Second Amendment Roundup: Expert Historian Testimony Is Unnecessary in Second Amendment Litigation

Wolford presents a good opportunity for the Supreme Court to explain why.

In Wolford v. Lopez, the Supreme Court has the opportunity to clarify for the lower courts the difference between legislative and adjudicative facts. Lower courts hostile to the Second Amendment routinely confuse legislative and adjudicative facts, seeking to turn Second Amendment litigation into an expensive and time-consuming battle of the academic experts and historians where the "winner's" opinions are insulated from review absent a finding of clear error.

Adjudicative facts refer to evidence about the conduct of the parties within a case, i.e., the answer to the question "did the defendant drive through a red light?" Historical laws and events that do not bear on the conduct of the specific parties are legislative facts, i.e., Founding Father James Madison died in 1836 or the British were marching to seize arms and weapons when the Battle of Lexington and Concord broke out.

Nevertheless, lower courts often hear testimony from so-called "expert" historians on questions of legal interpretations involving Second Amendment issues and historical firearm regulations. Then, those lower courts rely on that testimony to make legal findings about the meaning of the Second Amendment and the constitutionality of modern gun laws. Not only are these courts legislating from the bench, they are signaling a return to interest balancing in defiance of the Court's holding in Bruen.

In the district court in Wolford, Hawaii submitted multiple expert reports that opined on the meaning of the common law and early American firearm restrictions. Historian Clayton Cramer's amicus brief in Wolford explains that in some instances, these experts opined on whether Heller, McDonald, and Bruen are historically accurate. But such determinations are legal conclusions, not factual findings. Legal conclusions cannot be made by expert witnesses, only judges can make legal conclusions. But such expert testimony is unnecessary to determine whether a historical analogue proffered by the government is relevantly similar to a modern gun control law being challenged.

Indeed, the Supreme Court has never required testifying experts to resolve Second Amendment questions. Heller came to the Court on a motion to dismiss, with no factual record developed below. McDonald similarly did not need a trial – the only issue was whether the Second Amendment applied to the States through the Fourteenth Amendment. When New York argued that the Court could not decide Bruen without further fact finding, the Court rejected that assertion and further dismissed as unnecessary Justice Bryer's request for remand, instead ruling directly on the pleadings without any discovery. Rahimi came to the Court on a guilty plea, without any trial. Expert testimony by historians and others addressing the Second Amendment's meaning is unnecessary and should be discouraged by the Supreme Court.

Treating legislative facts as adjudicative facts subjects rights' claimants to long, expensive trials, and binds appellate courts to incorrect factual findings. If the historical record was a matter of adjudicative fact, plaintiffs and the government would have to submit expert testimony, file and adjudicate Daubert motions, examine and cross-examine these witnesses, and then let a jury or judge make findings of fact about what the Founding generation intended over 200 years ago. This is unfair to Second Amendment rights claimants when confronted with the largely infinite resources of the government and the gun control-supporting handmaidens in universities and public health schools full of anti-gun Progressives.  Further, findings of fact can only be reversed by an appellate court if they are "clearly erroneous," which is a very high bar to satisfy.  Credibility determinations at the trial level also come into play further complicating the issue.

Amusingly, or maybe not so much, one district court found that Massad Ayoob could not be credited as an expert in firearms given his pro-Second Amendment leanings despite being recognized as a world-class expert firearm and self-defense expert for decades.  Instead, the court deferred to Lucy Allen, an economist, who "has been conducting statistical analyses related to crime and gun use for twenty-five years" – hardly a qualification as a self-defense expert – and who serves as an "expert" in other gun cases for $900 per hour.

Or consider historian Saul Cornell, who wrote in Slate that "the majority opinion in NYSRPA v. Bruen is one of the most intellectually dishonest and poorly argued decisions in American judicial history."  In one of his  many declarations filed thereafter, he purports to explain: "Following the mandates set out … in Bruen, history provides essential guideposts in evaluating the scope of permissible regulation under the Second Amendment."

However, if courts treat history as legislative facts, as they should (and as the Supreme Court instructs by its decisions in Heller, Bruen, McDonald, Caetano, and Rahimi), then appellate courts may review a district court's findings de novo, go beyond the record to find more legislative facts, and consider facts introduced by the parties in the appellate court but not the district court. This further lessens the burden on rights' claimants who should not be required to spend exorbitant sums preparing and defending expert testimony.

When the Supreme Court decides Wolford, it should seize upon the opportunity to instruct the lower courts that Second Amendment cases turn on legislative and not adjudicative facts. Legislative facts cannot be converted into adjudicative facts by judicial fiat, and expert testimony interpreting historical firearm laws is not necessary or encouraged. Appellate review of Second Amendment challenges should be de novo and not subject to a clearly erroneous standard on appeal.

For more detail on the use of biased "experts" in Second Amendment cases, see my post "Should Courts Appoint Historians as Experts in Second Amendment Cases?"

Comments

[ReaderY]

When a federal court adjudicates a dispute involving foreign law, it often entertains opinions from experts in the applicable body of foreign law as to what that law requires. And this is so even though everyone understands perfectly wellthat what foreign law requires represents a question of law, not fact.

I don’t see this as fundamentally different. Yes, what 18th or 19th century law required is a question of law, not fact. But experts are perfectly helpful for and relevant to that question.

I think two arguments in particular - that all historians are Leftists and therefore cannot be believed, and that impoverished plaintiffs can’t possibly stand up to rich elites and therefore ahould be excused from having to prove a case - get to the real argument being made. Taking history seriously might lead to the “wrong” results, results based on how things actually were rather than how 2nd Amendment absolutists wish, pretend, and would like people to believe they were.

[Hugh]

You made your Bruen bed, now lie in it.

[Brett Bellmore]

I would, in fact, love to. I'm not thrilled to lie in a fake Bruen bed constructed by people determined to render Bruen a hollow victory, though.

[Sarcastr0]

Only BrettLaw Bruen.

Accept no actual Supreme Court opinion substitutes!

[Brett Bellmore]

In this case ThomasLaw, I'll remind you.

[Sarcastr0]

Nah, you've gone beyond that lone-Justice dissent, with your everyone else knows the truth but is in bad faith nonsense.

That's pure BrettLaw.

[Brett Bellmore]

You're going to have a hard time convincing me of that, given Thomas' dissent in Rahimi. Beginning on page 72.

Your determination to insist that my take on the law is totally off the wall, even when it's identical to the position of Supreme court justices, is kind of pathological.

[Sarcastr0]

Bruen is what it is, and that's what the Court says it is.

Your insistence that's it's actually something else that's super clear and the Court and everyone else agrees with you and everyone knows it?

Yeah, that's off the wall. It would be about any Court precedent.

[Stupid Government Tricks]

You're the one making the claim without any backing. Brett provided a reference. You? Nada. Zip. Zero. Zilch. At least your handle ends appropriately.

[Sarcastr0]

LOL, click on that link, see how the Court actually voted.

He cited to a lone dissent.

[Brett Bellmore]

I cited a lone dissent for the proposition that the dissenter agreed with me. Which is why I said it was more "ThomasLaw" than "BrettLaw".

[Stupid Government Tricks]

And you cited to nothing, which has even less value than a dissent.

[SRG2]

Halbrook is outright whining here. Complaining about judges legislating from the bench is sophomoric - almost literally.

Particularly where one resorts either to originalism or the contrary "history and tradition", it is by no means clear that a court is by inclination or training better equipped to analyse the historical record than an expert (no scare quotes) historian with the necessary domain-specific knowledge.

Halbrook's issue is that he feels that historians are biased. This may be true - I will stipulate that in many cases this is true - but that doesn't mean that the historian's conclusions are necessarily wrong. Halbrook is hardly an objective arbiter himself.

If a court in the 1840s uses a phrase that at the time and locaton had a well-understood common usage, as demonstrated by literature, press reports, etc. of the time, why should an historian of that time and location be ignored when he says what the phrase meant then, given that a modern court may itself have neither the time nor the inclination to do its own research, and instead relies on what an 1820 court or an 1860 court elsewhere appeared to mean by the same phrase?

[Stephen Lathrop]

SRG2 — A notion that political prejudice corrupts historical research is itself paradoxical, given that a principal canon of academic historical research is that it rely on methods which disconnect historical research entirely from present-minded purposes. Unfortunately, that professional canon cannot be imposed by law, and in practice it does sometimes get ignored by non-elite historians (the majority of all of them, as in all the learned professions.) So history written with an eye to influence the practical present does happen, and happens too often.

The solution is to rely instead on historians judged by their peers as the most influential and authoritative. They are easy to find. They tend to hold prestigious endowed chairs at the world's leading academic institutions. If you engage with one of them, you will usually find it nearly impossible to elicit any remark touching on present-minded politics or policies.

An example to illustrate the type is the now-deceased historian Eric Hobsbawm. Hobsbawm made a reputation as a world-leading British historian of the rise of industrial capitalism, socialism and nationalism. That happened despite a personal quirk that his politics remained avowedly Stalinist until his death years after almost everyone had recognized what an awful ideology Stalinism was.

Some academics who were less-scrupulously professional themselves denounced Hobsbawm for ideological reasons of their own. But when he died, Hobsbawm's professional peers of all political stripes sang his praises as a thoroughgoing professional, whose work showed no taint of ideology.

You can see for yourself by reading his books. You will find them thorough, dismayingly statistical and detailed, dry as dust despite being well-written, full of charts and tables which repay study, and illustrate unexpected facts about the past, and completely unideological. I think that happened because Hobsbawm was a Stalinist, and thus believed the facts of history illustrated the truth of his ideology, if left to stand on their own.

In that conclusion Hobsbawm was mistaken, but as other researchers have confirmed, his facts withstand scrutiny. For better understanding of industrial capitalism, socialism and nationalism, you can count on Hobsbawm for unexpected insights.

[Joe_dallas]

"Halbrook's issue is that he feels that historians are biased. This may be true - I will stipulate that in many cases this is true - but that doesn't mean that the historian's conclusions are necessarily wrong. Halbrook is hardly an objective arbiter himself."

Did you bother to read Steven's attempt his attempt to base his dissent on originalism which he used historical experts as the foundation of his originalism? His historical experts somehow couldnt find any historical writings on both the common defense and self defense. His historical experts couldnt find in the congressional record when a proposal to limit 2A to the common defenses was voted down.

[Brett Bellmore]

To be fair, Scalia wasn't exactly engaging in honest originalism, either; Stevens wanted to render the amendment dead, Scalia was willing to stop at neutering it a bit.

If Stevens got his way, it would have been the "right" to be armed whenever the government told you to be armed, and not otherwise. Restricted to military service.

Scalia wanted to transform the right to "their swords, and every terrible implement of the soldier" to a right to "Their blunderbuss and every non-frightening implement of the Fudd." Neutered, not dead.

And what was Stevens to do, anyway? It was a topic where the public were actually going to be watching, so he HAD to try to look like he was doing originalism, the public thinks that's the only legitimate approach to constitutional interpretation. It's not Stevens' fault that the historical evidence was all against him!

[Joe_dallas]

Brett - Yes I agree that Scalia likewise botched the opinion. In his defense, only question before the court was the individual right, not the collective right. So while botching the purpose of the militia clause is bad, it didnt affect the correct result on the individual right, albeit with partially bad analysis.

I think the only thing we disagree on is the purpose of the militia clause.

The individual right is pretty clear based on the historical record, especially considering the senate vote on the proposal to limit 2A to the "common defense" which was voted down during the adoption process before it was sent to the states for ratification.

The purpose of the militia clause is somewhat of a stumper. It serves no purpose as a clause to list one of the reasons for the individual right. The clause " the right of the people to keep.." makes no sense if the the purpose of the militia clause is to limit the right to serving in the militia. In my opinion the only logical purpose of the militia clause to protect the right of the states (or the people) to form militia's for the common defense. thus two rights, the individual right and the collective right.

[Brett Bellmore]

OK, let me clear that up for you, then.

The point of the militia clause is to establish, not just that the people are entitled to private ownership of arms, but that they are entitled to private ownership of everything a militia needs, (Every terrible instrument of the soldier.) and to train with them.

The objective was a population from which a militia could be raised in an emergency even if the government didn't WANT it to be possible to raise a militia.

See, the ideological point of the militia system was that unlike a standing army, which could be expected to do the government's will even contrary to the will of the people, the militia was a weapon with its own will; Not only available to do the things that needed doing, but able to refuse to do the things that shouldn't be done, even to oppose those things being done.

Tench Cox was a founder who put in a lot of work promoting the Bill of Rights, and was actually thanked by Madison for doing so. Here is what Madison was thanking him for writing:

"Whereas civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms."

The militia system wasn't just to save money on a standing army, it was envisioned that under some circumstances it might even have to oppose such an army.

Accordingly, the government had to be barred from rendering a militia impossible to raise by prohibiting private ownership and training with militia suitable weapons.

It's rather blatant that modern gun control EXACTLY aims to deny the general population military arms.

[SRG2]

It's also rather blatant that in the face of government tyranny, those who have most strenuously advocated against gun control have remained silent.

[John 4]

I don’t really consider people like Brett to be advocates of freedom. They just wanna play with their guns and pretend to be persecuted. It’s really obvious in light of current events.

[Brett Bellmore]

I'm not seeing a government that's any more tyrannical than usual. I'm seeing a government where the shoe is on the other foot, and the left want to pretend things are worse because their evils don't count, only Republican evils.

[Stephen Lathrop]

Bellmore — It was likewise blatant that pre-founding colonial Virginia defied a royal decree to force the Virginia gentry to arm the colony's white citizenry, to turn it into an effective militia, and thus spare the royal purse some of the expense of defending the colony. That decree was borne back across the Atlantic to the gentry, decorated with the royal seal, in the hands of Virginia's most-popular-ever former governor. The gentry defied it anyway. They did not trust menial-class whites enough to permit them arms.

As I mentioned elsewhere, people who suppose their present-minded suppositions came to them by historical descent must learn to expect—and respect—surprises, if they attempt dispassionate historical research. Note also that cherry-picking quotes provided by professional gun advocates, or Googling the Federalist Papers, is not dispassionate historical research. If you do not understand that distinction, start there to correct your problem.

[Incunabulum]

That there are 'dueling experts' in history says that yes, the 'domain experts' are biased.

[Incunabulum]

Their conclusions do not have to be wrong - but at the end of the day the court still has to decide how right they are in order to judge whether or not to trust their work.

[Incunabulum]

What happens when different historians claim it means different things?

What happens when the government uses racists laws as justifications for modern restrictions? What does laws explicitly for the disarming of non-whites mean in the 21st century?

[bernard11]

Hard to fathom this.

We should rely on "history and tradition," but disregard the testimony of experts on history and tradition. Is that right?

these experts opined on whether Heller, McDonald, and Bruen are historically accurate. But such determinations are legal conclusions, not factual findings.

WTF? If the court says "A is true as a matter of simple fact," and a historian who has studied the matter says, "No. It's plainly false, and here's why," we are to ignore the historian and believe the judicial falsehood, which is probably something they learned in the 7th grade.

Really?

[Brett Bellmore]

The issue here is that historical research can tell you there was such and such law in such and such place.

It can't tell you that it was relevantly similar to a different law today. That's legal reasoning, not historical.

[SRG2]

And it can also tell you what the law meant, tell you about the later history and tradition concerning the implementation of the law - particularly useful if there are no actual cases. Suppose a law was passed in 1820. For the next say 80 years there are no cases brought where the law itself was challenged but a few cases where people were tried under the law, and plenty of instances where the law was observed in certain ways.

Who better to determine the history and tradition of the law - an historian familiar with that history and tradition or a court with only a single case to go on and nowhere near as well equipped to carry out the necessary investigation of the history and tradition?

Obviously the historian, so no need to reply.

[Brett Bellmore]

The historian can tell you that there was a law regulating siting of powder magazines.

They can't tell you if that is relevant to a modern law regulating how much ammo you can have at home.

The historian can tell you there was a law providing for a civil process whereby somebody with a history of violence could be required to put up a bond if they wanted to take their guns off their own property.

They can't tell you if that's relevant to a modern law telling somebody with such a history that they can't HAVE guns, period.

Because the difference between yesterday and today is history, but the difference between the legal implications is law.

[SRG2]

The historian can tell you there was a law providing for a civil process whereby somebody with a history of violence could be required to put up a bond if they wanted to take their guns off their own property.

And the historian can also tell you how society operated under that law and hence what the relevant history and tradition was

They can't tell you if that's relevant to a modern law telling somebody with such a history that they can't HAVE guns, period.

Nor did I claim otherwise. You clearly deflected away from my hypothetical, of course.

[Brett Bellmore]

I'm not denying that there's a place for historians. I'm denying that it's decisive.

[Stephen Lathrop]

Inadvertent confession from Halbrook that Bruen is an unworkable mess of a decision. That is so because Bruen demands anti-historical methodology as the only means legally acceptable to establish so-called, "history and tradition."

Having used that term as a touchstone, pro-gun advocates, including Supreme Court justices who know nothing of the methods required for academic historical research, are dismayed to discover that expert knowledge encompassed by the term debunks broad reaches of pro-gun prejudice. So of course, just as Justice Thomas did in Bruen, they demand academic historical expertise be excluded from legal consideration.

The aim of the OP is the same as the aim of Bruen. To make certain that only pro-gun prejudice is admissible as fact in gun rights jurisprudence. Long-term, the only result to expect from doing it that way will be the overturn of legal precedents erected on such a slip-shod foundation.

I reject the notion of originalist legal interpretation as both naive and unworkable. But if courts insist to the contrary, then pro-gun advocates will eventually have to school themselves in proper methods to research and understand what happened in the past. When they do, they will discover—just as academic historical researchers invariably learn from experience—that the past is full of surprises. Study of those surprises quite often overturns present-minded expectations.

[Brett Bellmore]

Bruen is entirely workable, in the hands of people who aren't determined to make sure that it doesn't work. The finest tool in the world won't work, in the hands of somebody who is determined to see to it that it won't work.

The real problem with Bruen is that modern gun control is so radically at odds with anything practiced in the relevant time frame that very few gun control laws would survive Bruen analysis. Properly so!

And most of the judiciary do not WANT almost all gun control laws to fall, do not WANT a restoration of robust 2nd amendment liberty comparable to 1st amendment liberty. They might not all be radical gun controllers, but most of them have internalized the gun control ethos, they instinctively reject the founders' view of gun ownership, that "Their swords and every terrible implement of the soldier are the birthright of Americans."

But "I will not permit this to work" is none the less not the same as "unworkable". Bruen would work just fine if you could find judges to apply it who weren't fundamentally hostile to 1/10th of the Bill of Rights.

[Stephen Lathrop]

The real problem with Bruen is that modern gun control is so radically at odds with anything practiced in the relevant time frame that very few gun control laws would survive Bruen analysis. Properly so!

Bellmore — Unintentionally insightful, and accurate besides. Indeed, founding era legal thinkers could know nothing at all about modern gun control ideas and ideology. All that lay in their unknowable future.

What does that mean for Bruen? It means Bruen's legal analogy test is either unworkable, or if insistence on its workability prevails, that decisions are guaranteed to have nothing at all to do with what happened in the past.

Hence, either way, Bruen remains unmoored from historical foundation, and was decided on a non-historical basis. That leaves you free to like the outcome, but not at liberty to insist reasonably that it was decided on any basis except present-minded pro-gun prejudice,

[Brett Bellmore]

"Indeed, founding era legal thinkers could know nothing at all about modern gun control ideas and ideology."

Not quite. The founding era thinkers could not have known, of course, about contingent developments that might happen over 200 years later.

But they were quite familiar with the urge to disarm the populace. It's merely that they had rejected it. Expressly, in what was supposed to be a legally binding fashion.

Bruen is very moored in its historical foundations. They are historical foundations that today's judiciary abhors, rejects, are determined to steer clear of.

And if that were the result of a constitutional amendment, that would be just fine. We have rejected the values of the founding era in several respects, formally, by amending the Constitution. Because we had achieved a consensus they should be rejected. (Sometimes achieved it at the point of a gun, mind.)

Your problem is that there isn't any consensus today that we should reject the founding era's values with respect to firearms. And so an amendment to formally reject them is politically infeasible. You have to actually violate the Constitution as ratified to reject them.

But since opinions on the matter are not uniformly distributed, and rejection of those values is much more prevalent in the government and particularly the judiciary, than in the general population, such rejection is regrettably feasible. It's very hard for the public to make sure that the people in a position to undermine the 2nd amendment aren't determined to do just that.

[Stephen Lathrop]

But they were quite familiar with the urge to disarm the populace. It's merely that they had rejected it. Expressly, in what was supposed to be a legally binding fashion.

Bellmore — Alas, the historical recored shows that generalization applied somewhat, during some times, and at some places, among some people, but was at least as likely—probably more likely—to be flouted otherwise.

Pre-founding customs left arms regulation in many places not to statutes, but to essentially arbitrary interpretations by magistrates. Those governed their edicts by personal interpretations of local customs and expectations, if not by pure whimsy.

From the earliest days of colonial settlement, to the founding era, and continuing afterwards, the historical record abounds with arbitrarily inflicted gun controls. Factors which might count for or against being permitted liberty with guns included: whether the party in question was a known resident or a stranger; whether a member of a recognized religious congregation or not; whether the gun carrier was reputed to be diligent and orderly, or otherwise; for what purposes the arms were ostensibly kept and carried; what prevailing circumstances of settlement and perceived danger applied; and always and everywhere questions of personal status and social class.

Moreover, in the earlier times in question, a legal custom is evident to judge cases less on the basis of evaluating motives and actions of an alleged perpetrator, and more on the basis of effects the perpetrator's actions produced among those the perpetrator encountered. What often made a gun-related incident illegal in practice was the answer to a question what disruptive effect it delivered, without regard to any question of a right to carry the gun. If the sight of the gun carrier, or especially any action by the gun carrier, frightened someone judged entitled not to be frightened, that counted against the gun carrier. Gun carriers were expected to understand that and behave accordingly.

The purpose of the law was widely understood to be promotion of a sense of peace and social cohesion, not protection of individual rights. That was a view central not only during the pre-Enlightenment era, but also afterward.

Benjamin Franklin espoused a rights-skeptical view as a recommended political principle. He wrote that resort to claims of rights stifled constructive political discourse. Your polar opposite view has its place, and is not unknown to history. It is not the summation of history you suppose it to be.

[Longtobefree]

"When the Supreme Court decides Wolford, it should seize upon the opportunity to instruct the lower courts that Second Amendment cases turn on legislative and not adjudicative facts."

The supremes should instruct the lower courts, and themselves, that the second amendment turns on whether a law infringes on the right to keep and bear arms.

[MarkJawz]

The judiciary jumped the shark back in the 1930s.

This is just a continuation of it.

[JoeFromtheBronx]

There is no need for a one-way ratchet here.

Historians can be used to support various positions. Experts are used regularly in constitutional cases.

If you are going to apply a "history and tradition" approach, historians are helpful. Lawyers can cosplay as historians. Sure.

I don't think the approach is an ideal one. It is even worse when you disdain historians.

The author sneers:

Or consider historian Saul Cornell, who wrote in Slate that "the majority opinion in NYSRPA v. Bruen is one of the most intellectually dishonest and poorly argued decisions in American judicial history."

Bruen has been well panned and eventually was "applied" in an opinion where its author was a lone dissenter. IOW, where's the lie? For this, we are supposed to ignore a historian on the RKBA? Why? Because he disagrees with your point of view?

Heller came to the Court on a motion to dismiss, with no factual record developed below.

This was not necessarily ideal. I put aside the fact that the right thing to do in that case was to send the case back to have the lower courts apply the new constitutional rule.

I think there is a general problem here. Multiple times, a complex, often fact-heavy dispute arises. The Supreme Court decides a case without a factual record. It's all quite artificial with the justices deciding things with one hand tied behind their backs.

[Brett Bellmore]

Bruen was very intellectually honest, and that was the problem. The judiciary as a whole, and most of the Court, were not prepared to be that honest about the 2nd amendment. The 2nd amendment the founders gave us came from a view of the proper relationship between government and the citizenry that was too alien to their own view of such matters. Interpreting it honestly led places they couldn't tolerate.

[SRG2]

So we can haz weaponised anthrax and suitcase nukes then.

[Absaroka]

Those don't seem particularly useful for the 'resist tyranny' part of the 2A, much less the self defense part.

[Stephen Lathrop]

Absaroka — Once again, question begging. The nub of the 2A controversy remains the question whether a 2A protected right to personal self-defense ever existed.

Your reference to, "the self-defense part," relies on assumptions I challenge you to support, either textually, or by historical reasoning. I don't think anyone can accomplish that, because I think it is a misinterpretation of what happened in the past. I can find no records to support any such assumptions. If you think you can, please cite them. But remember the challenge is not to show a gun culture existed, it is to show that specific federal enumeration established a uniform standard to govern that gun culture alike everywhere.

As always, when I make this point I must also agree that a right to personal self-defense with firearms is founded in America's tradition dating back to before the founding era. The mistake is to assume without text or evidence in support that such a right was protected federally. It was not, and could not have been. It was protected variously in different colonies, and afterwards in differing state constitutions.

There was too much disagreement among the colonies, later the states, about specifics and purposes of firearms rights they wanted state residents to have. And which state residents should have them. Without prospect of reaching such agreement, the drafters of the Constitution and the Bill of Rights bypassed those questions, leaving them to the states to decide variously according to their own preferences.

Any attempt at a single federal standard would have endangered ratification of the Constitution and the Bill of Rights. What Pennsylvania put in its state Constitution would have been political poison in Virginia.

[JoeFromtheBronx]

Whatever the "original understanding" entails, the 2A, as a matter of law, now has a "self-defense" part. SCOTUS says so.

I think there was a right to personal self-defense that followed a different track than the militia. Saul Cornell discusses this.

The Bill of Rights was not originally applied to the states. Barron v. Baltimore. So, state discretion here would not be much of an issue. There would still be a "federal standard" to formulate.

I think there was a basic understanding that people had a right to personal self-defense. If nothing else, it was one of the rights referenced in the Ninth Amendment.

The privacy and property rights protected by the Fourth Amendment are also is relevent here.

There was a right of personal self-defense protected against federal power. People in the federal territories had a right to self-defense. It was something that was factored in when applying federal criminal statutes. And so on.

Blackstone and other writers recognized a right of personal self-defense. It was in place. People figured it was obvious.

The Bill of Rights addresses things particularly debated, such as federal power over religion, state militia (the basic purposes of the militia are cited in Art. 1, sec. 8), quartering of troops, etc.

A person's right to self-defense was not an immediate concern that needed a special amendment to emphasize its existence. Self-defense was more of a concern after the Civil War, particularly the self-defense of newly freed slaves against the KKK, etc.

[Incunabulum]

If they're not useful - why does the government have them?

[Brett Bellmore]

Oh, I'm sorry; Has the federal government started issuing biowarfare suites and nuclear bombs when you graduate from boot camp? I'm a bit shocked about that.

It's true that the 2nd amendment was not written in anticipation of weapons development progressing to the point where one man might carry a weapon that could end a city.

But it's also true that the laws we're debating aren't aimed at suitcase nukes. They're aimed at ordinary rifles and handguns such as an ordinary soldier would carry.

The ordinary soldier gun controllers want to make sure can not be effectively opposed by Americans, because they know they want to do a lot of shit that pisses people off...

[Incunabulum]

They do issue biowarfare *suits* - because that stuff is useful as a weapon of war so we provide defense against.

And we, famously, have ended a war with nukes.