My statement was a challenge to anyone to cite any provision of the Constitution that would authorize any other kind of registration. I can find none, other than the authority over federal enclaves of Art. I Sec. 8 Cl. 17 and of federal territories and possessions under Art. IV Sec. 3 Cl. 2, authority which does not extend to the states. If one accepts that the intent of the 14th Amendment included extending the federal question jurisdiction of federal courts to cases between a citizen and his state over a deprivation of the rights recognized in the Second Amendment, which is supported by the legislative history, such as that cited in http://www.constitution.org/col/intent_14th.htm , then the same restrictions on federal regulation and registration of firearms would apply to the states also.
It has been contended by some that the phrase "shall not be infringed" forbids all kinds of regulation or registration, even the kind that is exercised upon persons while in actual militia service. Others argue that a right may be subject to "reasonable regulation", which apparently means regulation that does not impose an "undue burden" on the exercise of a right. But that opens the question of what would constitute a "reasonable" regulation, and when we examine founding-era history and the Constitution, we only find the kind of regulation that enhances the effectiveness of militia. One could build a case for other kinds of federal regulation based on the Commerce Clause that might not impose an undue burden, especially if one accepts the line of precedents leading to Wickard v. Filburn, which is what the federal government presently seems to do. Personally, I reject that entire line of Commerce Clause jurisdiction creep, going all the way back to Gibbons v. Ogden, but not all lawyers are willing to take such a radical position. As a historian and philosopher, I can. But I find that all such federal legislation, and most state legislation, does place an undue burden on the exercise. I have argued that the RKBA could be disabled specifically as any other right may be, by judicial due process for each individual, either to resolve a conflict of rights between private parties, or as a legislated penalty for a public offense, but that a legislated disablement, even of the class of "convicts", is a bill of attainder and/or ex post facto law.
As for Eugene's point about lawyers and judges not being willing to read entire treatises, I would have to say that no one should pretend to be a competent constitutional scholar who has not immersed himself in most of the primary sources, which is a lot of reading. Subtle changes in the meanings of words between the Founding Era and today are not captured in dictionaries, law review articles, or other secondaries. One has to get into the heads of the Founders, and there is no shortcut to that.
--Jon
Peter Boucher wrote:
"It is not legal argument, but historical argument that involves historical precedents that inform legal interpretation."
I think that if you want to make an argument that registration of arms is permissible under Congress' power to organize the militia, you'll not get a lot of objections, but you argued that this is the ONLY constitutionally permissible type of gun registration, which is an extraordinary claim, requiring extraordinary evidence.
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