At Lawfare, Amanda Tyler (Berkeley): Rahimi, Second Amendment Originalism, and the Disarming of Loyalists During the American Revolution. From the introduction:
Recently, the Supreme Court heard arguments in its latest blockbuster Second Amendment case, United States v. Rahimi, and we now wait to learn whether the Court will strike down as unconstitutional federal legislation criminalizing possession of firearms by persons subject to certain state court-issued domestic violence protective orders. As the Court decides the case, it will confront a potentially consequential piece of American history in its analysis—namely, whether the many laws enacted during the Revolutionary War disarming those “disaffected to the American cause”—that is, “loyalists”—support upholding the law at issue in Rahimi, 18 U.S.C. § 922(g)(8). It is therefore fair to say that some of this country’s earliest national security laws lie at the heart of the case.
The government relies heavily on such laws as concrete historical precedent for the statute at issue, while Rahimi’s lawyer contends those Founding-era laws are irrelevant because, the argument goes, loyalists fell outside the political community. As demonstrated below, the latter position is simply wrong. Instead, the Founding generation came to view those disaffected to the American cause as very much falling within the political community—a problem that occasioned a host of legislative reactions all centered on protecting the national security of the newly independent and fledgling state. On close study, the laws at issue, targeting such persons and stripping them of any right to bear arms based on general legislative assertions of their dangerousness, lend strong support to upholding the law at issue in Rahimi.
Posted at 6:06 AM