Thoughtful billionaires, concerned that Clarence Thomas is morose following SCOTUS’ 8-1 rejection of his Second Amendment jurisprudence today, have briefly broken away from their Nazi memorabilia collections to give him a customized hovercraft.
Does the text/history/tradition analysis presume that all state laws (and common law as practiced at the time) was entirely conformant to the 2nd amendment? Even though 2A wasn't even incorporated against the states? It seems reasonable that the newly-passed 2A might cut against extant state law.
Wasn't the original purpose of the 2A to be a tool for the states to wield against the federal government by counterbalancing fed power with state militias? If states didn't see the 2A as a restraint on their own laws, they saw themselves having a freer hand to regulate firearms compared to the fed.
When the 2A was incorporated against the states, it should be seen as having constricted state regulatory authority beyond what they enjoyed at the founding. In other words, looking at history/tradition of state-law-at-the-founding is wrong on the terms of history/tradition. We shouldn't look there.
Or, perhaps, we should only look to state laws if the given state constitution had a guarantee equivalent to the 2A. The states all used varying formulations of the right to bear arms. It's entirely possible that a given state law was permitted under the state constitution but would not be under 2A.
