Professor [Jake] Charles mistakenly asserts that “[text, history, and tradition] and arguments like those about self-made guns imply that government always regulates to the outer limits of its power.” To the contrary, THT analyzes centuries of history to see how many governments (local, state, or federal) ever extended their power during that time to the extent the government currently being challenged has.
He concludes that “[i]f historical argument is going to take a prominent place in Second Amendment analysis, it ought to be based on evidence of widespread understanding that a past practice was protected as a right, not simply that it existed without regulation.” Placing the burden on the people to prove the existence of their constitutional rights fails to appreciate the nature of the United States government.
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