Part of the Heller methodology is the use of text, history, and tradition of regulations.
Not discussions, not proposed laws, not policy, but actual regulations. That is, laws passed by the legislatures of the state or federal government.
Today, it is pretty easy to gather the current laws. It is more difficult to get historical records. “The Court House burned down.” isn’t just an excuse, it actually happened, in several places.
Remember that in the war of 1812, the British marched into Washington, D.C. and burned large parts of it.
So what is a rogue court and an infringing state to do when they can’t find a regulation to match their proposed infringement?
Find somebody who made it up!
Item, it is enacted, that no man great nor small, of what condition soever he be, except the King’s servants in his presence, and his Ministers in executing of the King’s precepts, of of their office, and such as be in their company assisting them, and also upon a cry made for arms to keep the peace, and the same in such places where such acts happen, be so hardy to come before the King’s justices, or other of the King’s Ministers doing their office with force and arms, nor bring no force in affray of peace, nor to go nor ride armed by night nor by day, in fairs, markets nor in the presence of the King’s Justices, or other ministers, nor it [sic, likely “in”] no part elsewhere, upon pain to forfeit their armour to the King, and their bodies to prison at the King’s pleasure. And that the King’s Justices in their presence, Sheriffs and other ministers in their bailiwicks, Lords of Franchises, and their bailiffs in the same, and Mayors and Bailiffs of cities and boroughs, within the same cities and boroughs, and boroughholders, constables and wardens of the peace within their wards shall have power to execute this etc. [in original] And that the Justices assigned, at thier coming down into the country, shall have power to enquire how such officers and lords have exercised their offices in this case, and to punish them whom they find that have not done that which pertain to their office.
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The quote was taken from the Duke Center for Firearms Law web page.
Something stands out in that “law,” claiming to be from 1792. I couldn’t put my finger on it, but our readers are much sharper than I am.
My memory is pretty poor, but I seem to remember that the American Revelation ended September 3, 1783. The author of this piece of “history” wants us to believe that nearly a decade later, North Caroline was still referring to the “King” and “Lords”?
This “regulation” does not pass the sniff test. I believe it to be fabricated. When it was fabricated, I do not know. But for the Second Circuit court to depend on it indicates that they did not treat their job seriously.
The Second Circuit then cites to [xCite item=”NCSEYPBD” pos=1]. This should be familiar to the Second Circuit, and to those of us in the Second Amendment Community.
Respondents next direct our attention to three late-18th-century and early-19th-century statutes, but each parallels the colonial statutes already discussed. One 1786 Virginia statute provided that “no man, great nor small, [shall] go nor ride armed by night nor by day, in fairs or markets, or in other places, in terror of the Country.” Collection of All Such Acts of the General Assembly of Virginia ch. 21, p. 33 (1794).14 A Massachusetts statute from 1795 commanded justices of the peace to arrest “all affrayers, rioters, disturbers, or breakers of the peace, and such as shall ride or go armed offensively, to the fear or terror of the good citizens of this Commonwealth.” 1795 Mass. Acts and Laws ch. 2, p. 436, in Laws of the Commonwealth of Massachusetts. And an 1801 Tennessee statute likewise required any person who would “publicly ride or go armed to the terror of the people, or privately carry any dirk, large knife, pistol or any other dangerous weapon, to the fear or terror of any person” to post a surety; otherwise, his continued violation of the law would be “punished as for a breach of the peace, or riot at common law.” 1801 Tenn. Acts pp. 260–261.
A by-now-familiar thread runs through these three statutes: They prohibit bearing arms in a way that spreads “fear” or “terror” among the people. As we have already explained, Chief Justice Holt in Sir John Knight’s Case interpreted this in Terrorem Populi element to require something more than merely carrying a firearm in public. See supra, at 34–35. Respondents give us no reason to think that the founding generation held a different view. Thus, all told, in the century leading up to the Second Amendment and in the first decade after its adoption, there is no historical basis for concluding that the preexisting right enshrined in the Second Amendment permitted broad prohibitions on all forms of public carry.
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In other words, the Supreme Court has already looked at this law and found that it does not support infringements.
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