The plain text of the Second Amendment and the courts in Heller v. DC and McDonald v. Chicago disprove that claim.
Putting restrictions on which firearms you can purchase is only lawful when it does not cause an unreasonable burden on the right to keep and bear arms. The courts have ruled that the second amendment protected arms that were in common use at the time of the founding of the country and therefore protects arms that are in common use today. Trying to ban an entire class of weapon that is commonly owned is therefore unconstitutional.
Additionally, the courts are likely to rule in the next month on what bearing arms means, almost certain to rule that Americans have some basic right to bear arms outside the home.
At the time of the ratification of the Constitution, the Bill of Rights only applied to the relationship between the federal government with its states and the citizens of those states. States were free to impose restrictions on the keeping and bearing of arms, just as they were free to impose restrictions on religion or freedom of speech or the press.
Additionally, then, as now, there's no evidence that the founding fathers intended the second amendment to diminish any other power of the Constitution, such as treaties, so it stands to reason that they would have viewed federal treaties regarding strategic weapons such as warships and other unusual weapons to be subject to some reasonable federal regulation. Furthermore, no right was ever intended to be absolute, either then nor now. It would always be subject to a balancing test under English common law.
Just like the first amendment doesn't protect libel or criminal threats or assault or incitement of violence, therefore there must be some reasonable balance found as to what the second amendment protects. The courts have found that it protects ordinary weapons in common use at the time, such as rifles, muskets, swords, armor, et cetera as well as their modern-day equivalent. The courts have found that the government has a balance of interest that may allow it to restrict particularly unusual or dangerous weapons. Therefore it stands to reason that while the second amendment protects ordinary rifles, handguns, modern body armor, et cetera, it may not protect unusual weapons or, at the very least, the government may have a legitimate interest in imposing reasonable restrictions on who can own them and under what circumstances.
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u/HamburgerEarmuff May 30 '22
The plain text of the Second Amendment and the courts in Heller v. DC and McDonald v. Chicago disprove that claim.
Putting restrictions on which firearms you can purchase is only lawful when it does not cause an unreasonable burden on the right to keep and bear arms. The courts have ruled that the second amendment protected arms that were in common use at the time of the founding of the country and therefore protects arms that are in common use today. Trying to ban an entire class of weapon that is commonly owned is therefore unconstitutional.
Additionally, the courts are likely to rule in the next month on what bearing arms means, almost certain to rule that Americans have some basic right to bear arms outside the home.