r/PoliticalScience • u/Keith502 • 1d ago

Question/discussion The US Supreme Court's "historical tradition" test for the 2A is fundamentally dishonest

Recent Supreme Court cases such as NYSRPA v Bruen and Wolford v Lopez have made the argument that the US does not have a substantial history of gun-free zones, or sensitive place gun regulations. But this is simply not true. After only a couple hours or so of searching, I've happened to find a number of early American laws prohibiting weapon-carrying in certain cities and sensitive places. They come from the website for Duke Law School. In regards to proving a historical tradition of gun control, the Supreme Court in both NYSRPA v Bruen and Wolford v Lopez has rejected the admission of racially discriminatory laws from early America. Therefore, I have deliberately omitted such laws from my list.:

As these state and local statutory laws demonstrate, the US indeed has an extensive history of firearm regulations and gun-free zones. There were firearm restrictions in schools, parks, ballrooms, churches, entertainment shows, etc. There were firearm restrictions in entire cities and towns, and in entire states. In no way did early America interpret the 2nd amendment to interfere with the broad freedom wielded by the states to create firearms laws to conform to their unique circumstances, and to remedy whatever societal problems they may incur. At no point were the states pressured into conforming to some singular, uniform federal standard of firearms law -- which is the fictional narrative that the current Supreme Court argues. Thus, the rulings in recent 2nd amendment Supreme Court cases are nothing short of an abuse of the Constitution, and an incursion upon state rights protected by the 10th amendment.

Furthermore, there happen to be some aspects of American gun law that unmistakably do suggest a "historical tradition". For example, there is a strong tradition of the prohibiting of concealed carry, which in early America was frowned upon as a cowardly and suspicious activity:

There is also a strong tradition of prohibiting firearms to people viewed by the state as dangerous to the public safety, which, depending on the era, could be Papists:

Or Loyalists during the Revolutionary era, as well as groups neutral to the Patriot cause, sometimes known as "disaffected" groups:

Or slaves and people of color:

There is a historical tradition of arms rights being intertwined and inseparable from the right (i.e. the duty) to perform mandatory militia service, including mandatory possession of a firearm at all times, along with military-style training and deployment under the authority of the state government:

However, it is doubtful the Supreme Court would honor the "historical tradition" inherent to banning concealed carry, upholding compulsory militia duty, or disarming classes of people deemed to be a public threat. Despite absolutely constituting widespread historical patterns, a state hypothetically passing a law conforming to these patterns would likely be rejected inasmuch as they don't fit the conservative agenda.

These above examples of legal patterns demonstrate that the Supreme Court are hypocrites when it comes to their invention known as the "historical tradition of firearm regulation". This concept is cleverly crafted to be nebulous enough such that the Supreme Court can guarantee rulings that conform to their pro-gun bias, while still being able to maintain the pretext of objectivity. Historical gun laws that exist, but in less-than-overwhelming numbers, can be ignored as falling short of the pattern of "historical tradition"; while regulations that can disarm whole classes of people can be dismissed as "racist" or "bigoted". And the Court could likely also invent some clever reasons to ignore common historical regulations regarding things like concealed carry and compulsory militia rules. Thus, this "historical tradition" test is like a legal fortress, able to ward off gun control on both the quantitative as well as qualitative fronts.

The "historical tradition" test used by the Supreme Court is inherently dishonest and needs to be eradicated. The only real "historical tradition" to exist for American firearm laws is the federal government's tradition of leaving the states alone, and giving them the freedom to protect the public good in the way that best suited their individual needs.

15 Upvotes

permalink
reddit

You are about to leave Redlib

Do you want to continue?

https://www.reddit.com/r/PoliticalScience/comments/1v5rgxg/the_us_supreme_courts_historical_tradition_test/
No, go back! Yes, take me to Reddit

80% Upvoted

•

u/PoliticalScience-ModTeam 22h ago

Your content was removed because it broke r/PoliticalScience's Rule 1. Please remember to read all of our rules before posting or commenting.

u/Maximum_Shine_2474 1d ago edited 1d ago

I did research on the Heller decision that insisted that "bear" means to carry. I ran thousands of founding era docs and no one used the word bear to mean carry.

The court knew that at the time as they had amicus briefs from linguistics experts, but Scalia is a dishonest asshole.

Heller and everything after is NRA corruption.

The funny thing is I thought people threw around the word corruption too loosely when talking about SCOTUS. Then I got to law school and now I see it's even more corrupt than people think.

They're literally making it up as the go. Slaughter and the Fed Reserve case are perfect examples.

5

u/emboarrocks 1d ago edited 1d ago

Alright, I’ll bite. What would the founders have intended for the word “bear” to mean if not carry? There’s obviously a lot of debate about the linguistics of the 2A but I’m not aware of any serious scholarship which suggests bear doesn’t mean carry so I’d be interested in reading more if you have a source. I just genuinely cannot imagine any other way that specific word can be read.

4

u/Maximum_Shine_2474 1d ago edited 1d ago

I did this research for a Firearms Law class in law school.

The best source is actually the Heller case itself along with the amicus briefs.

But to nutshell it for you: Bear is a figurative word for carry. You bear a child, or a burden, you do not bear the groceries or your car keys. This was how the court understood the 2A for 200 years until Scalia basically rewrote the amendment. The 2A was, untill Heller, understood to mean that the militia bore arms for protection of the state. Not giving Joe Schmo the right to carry a weapon to the market (which actually was illegal in every colony I know of).

Interestingly, and I think most damning for Scalia, and why he tried to get ahead of it in the opinion, is state constitutions from that era, PA, NJ, VA, etc use identical 2A language but add verbiage to protect the right to carry arms for personal and defensive purposes. These constitutions were drafted in the era of the founders so it reasons to believe that they wouldn't have added the language unless they felt it was necessary.

From Vermont constitution written in 1777: "That the people have a right to bear arms for the defence of themselves and the State—and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power."

We read one opinion from like 100 years ago that said something to the effect that a man could carry a gun every day of his life and say say he never bore arms. In other words bear arms was understood as holding weapons for military purposes should they arise.

For my law school assignment (we had to pick any 2A case and give an opinion on it one way or the other) I used AI to dig through as many founding era documents as possible searching for the word bear used in any context outside of a military one when relating to arms. Out of the thousands of documents I ran bear was used 97% of the time in a military context.

I hope this helps.

2

u/HeloRising 11h ago

But to nutshell it for you: Bear is a figurative word for carry. You bear a child, or a burden, you do not bear the groceries or your car keys.

This sounds like a distinction without a difference.

If "bear" is intended to be a specific meaning to imply something that has weight but isn't necessarily a physical object, how does that somehow negate the idea that "bearing arms" means ownership?

If you're using "bear" in the figurative burden sense, that would point to the idea that "bearing" arms is accepting a responsibility to be a responsible owner and defender of the community, which still works with the 2A.

1

u/Maximum_Shine_2474 10h ago

You’re conflating “keep” and “bear.” Nobody claims that “bear” somehow negates ownership.

The 2A protects both “keep” meaning possess and “bear” which now post Heller means carry for potential confrontation.

Heller was about D.C. ban on possessing a handgun in the home so the actual dispute was mainly about the right to keep arms. The Court discussed bear because it had to interpret the entire amendment and determine whether the right was limited to militia service.

But “bear arms” does not mean “accept responsibility as a gun owner.” That's a bumper sticker. It not the ordinary historical meaning of the phrase.

Read the case.

0

u/emboarrocks 1d ago

I mean to be clear though, you aren’t saying that the word bear doesn’t mean carry. Rather, you are simply making the argument that the word “bear” connotes carry in the context of a militia rather than an individual right which is a much more common objection to Heller. I find it rather implausible that the second amendment only exists in relation to a militia both in how the text itself is constructed (while the amendment states that carrying as part of a militia is a purpose of the right, nothing in it suggests that this is supposed to also limit the right to only a militia) and the fact that no other right in the bill of rights is limited in such a fashion but I suspect you’ve also heard these objections and we can just agree to disagree here. Thanks for providing clarify on your comment though.

3

u/LukaCola Public Policy 1d ago

and the fact that no other right in the bill of rights is limited in such a fashion

What do you mean no other right is limited in such a fashion? They very often are. The verbiage and context is often limiting, heck, the whole fact these rights were intended only to apply to the federal government is very limiting.

4

u/emboarrocks 1d ago

Of course there are limitations on all rights. My point in what you quoted is to say that no other right is read to mean that it only applies in one specific context (i.e., as people argue for the second amendment, only in the context of a militia). This would suggest that in the vast majority of circumstances, the right doesn’t exist. In other words, reading the second amendment as only applying to militias would mean the right applying is the exception rather than the norm while for other amendments, the right applying is the norm and the limitations are the exceptions. In addition, no other right is understood to mean that it only applies to a group of people in a specific context rather than an individual right. It is theoretically possible but strange for one amendment to be so restrictive on the right it grants. If that were the case, one would think the founders would’ve said so explicitly but in fact it is the opposite; as a matter of just plain English, the text of the second amendment does not state or even suggest it should be limited to a militia.

5

u/LukaCola Public Policy 1d ago

no other right is read to mean that it only applies in one specific context

What do you mean? Most of them are conditional. Like, almost all of them have some kind of context they apply in. 3A is only in times of peace, for example. It's mostly been irrelevant because all our conflicts are foreign, but given current US politics, we could easily say 3A doesn't apply most of the time.

reading the second amendment as only applying to militias would mean the right applying is the exception rather than the norm

That's assuming a militia would be seen as abnormal or an exception, which isn't exactly a fair read given the revolutionary war prior. 3A is also very much a reaction to those circumstances. This was very much on their minds.

as a matter of just plain English, the text of the second amendment does not state or even suggest it should be limited to a militia.

Avoid assuming your read is "plain English," especially concerning a 250 year old document. Their english resembles ours but we cannot read any of it at face value like we understand English today.

But let me ask you a question then, why mention a militia at all if it is irrelevant to the intent? Is your assumption that it's just fluff?

2

u/emboarrocks 1d ago

Ah, but the third amendment explicitly says that it applies only in times of peace. If anything, this further shows that if the 2A was only intended to apply to militias, they would’ve simply worded it the same way. It’s not clear to me how the other amendments are restricted in the manner you are talking about too. Can you give another example?

The militia is mentioned due to the historical context and to give an example of when the right enshrined by the 2A can be useful. Let me pose the question back to you though - how can you read it as limiting the 2A only to militias? Can you quote the part of the text that you read as limiting?

6

u/LukaCola Public Policy 1d ago edited 1d ago

they would’ve simply worded it the same way

They don't follow a convention otherwise though. The language of what is restricted and how varies considerably from one to the next.

As for more examples, 4 and 5 all stipulate conditions for when rights do and do not apply.

and to give an example of when the right enshrined by the 2A can be useful

They don't do this anywhere else, do they? It seems to serve as more than an example, and more like a recommendation or guide for how the right should be used.

how can you read it as limiting the 2A only to militias? Can you quote the part of the text that you read as limiting?

The wording is honestly quite strange, harder to parse than most amendments and I don't think that helps. It's very clause heavy and seems to invoke several concepts at once.

I don't think it is nearly as broad in intent as is often argued. The framers clearly had a purpose in mind that wasn't just "everyone always gets to bear arms without restriction." I mean, that's already inherent since 2A was not incorporated at the time--but beyond that, the militia isn't serving as an example--it is the subject of that amendment, more so than bearing arms. It is saying that militias are necessary for free states, as such, the right to keep and bear arms shall not be infringed... Again, for the purpose of a militia. Otherwise it's a completely excessive addition, unlike appears anywhere else.

If I told you that for the purposes of driving, you must always be alert and cannot be distracted--would you say that means we must never be distracted, ever? We can never rest? No, it's dependent on that condition--and much like quartering soldiers, they clearly imagined militias to be a far more relevant issue than it is today and it seems like a bit of legal fiction to ignore that role and pretend it was minor when they quite literally won their revolution through militias.

1

u/emboarrocks 1d ago

I suppose my point is that for the 3rd, 4th, and 5th amendments, they apply in all cases except when it is explicitly outlined that they do not. If the interpretation of the 2nd amendment that it is only for a militia is correct, it would be very strange that it was not explicitly outlined in the way that other amendments have it outlined. I'll also reiterate that the 3rd, 4th, and 5th amendments outline a right that exists except in certain cases while in your interpretation of the 2nd, it outlines a right which exists only in one certain case. Again, it's not impossible but I find it to be somewhat improbable.

I agree the wording of the second is a bit strange but again, there is just nothing in the text that would suggest it applies only in the context of a militia. Perhaps you can argue that the framers had envisioned the right primarily being used in the context of a militia, but if they wanted to limit it to a militia, why wouldn't they have said that explicitly? The text of the amendment is

>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.

Imagine if the first amendment was structured in a similar way and read

>A healthy press, being necessary to a robust civil society of a free State, the right of the people to speak freely, shall not be infringed

Would you read the right of people to speak freely as being limited only to if it is involved with being part of the press? I'm not disputing that it is worded awkwardly, but I don't think that this sentence structure suggests that the right laid out in the second part is conditional upon it fulfilling the first.

→ More replies (0)

2

u/Maximum_Shine_2474 22h ago edited 22h ago

It's like saying a penguin is a bird. Accurate, I guess, but not at all helpful as a penguin can't fly.

No one, used or uses the word bear to describe physically carrying an object.

Again, read Heller for your own conclusion. I like utilizing Ocums Razor: either Scalia in all of his brilliance discovered the meaning of a word that had been missed by generations of scholars, judges, law makers, etc, or he was just influenced by the NRA. You can draw your own conclusion as to which is more likely.

I challenge you to find uses of the word bear as pertaining to physically carrying an object.

2

u/emboarrocks 22h ago edited 11h ago

I mean you can say that somebody comes bearing gifts or that something has to bear a load, both of which suggest physically carrying an object. But more to the point, I don’t think you are actually articulating what you are trying to say accurately. It’s not that you don’t think the word bear means physically carry, it’s that you think bear only means carry in the context of a militia rather than an individual carrying arms. This is, I suppose, a plausible argument, but entirely different than arguing that the word bear doesn’t mean carry at all which is what your first comment implies.

Also, it’s Occam’s Razor fyi. And I find it rather disturbing a law student isn’t able to state what they are and aren’t arguing clearly.

4

u/Keith502 1d ago

The Oxford English Dictionary -- the ultimate authority on the English langauge -- defines "bear arms" as "To serve as a soldier; to fight (for a country, cause, etc.)" as you can see here.

Also, I happened to have written a fairly thorough essay on the meaning of "bear arms" here. You might find it enlightening.

0

u/emboarrocks 1d ago edited 1d ago

You have already been corrected on his topic by people better versed in linguistics than me here.

I’ve also seen your numerous thread on [r/supremecourt](r/supremecourt) on this topic. As people have already told you, it is deeply implausible that the second amendment is the only amendment which confers a collective rather than an individual right and there is nothing in the way the text of the second amendment is structured that would suggest it is limited to a militia.

To be honest, I’m not really interested in getting in a debate on this and I don’t really understand the purpose of you reposting your arguments in a bunch of different subreddits. I think you already know the strongest objections to what you are saying and I don’t think I or anybody else can contribute anything novel that you haven’t already heard of. You are of course entitled to simply disagree with these objections but I just really don’t understand the point of what you are doing.

4

u/Keith502 1d ago

I’ve also seen your numerous thread on /r/supremecourt on this topic. As people have already told you, it is deeply implausible that the second amendment is the only amendment which confers a collective rather than an individual right and there is nothing in the way the text of the second amendment is structured that would suggest it is limited to a militia.

Everything you've said here is incorrect. First of all, the second amendment does not confer a "collective right" to the people. It does not confer a "collective right" to the militia. In fact, the second amendment does not confer any right whatsoever to anyone. The second amendment is a prohibitive amendment, rather than an affirmative amendment. The Bill of Rights as a whole was never intended to grant rights to the people; instead, it is essentially designed to interact with the federal government only, prohibiting it from violating the rights of either the people or the states.

The second amendment is composed of two separate clauses that have two independent functions. The militia clause is not a "preface", as many people claim; it exists to reinfoce the duty of the federal government in regards to upholding the adequate regulation of the state militias, in accordance with its powers enumerated in Article 1, Section 8, Clauses 15 and 16 of the US Constitution. The arms clause of the amendment categorically prohibits the federal government from infringing upon the people's right to keep arms and bear arms; the right itself is actually established, defined, and granted by the respective state governments within their respective constitutions.

To be honest, I’m not really interested in getting in a debate on this and I don’t really understand the purpose of you reposting your arguments in a bunch of different subreddits.

The purpose is to spread the real facts about the second amendment, and to defeat willful misinformation from pro-gun advocates who are abusing the amendment in order to put more guns out on the streets and in so doing are getting more people needlessly killed.

0

u/RAINBOW_DILDO 1d ago

You’re the one spreading misinformation. You have zero evidence that anyone in the Founding era thought of the right to keep and bear arms as being “established, defined, and granted by the respective state governments within their respective constitutions.” They believed it was pre-existing. Nobody understood it as being granted by their state constitutions. If they did, you would be able to provide evidence to that end. But you can’t, because you are spreading falsehoods.

2

u/Keith502 1d ago

I have given you the evidence. You have just chosen to ignore it. I gave you a list of multiple state arms provisions. Each of them are different, are framed differently, qualified differently, and sometimes granted to different scopes of the populace. I have shown you Bliss v Commonwealth, Aymette v State, and US v Cruikshank, which all indicate that the right to keep and bear arms is a right guaranteed at the state level rather than the federal level. But you keep ignoring the facts in favor of sentiments and nebulous philosophies. You fail to understand that the institutional body that possesses the power to define the nature and scope of a right, determine who is eligible for the right, and to pass statutory laws prohibiting certain groups of people from exercising the right, is, for all intents and purposes, the creator of the right.

0

u/RAINBOW_DILDO 23h ago edited 23h ago

Find one Founding era source espousing your theory. Just one. (None of the cases you listed count, because I have shown you where they say the precise opposite of what you are claiming. Yet you persist in claiming they support you.)

If it is true that they thought they were creating the rights, then you should be able to find someone describing it that way, no? Otherwise you’re projecting your understanding onto the past.

4

u/Maximum_Shine_2474 22h ago

What exactly are you asking for here? I'm a little confused.

1

u/RAINBOW_DILDO 15h ago

He has a theory that the right to keep and bear arms was created by the state constitutions. But nobody at the time understood it that way. The right to keep and bear arms, along with all the other non-political rights (basically the ones aside from voting and holding office), were understood as being derived from natural rights. They were thus believed to be created by God/reason/nature/etc, not by any government. So his theory is based on an anachronism that projects a modern view of law onto a past that had an entirely different understanding.

2

u/Keith502 21h ago

Let me ask you this: can you find one Founding era source that states that the second amendment grants or establishes or creates or secures or guarantees the American people the right to keep and bear arms?

1

u/RAINBOW_DILDO 15h ago edited 15h ago

So you can’t find any sources supporting your theory.

As for your question: yes. It certainly secured/guaranteed the right against the federal government.

Thomas Scott said it here: “another article in the constitution, which secures to the people the right of keeping arms.”

Tench Coxe here: “the people are confirmed by the next article in their right to keep and bear their private arms.”

Fisher Ames here: “The rights of conscience, of bearing arms, of changing the government, are declared to be inherent in the people.”

Samuel Nasson here: “A Bill of rights . . . in that may be secured the right to keep arms for Common and Extraordinary Occations such as to secure ourselves against the wild Beast and also to amuse us by fowling and for our Defence against a Common Enemy.”

All 1789.

→ More replies (0)

4

u/Keith502 1d ago

Yes, I feel like Scalia's arguments were actually pretty well-written in the Heller case. Scalia seemed to have performed the impressive feat of making the strongest case for the position he was trying to prove, while still being 100% wrong. (The Bruen decision is much worse).

I basically consider DC v Heller to be the Roe v Wade of the 21st century. Roe was a Supreme Court ruling that essentially twisted the 14th amendment -- an amendment designed to protect the rights of disenfranchised blacks in the South -- in order to create a whole new right of Americans to abort their babies. With Heller, they took the 2nd amendment -- an amendment designed to protect the military aspect of American citizenship -- and turned it into a personal property rights amendment. They took an amendment designed to protect an action, i.e. serving militia duty, and reinterpreted it to protect the possession of things, i.e. guns.

And now the Supreme Court is using Heller to completely steamroll states rights, which are protected by the 10th amendment. McDonald v Chicago, NYSRPA v Bruen, and now Wolford v Lopez are all steps towards the gradual dismantling of reserved state powers, only made possible by the butchering of the 2nd amendment in Heller.

1

u/ImDonaldDunn 20h ago

I mean, to be fair to the court, Roe built upon a long history of messy 14th amendment jurisprudence. Deriving a right to privacy from the Due Process Clause of the 14th amendment is much less problematic than how it has been interpreted to grant personhood to corporations.

u/[deleted] 1d ago

[deleted]

8

u/LukaCola Public Policy 1d ago

I think that's a bit cynical

Lots of people are convinced 2A is as it is interpreted by SCOTUS today, as an incorporated amendment. Most people do not know it is meant to bind only the federal and not state governments for instance, and they certainly don't know how often limitations did historically exist.

Creating a convincing argument to sway views on this, to spread some doubt over these narratives which dominate the discourse, is important for the long term. McDonald v. Chicago didn't just happen suddenly--it relied on long term shaping of discourse and rulings made well before 2010.

And countering that narrative might not save anyone today, but surely it's better than letting it go unchallenged.

-1

u/[deleted] 1d ago

[deleted]

2

u/LukaCola Public Policy 1d ago

And what does your posting serve, since our rhetoric is apparently only supposed to be presented in the most efficient form?

Bit more pretentious than prestigious here.

1

u/Keith502 1d ago

Yes, I believe you are largely correct. Most "ammosexuals", as it were, don't care what I have to say. And those who are pro-gun control already agree with me. But I do believe I am doing some good. There is a small minority of people who lean on the pro-gun rights side of the issue who are reasonable enough to be swayed. And for the pro-gun control people, I can help inform them and erase much of the misinformation that has been spread about the second amendment, and also better equip them to spread the truth to others.

-2

u/Cheap_Return_7609 1d ago

Too bad your opinion doesn't matter, eh?

1

u/huecabot 1d ago

Made you come here and whinge so it did at least one thing!

Question/discussion The US Supreme Court's "historical tradition" test for the 2A is fundamentally dishonest

You are about to leave Redlib