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Notes -
It’s pretty annoying that every gun case now is constitutionally required to be an 18th-century literature review, especially if we have to do the extra work of figuring out which laws were and weren’t racist.
Unfortunately that is primarily because the 2A has been a red headed stepchild in SCOTUS forever - with SCOTUS not taking almost any 2A cases - so they haven't built up much precedent. Going back in history to see what laws were around is how SCOTUS does all the constitutional interpretation, but because they have a ton of built up caselaw they point to those cases (which should eventually point back to founding era stuff) it just seems less like that is what its doing on its face. If SCOTUS were to take up a couple 2A cases each term, like they do for the 1A, we'd have a similarly built up rulings to make things seem more obvious based on previous rulings.
Before Bruen, the 2A was primarily considered using "interest balancing" unlike every other constitutional amendment. Can you imagine the courts doing "interest balancing" on whether the government can restrict your speech?
As far as laws being racist or not, once a law has been ruled unconstitutional it is considered as though it was always unconstitutional - so citing an unconstitutional law for evidence is a really bad argument. Hence why using the Black Codes for evidence was a nonstarter.
The difficulty with 2A is that a straightforward reading is not really compatible with a stable modern society. A crazy man with a flintlock musket can only do so much damage, despite it having been the state of the art weapon system for the bulk of military forces. A crazy man with a flock of explosive drones or a fission bomb can do much more damage, and no country can survive engaging in mutually assured destruction diplomacy with the craziest 1% of their citizens individually. Different people may draw the line in slightly different places for 2A, but very few believe that no line should be drawn at all.
This is not so much different from limitations on the 1A. Should it be allowed to promise people rewards for committing crimes? Should it be allowed to make fraudulent bomb threats or SWAT people? Should a mob boss go free as long as all he did was talk to his underlings? All of these are restrictions on free speech, but they are obvious restrictions which are required to have a functioning state at all.
I see this claim thrown around as obviously true on a regular basis but I don't think it really stands up to scrutiny. Something about an armed society being a polite society.
How are you defining "stable" and "modern" in this context? Do New York and California count? Do Texas and Florida not?
I don't think @quiet_NaN is saying that widespread gun ownership or widespread concealed carry of handguns is incompatible with a modern society - he is saying that the text of the 2nd amendment doesn't distinguish between "citizen grade weapons" like AR15s and "military grade weapons" like F35s, VX gas grenades, and nukes, and therefore taking it literally and seriously would allow nuclear-armed Branch Davidians and suchlike, and that that is not compatible with a modern society. I agree - I think that a government that is actually meaningfully restricted in its actions by fear of small groups of armed citizens is a failed state, and would perform like one.
See for example this subthread where pro-2nd amendment Motteposters argued that it protected a private right to own siege artillery and warships at the time of the founding.
At some point there is going to be litigation over whether the 2nd amendment permits private ownership of killer drones. The legal arguments will be about as edifying as the litigation over full-auto and scary-looking semi-auto rifles, but the results will matter.
Speaking as something close to a 2A absolutist, this can be mitigated the same way the US can regulate psi-emitters and other forms of bio-engineered insectoid war-horrors - by the FCC.
The FCC is as subject to the Second Amendment as any other part of government.
I think the idea is that since psi-emitters and insectoid war-horrors are fictional, they are regulated by the FCC as fictional media.
The joke is that they'd transmit along the radio spectrum, and thus be subject to FCC regulation.
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