Roberts: wait Bruen says WHAT? Fuck fuck fuck I gotta stop voting on shit when I’m drunk. Okay. You can do this Johnny. You went to Harvard. Let’s parse our way out of this mess. Fuckin’ Thomas, I should have known better.
Gonna get back on my hobby horse to remind folks the point of the second amendment was to prevent the federal government disarming slave patrols in the slave states, not to prevent states regulating private firearms (which they did)
Yeah, if you want to tell a story of individual gun rights against the states, it HAS to be a Fourteenth Amendment story like the one Amar tells
You just will not find anything like that in 1791
Yep. Like folks are used to thinking of the bill of rights as imposing obligations on the states because that's the post-14th norm, but when they were passed that's explicitly not what they were for, hence why the 14th needed to do it. Which is to say: the 2A was /not/ about private firearms
It literally was a states rights thing. And why might the states be super dooper antsy about disarming the militias? Because the militias in the south were mostly slave patrols, and they were terrified the feds would disarm them and then (not implausibly) slaves would revolt and promptly kill them
It's not even particularly covert in the ratification debates. The whole thing is various angsts like "what if the government orders the militia to another state and then there's a slave revolt and we all get killed". Like ... that's the context of 2A.
It's also why if you back to the (original) founding era and ask "what did 2A /do/" the answer is ~ nothing. Because the firearms regulations were by the states, which until the 14th, weren't themselves regulated by 2A, hence there just /weren't/ federal restrictions. Because it was for states.
It's not that there weren't private firearms restrictions. It's that there weren't /federal/ firearms restrictions. And it's not that the framers intended to prevent private firearms restrictions, because 2A didn't say states couldn't, and they did!
All this is true about slave patrols and I’ll add: there was also a legitimate concern about a US military response against invasion. Because wasn’t a standing army then, and state militias made up the army in case of war.
Waitaminnut (not my area but) is there an argument that _that_ what "well regulated" actually means in the 2A? Like, it's an acknowledgment (maybe even a requirement) that States _must_ have gun/militia regulations, or else the federal government _can_ step in? 🤯
Not really. "Well-regulated" here was meant in the sense of "regular" (i.e. organized, armed, disciplined, and generally suitable for service) rather than in the sense of "subject to regulation"
(IOW I don't read it as providing a backstop federal regulation provision, and I think the purpose of the amendment was pretty much the opposite: It's there to alleviate fears that the feds would creatively disarm the militias, not to give circumstances where the feds can impose obligations on them)
Right, but surplusage blah blah blah, it may be an over-reading to say it _requires_ state regulation, but it seems like the founders were not talking about just random yahoos with their individual guns. So it’s about state organization of the militias, right?
That's interesting, as my more modern reading was the incorporation of the UCMJ or state-level equivalents and regulations as tools of leadership/channels of derivative Art II authority is what I would think characterizes the militia, esp. in an era where miltia beefed up an anemic regular army.
Like, a state should be able to say “in order to possess firearm of class X, you must accomplish Y hours of initial draining, and Z hours of continued training each year”
Yeah, there's a fundamental illogic to Bruen that way
And of course if you adduce state gun laws from 1791 the response is "yeah but the Second Amendment didn't even apply to that!"
Which... would be a good argument in other contexts! Free speech, e.g. But it's weird here
It's like going back to the founding era and noting there were no federal burglary statutes for private property and then coming to the conclusion the founders must have thought burglary was fine. No! The lack of federal law doesn't preclude the state law at the time.
You can also see at the convention there's effort to talk around the subject rather than call it what it is (given the heat of the topic at the time). For example: the militia being of particular concern to the Southern states because of "their situation" which "do not apply to the Northern States"
It's not a whole book but Akhil Amar's The Bill of Rights: Creation and Reconstruction, plus the relevant section in America's Constitution: A Biography (also Amar lol) is a good starting point
