Push wanted to talk about this in a different thread since it was a tangent to his automatic weapons court challenge thread.
For those that subscribe to the theory that the Second Amendment codifies the right of citizens to keep and bear arms to protect themselves from a tyrannical government, what arms are citizens entitled to as a matter of right?
All of them?
If not all of them, what is on the list, and what is not allowed? And what is the basis for the legal restriction if a citizen is not entitled to all of them?
(And ignore any modern precedents that might impact the analysis. In this thread were all operating under a theory that the Second Amendment is about protecting the right to resist government tyranny by arms, not private self-defense or hunting or anything like that.)
To put it a different way, if you're going on a date you might want to pre-purchase a condom to protect yourself just in case you get lucky, but you aren't going to walk around with it on. When the magic's about to happen though, brandish away.
So, let's make sure I am clear on your position - you believe the Second Amendment entitles citizens to any and all arms, and the government (at any level) does not have the authority to place any kind of restriction on a citizen's right to such arms?
I understand your position, but that has more to do with what the individual chooses* to do - does the Second Amendment allow any restrictions on the "bearing" of a grenade launcher on a public street (under pain of criminal or civil penalty) out of a fear that someone would carry it in the street to do harm with it (i.e., outside of using it to defend the state, and instead to, say, blow up the house inhabited by a rival gang)?
No, this is absurd and ahistorical. The Constitution doesn't explicitly specify whether or not all conceivable arms are protected under all conceivable circumstances. If the absence of these qualifiers forces a default adoption of absolutism -- and that's exactly what's being argued with the mechanistic textualist quotation of the line "shall not be infringed" -- then:
-- If a court tries to stop the brother of a guy about to be sentenced -- probably to the death penalty -- from bringing a loaded 12-gauge and a potato sack full of pipe-bombs into the courtroom, he can gain uninhibited entry by simple saying, "shall not be infringed." After all, just as the Constitution doesn't specify that there are certain arms open to infringement, it does not read "shall not be infringed -- except in certain places and by certain authorities." Our default to ahistorical absolutism requires the federal government to...wait for it...not infringe ever, anywhere.
-- If I walk into a crowded theater that isn't burning and yell "fire," and ten children die in the stampede, and then I explicitly admit malice aforethought, I can't be sanctioned by the authorities. After all, the Bill of Rights protects against "abridg[ment] [of] freedom of speech." It doesn't protect some speech, and it doesn't list any exceptions. It says no punishing citizens for speech. I spoke -- "fire!" -- and I can't be punished.
-- If I sit in court, during my own trial, and continuously/unendingly recite, out loud, a repeating loop of the lyrics to "Niggas in Paris," I can't be held in contempt of court, and nobody can do jack shit about it. After all, the Bill of Rights protects against "abridg[ment] [of] freedom of speech. It doesn't say some speech, and it doesn't say except in such and such cases -- it says no punishing citizens for speaking. I spoke, and I can't be punished.
-- If I stand up in class at my public university, during an exam, and begin reading the answers aloud...nobody can do a goddamn thing about it or sanction me in any way. After all, the Bill of Rights protects against "abridg[ment] [of] freedom of speech. It doesn't say some speech, and it doesn't say except in such and such cases -- it says no punishing citizens for speaking. I spoke, and I can't be punished.
If your understanding of American law leads you to irrational absurdity, your understanding of American law is wrong. It's as simple as that.