I wonder whether judges issuing recent rulings regarding restrictions on assault rifles [AR-15 and similar] that seem twisted and contrived are doing so from ignorance or dishonesty.
For example, a federal judge in Illinois issued an injunction against enforcement of a ban on possession and use of automatic assault rifles, including "ghost" guns [operational weapons that can be manufactured via 3D printing and without registration numbers, i.e., effectively untraceable] Fortunately, the 7th Circuit overturned the injunction, but one of the judges dissented and bought into the lower court argument that the ban was not consistent with "historical precedent" and the 2nd Amendment. Thise trope was also indulged by the conservative majority of SCOTUS that restrictions on gun ownership is "unconstitutional" because the restrictions are inconsistent with "historical precedent." What rational "legal principle" accounts for this so-called "historical precedent" is very obscure if one exists at all.
Automatic rifles neither existed nor were contemplated when the Constitution was drafted and established as a founding document. Certainly, there is no evidence that even the wildest futurist Sci-Fi authors in the 18th century never contemplated computer-based 3D printing of assault weapons. There is no rational basis for an "originalist" interpretation of the 2nd Amendment in this context. The AR-15 was manufactured solely for military use in 1958 and did not become available to public until 1973, after military production fell off. It stretches the bounds of credulity to argue that the 2nd Amendment, when written could be read to contemplate protection of ownership and public use of such weapons.
So, if "historical precedent" has any legal merit or weight, then rational consistency would dictate that laws established as late as the 1970's should have pre-emptive validity. In that case, the SCOTUS would have to admit blatant hypocrisy in overturning Roe v Wade, which had been the law of the land since that era and striking it down would be "inconsistent with historical precedent." Otherwise, the Court and any other judges using the Constitutional "historical precedent" argument would have to either show that the context sub-judice was extant and actually considered at the time the Constitution was drafted or admit that the argument and rationale is a sham.
I hesitate to raise the argument, in light of the insanity of the current gun rights zealotry. But I will do so, purely hypothetically, to show the absurdity of such positions. If automatic assault weapons, which were never contemplated in terms of use or public safety risks at the time the Constitution was drafted, cannot be banned because of the 2nd Amendment, then the same argument would apply to hand grenades, RPG launchers, and armed drones. None of these were conceived when the 2nd Amendment was adopted, but all are weapons that could be owned and used by an individual, potentially for self-defense. There would be a very long list of similar very lethal weapons that were technologically developed beyond the single shot rifle and pistol that existed in 1800. [Ironically, no one apparently has argued that the 2nd Amendment protects possession and use of a cannon, which did exist at the time. This would support an argument that original protection did not extend to EVERY type of weapon.]
A more honest and rational analysis would have to consider whether the legal restriction on assault weapons possession is rationally related to the legislative purpose of public safety. If not, it would be potentially "arbitrary and capricious" regulation. The assault rifle has no purpose or function other than to maximize killing of persons. It is not a hunting instrument, and if target practice were a function, then there would be no objection to restriction of their use to licensed gun range facilities, rather than personal possession at home and elsewhere. Even police use of assault rifles is regulated by restrictions on when and where they can be used in a quasi-military operation. So, reasonable restriction on assault weapons should only be contested by whether the restriction is related to a public safety purpose, and the extent to which the restriction rationally supports that purpose.
To perhaps belabor the point. consider that the "right" to liberty and control of one's person and property was contemplated in the Declaration of Independence and multiple Amendments to the Constitution [including 1st, 4th, and 5th for example]. A woman's right to control medical decisions regarding her own body could not be infringed if using the "historical precedent" argument. Of course, a potential flaw in the argument might be that women were not considered first class citizens in the archaic 18th century US. Although abortion did exist at the time, the fetus would presumably be the "property" of the man, as was the woman, who cold control such decisions. But by 1919, the right of women to vote solidified the shift from property to person that had evolved over the preceding century. Multiple states have adopted constitutional provisions establishing a woman's right to control and make decisions about her body and reproductive health. Thus, whether using originalist or evolving historical precedent, the decision to overturn Roe v. Wade is inconsistent and dishonest. The only potential "public safety" issues would be a scientific determination of "viability" of an unborn child, which Roe v. Wade addressed, or medical malpractice in performance of abortion. The latter was already regulated, and statistical evidence and experience showed that banning legal abortions only INCREASED morbidity and reduced safety.
The 7th Circuit ruling may well be appealed to the SCOTUS. Let us hope that the high Court will avoid reliance upon the inadequate and dishonest trope of "historical precedent" and allow the ban on public possession and use of inherently dangerous assault weapons, and especially including "ghost guns" that are not even registered.
