included all but the lightest regulation (you could have virtually any weapon that would be carried as a personal firearm, but not cannon). If you look generally at what they allowed, you might conclude that the states regulated as heavily as necessary to protect the public order (virtually all the country was rural, so widespread firearm ownership was permissible and encouraged, but in urban areas it was more heavily regulated). Or do you take the approach that what the Framers/Ratifiers meant was that civilians could have guns with a very low rate of fire (say, that of an 1860's-era repeating rifle) but not something with a higher rate of fire (like Gatling guns that were not owned by civilians) in that era?
That's why I think the Court may have some difficulties with the Bruen standard - because how you frame the "historical" question determines what answer you get, and originalism offers no "neutral" rules on which way to frame the historical question is correct.
Thanks. Thomas seemed to have a "specific" intent when he framed the test. He disregarded any laws in the territories, and any laws that he saw as one-offs, or only a few, and laws on storage for a variety of reasons, and the types of weapons seemed to have no limit. You could have that canon or a Gatling gun. Anything getting in the way of you owning that gun could be a burden on your basic right. Scalia seemed much more reasonable and didn't want to upset the apple cart on dangerous and unusual weapons in Heller. Thomas seems want to minimize and narrow any restrictions found. Seems little room left for a functioning society.
