One Unconstitutional Law Implicates Many Gun Control Regulations :: 06/27/2022

Laws can be interpreted many ways. We seek guidance from the court to know what is legal and what is not. The US Supreme Court has largely ignored the right to bear arms compared to the number of decisions the court has rendered in other areas. We don’t have enough decisions to draw a clear map of where our rights begin and end. The court recently issued an opinion on the right to bear arms in public. This case redefined the legal landscape and gave us a few rules to go by. Let’s look at the unanswered questions to see if we may draw further conclusions.

The recent ruling said that states may require carry permits, but they must issue them to ordinary people who are not criminals. Ordinary people must be able to carry a personal firearm in ordinary places where people congregate. Licensing cannot be excessively delayed or expensive.

Now we want to apply this ruling to other situations. We first look to the text of the Bill of Rights. Based on the text, are the actions in question covered by the Second Amendment. When in doubt as to the scope or applicability, we then consider the history of use when the Bill of Rights was ratified. We are to draw analogies from that period to the present day. There are no tiered level of examination or scrutiny. If the law in question materially limits the right to bear arms then, with remarkably few exceptions, the law is an infringement on the right to bear arms and unconstitutional.

• The court said that the second amendment is a full right. We do not yet know how to treat the victims who were unjustly prosecuted under these unconstitutional laws. A handful of Democrat-controlled states charged about a hundred thousand people with the non-violent crime of carrying a firearm without a permit that the state refused to issue to them. Most of these victims were black and brown young men. How do we make the victims whole again after the state took their fortunes and years of their lives in prison?
• If the right to bear arms in public is a full right, then why do I need to seek and receive dozens of permits to exercise that right as I travel from state to state? We did not have to do so in the 1790s.
• There was no general prohibition outlawing the bearing of arms in churches when the Constitution and the Bill of Rights were ratified. State laws that limit the bearing of arms in churches are an infringement and unconstitutional.
• There were no widespread and broadly applied state laws restricting the right to bear arms in taverns and inns. State laws that limit the right to bear arms as we travel and eat today are an infringement on the right to bear arms and are unconstitutional.
• There were no widespread and broadly enforced laws in the 1790s requiring that firearms be stored in an inoperable condition. Those laws today are an infringement on the right to keep and bear arms.
• There were no general prohibitions restricting the right to bear arms on ferries, barges, and stages, the cutting-edge of mass transportation at the time. State laws restricting law-abiding citizens from carrying on a subway, bus, ferry, or train today are an unconstitutional infringement on our rights.
• There were no general prohibitions against carrying arms at a horserace or at a public amphitheater. Those were the stadiums of their day. Today, state laws restricting law-abiding citizens from carrying their personal firearms at a stadium that receives public funds are an infringement and unconstitutional.
• In the 1790s, there were no laws outlawing the bearing of arms in hospitals. Denying a doctor, nurse, technician, staff-member, or a visitor their right of self-defense is an infringement on the right to bear arms.
• The laws of the 1790s did not create a two-tiered system of rights where politicians, judges, and other government officials were allowed to carry a firearm in public but ordinary citizens were disarmed. The exceptions may be inside a prison or jail, a courtroom, or inside the statehouse when the legislature is in session. Disarming citizens who are out in public, while politicians are free to go armed, is an infringement of the right to bear arms.
• Citizens of the 1790s did not face broad legal prohibitions from bearing personal firearms that met or exceeded the performance of arms born by the military forces or law enforcement agents of that day. We must either restrict our military and police to use only the man-portable weapons we allow civilians to carry today, or we must allow civilians to carry weapons used by our military and police. Anything else is an infringement.
• According to this Supreme Court, the right to keep and bear arms is an enumerated right and not a lessor right than any other. That means our right to bear arms cannot be removed without due process in a court of law. Gun owners are assumed innocent until proven guilty and have the right to face their accuser. The accused has the right to be represented by a qualified lawyer. If necessary, the state must promptly provide that lawyer in the form of a public defender. Like any other right, false accusations and malicious prosecution can result in a suit for damages.
• A sheriff of the 1790s knew the criminals in his county. Today, a policeman can check my license,  my vehicle registration, and my legal status in seconds from the roadside. We can process an ID and credit card from around the world equally quickly for a few cents. That means it should take no more than a minute to perform a background check and it should cost pennies at most. Once we have done one background check to own a firearm, then repeated background checks when we want to buy ammunition, secure a carry permit, or to buy another firearm, are an abuse of the right to bear arms.

Look at this cursory list. Now consider how these rights must be defended in dozens of states. I am clearly not a lawyer but there is still a lot of work to do in the courts. Also, I am fallible. There may have been widely enforced firearms laws from the 1790s that I missed. Please share new sources of historical information with me as you find them.

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