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3rd Circuit on 18-20 yr olds, and 2nd vs. 14th Amendment
Lara v. Commissioner struck down the Pennsylvania ban on carrying by those age 18-21; the Court recently denied a motion for rehearing en banc. The dissent from the denial raises at length the question of whether a court should look primarily to the timeframe of the Second Amendment or that of the Fourteenth Amendment. Bruen dodged the issue by noting that the understanding of the right to arms, at least that relevant to the New York statute under consideration, was the same at both periods.
The importance of the choice is that around the time of the 14th (1866-68) *some* gun controls had been enacted, whereas at the time of the 2nd (1789-91) virtually none had been (even limits on concealed carry were unknown). Although this in turn begs the question: isn't something more than one or two states, or a handful of city ordinances, required to support an argument that *the entire country* accepted the form of restriction being documented? You can hardly take the actions of a few city councils as proof of how an entire generation of Americans thought.
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Figured a way around by clicking the preview button first then adding my comment.
"by the time of the 14th . . some [arms] controls had been enacted" and were squarely aimed at specific races or classes, which should render them unusable as analogues for the purposes of Bruen analysis.
That argument is developing, but in my opinion is "not there yet."
And those arms controls were allowed BECAUSE the SC decided the BoR did not apply to the states, which is wrong on a couple of counts but allowed the states to violate our God endowed Rights.
The most obvious book on your "bookshelf graphic" on your blog's front page is from 1999, "The Bill of Rights: Creation and Reconstruction" by Yale law professor Akhil Reed Amar. In it, he extracted key quotes from the official congressional records of debate from 1865 to 1867 proving that the authors and supporters of the 14th intended to protect a black right to arms, along with all other civil rights. It was supposed to happen via the Privileges and Immunities clause of the 14th.
Using his bibliography I went to the library of congress online where it's now possible to find the same quotes. They're in an archive here:
We know what actually happened: an outright rebellion against the 14th swept the nation. In the Slaughterhouse Cases of 1873 the US Supreme Court joined that rebellion and in US v Cruikshank (1875 case, final decision in 1876) the Supreme Court took a *leadership* role in gutting the 14th, banning all possible federal civil rights protection and basically legalizing lynching. To see a period eyewitness to what that caused, read this:
https://www.gutenberg.org/files/14975/14975-h/14975-h.htm
Notice how she describes two extreme civil rights violations with the note that it's "legal(?)" with the question mark in there. She didn't understand the legal mechanism behind the catastrophy she was documenting.
We do now. Today there's a US-DOJ Office of Civil Rights Division that investigates state and local governments for all kinds of issues. It exists only because the US Supreme Court started to overturn Cruikshank in 1954 (Brown v Board of Education).
With the *entirety* of US society in open rebellion against the 14th, AND WE CAN PROVE THAT!, we can't rely on post-14th laws to understand the 14th. It would be like trying to understand the Bruen decision from the various state "Bruen rebellion" state laws in California, New York, etc.
Madness.
As an aside, when Scalia threw in two positive references to the 2008 book "The Day Freedom Died" by Charles Lane into the Heller decision, that was his signal that Amar was right and the Supreme Court catastrophically screwed up from 1873 forward when they destroyed the 14th. And then *Ginsburg* went to the same place when she praised the civil rights protection efforts by the framers of the 14th, in the opening to the last decision she wrote, Timbs v Indiana.
The 14th is irrelevant when it comes to 2nd amendment laws passed by states. Barron(1833) removed all nexus between state arms control laws and the 2nd. The 14th, while later court decisions invented incorporation, made absolutely no mention of the Rights. It is difficult to believe that those who framed the 14th would not have used the term Rights instead of privileges and immunities since one would suspect that the Framers of the 14th knew what Rights were. Or maybe folks just want to pretend that the Framers of the 14th were ignorant of the Bill of Rights. We know the SC was ignorant when they ignored the supremacy clause and the guarantee a republican form of government clauses in deciding Barron. Madison's ideas of inserting the pieces of the BoR were repudiated when the BoR was NOT inserted so his concepts were meaningless.
When Barron removed the BoR from binding the states, the law removed any relationship between state laws and the 2nd. Thus anyone with sentient capabilities should be able to grasp that any state law that concerns a topic protected by the 2nd that was passed after 1833 and prior to VERY recent decisions (which btw have NOT overturned Barron completely) is not a valid measure of legitimate limitations on the 2nd. Honorable folks will reject all state laws on carry, on "sensitive places", etc in state legislation from 1833 to present.