belercous said:
Also, in 1789, the 2A was was a right granted to the states, not individuals, so original intent as it regards the 2A is out the window to begin with.
First of all, the Bill of Rights does not "grant rights." It recognizes pre-existing rights and pledges that the federal government will not interfere with them. You claim to be familiar with Second Amendment law, surely you've read Cruikshank where it states: "The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence."
So among the rights the federal government recognized as pre-existing in the Bill of Rights, was the right of individuals to keep and carry firearms - thus
the right is an individual right (as so ruled in
Heller and McDonald, and as described by virtually
every single commentary on the Amendment by the Founding Fathers).
Bartholomew: Yes, Scalia said the restrictions he listed were "presumed" valid. Those issues were not before the bar in Heller and even if the Court's opinion ruled against them such verbiage would have been considered "obiter dicta." Ruling on them would have been meaningless as those issues were not argued before the Court. If an issue is not fully argued before a court such ruling is not considered valid under the "due process" clause.
I'm an attorney. You don't need to explain dicta or why the Court won't rule on issues not before it to me.
No federal law prohibitted the mentally ill, etc., from owning guns in 1789. The F.F.'s didn't include any such prohibitions in the 2A. They could have, but they didn't chose to limit the states in this respect.
This statement is puzzling to me for several reasons.
On the one hand, your ability to distinguish between state and federal governments shows you understand at least some concepts of federalism. Yet at the same time, you seem to believe that the Bill of Rights is some grant of power to the states rather than it being a restraint on the powers of the federal government demanded by the states.
Second, you appear to believe that the originalist view of the Second Amendment applied only to states, yet you argue here that the Founding Fathers could have chose to include provisions preventing the mentally ill from owning firearms as part of a document titled "Bill of Rights" for a clause that didn't apply to individuals at all; but only to states?
It does show one of the problems (and there are many) in using original intent as a guiding principle in constsitutional interpretation.
I am not seeing the problem for these reasons:
The Second Amendment prevents the federal government from regulating the pre-existing right of individuals to keep and carry firearms. The pre-existing right (as described by Blackstone in 1769 and similar founding-era commentators) that was recognized at that time did not include the mentally-ill, people in prisons, etc. Felons (and fewer crimes were felonies) were typically executed or imprisoned in conditions that amounted to execution during colonial times so the issue of Second Amendment rights for released felons was largely a non-sequitr. Recognizing this is, in fact, an originalist view.
As a corrollary, people in prisons in 1789 were not afforded free speech. The First Amendment makes no exceptions for people in prisons. Was this because the Founding Fathers wished to extend the full panopoly of First Amendment rights to prisoners or was it simply understood at the time the First Amendment was drafted (originalist view) that some restrictions on the free speech of prisoners were necessary to run a prison?
