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Greenlee: Americans Shouldn’t Have to Prove They Have the Right to Keep and Bear Arms

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(JWT for TTAG)

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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. As James Wilson famously declared while discussing a bill of rights during the constitutional debates, “the congressional authority is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of union. Hence it is evident, that . . . every thing which is not given, is reserved.” Presumptions favor liberty, not governmental authority.

Moreover, there are over 300,000 federal crimes—so many, in fact, that the Department of Justice is unable to count them. The number of state and local laws throughout American history are countless as well. It is reasonable to infer that there must be a reason why none of these hundreds of thousands of laws has touched upon a common practice [home made guns] —especially when the activity is associated with a constitutional right.

Joseph Greenlee in Text, History, and Tradition: A Workable Test that Stays True to the Constitution

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