That's interesting considering that a Supreme Court Justice (Warren Berger) said exactly that. And Berger was a conservative jurist!
In fact, Scalia said it wasn't unfettered.
Like most rights, the right secured by the
Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See,
e.g.,
Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the
Second Amendment or state analogues. See,
e.g.,
State v.
Chandler, 5 La. Ann., at 489–490;
Nunn v.
State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the
Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
26
We also recognize another important limitation on the right to keep and carry arms.
Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also
State v.
Langford, 10 N. C. 381, 383–384 (1824);
O’Neill v.
State, 16Ala. 65, 67 (1849);
English v.
State, 35Tex. 473, 476 (1871);
State v.
Lanier, 71 N. C. 288, 289 (1874).
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the
Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the
Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
I don't want to get in the middle of your guys' pissing match because:
1. From a legal perspective the totality of the issue is more nuanced than either one of your two positions, IMO;
and more importantly,
2. I've been drinking good Eastern Oklahoma moonshine at an Agents' conference at Western Hills State Lodge for the past few hours and I'm just not up to it right now.
On the issue of the present state of the law of the 2nd Amendment re: being fettered or unfettered, even the most conservative SCOTUS Justice in 2nd Amendment recognizes and affirms it is fettered....to a point.
