Plain Text, …
B.L.U.F.
Don’t let the government cheat! Plain text first. Know what it means. K.I.S.S. it. Is it an arm? Are they a member of The People? Do they want to keep or bear?
Done!
(1550 words)
While Justice Thomas said that the inferior courts had gone one step too far in their two-step analysis of Second Amendment challenges, the Heller Court did lay out a two-step analysis.
Heller said that the first step was to determine if the proposed conduct implicated the plain text of the Second Amendment as understood at the founding. The second step was for the state to provide historical analogues of the modern infringement from the time of the founding.
The inferior courts cheated. They took the Heller methodology and just assumed that the modern infringement was unconstitutional without deciding.
This allowed them to say, “We will assume an ‘assault weapon’ ban is assumed to be unconstitutional. Moving on, we look at how bad your rape is, if it is bad bad, then we’ll use strict scrutiny. If it is only a bad rape, then we’ll use intermediate scrutiny. The government then has the burden to show that they have a good reason to be raping you.”
Justice Thomas slapped the inferior courts around. He explained that the inferior courts, when deciding a Second Amendment challenge, must first determine if the proposed conduct touches fingers with the plain text of the Second Amendment. If it does, then the inferior court moves to the second and final step, can the state prove a history and tradition of regulations from the founding which are analogous to the modern infringement.
The Heller Court analyzed every word and phrase of the Second Amendment. They have laid out the meaning of the plain text of the Second Amendment. There is no “It depends on what your definition of is, is”. It is defined.
The plain text of the Second Amendment is implicated if a member of The People wants to keep or bear arms.