There have been some lower court judges, particularly in the 9th Circuit, who correctly identified Heller’s text and tradition standard as the appropriate standard of review and applied that standard in their writings. The argument made there was that a state couldn’t simply call a prohibition it put in place in the 1990s a longstanding, traditional regulation.Originally Posted by ccmdfd
Justice Thomas’s review gave the most weight to historical regulations immediately prior to the Revolution and those shortly after, with some deference to those which came in the 19th century. A mere handful of examples of regulation is inconsistent with a deeply rooted tradition. As I recall, we don’t start seeing regulation of the type of firearm until the 1920s, and those (targeted at machine guns) sometimes stopped short of a total ban and appeared to target their use in crimes of violence; the first true magazine ban doesn’t appear until 1990, though there are some regulations from Michigan, Rhode Island, Ohio, and Washington, D.C. dating back to the mid-1920s (limiting weapons with a “firing capacity” beyond a certain number of rounds), but those are not perfect analogues. My suspicion, given a faithful following of Justice Thomas’s opinion, is that the NFA regulations are at least in play. However, I would not call an attack against it a slam dunk. I think magazine bans and AWBs are far easier fodder given this new ruling.
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