The technical holdup is essentially one of emphasizing due process and ignoring privileges and immunities, which to a layperson seems a bit like arguing how many angels can dance on the head of a pin. [More]
There’s a more basic argument that no one is considering, where a leading authority at the time considered the Second Amendment to be a restraint on both the federal government and the states.
In the days of the post-War of Northern Aggression South, here was a flurry, maybe even a spate, of laws passed simply to effect the disarmament of freed former slaves. The goal was to make them sitting ducks for the post war militant wing of the Democratic Party, sometimes known as the KKK.
The purpose of a “historical tradition” window circa 1791 was to capture a sense of just what infringements the folks who insisted upon “shall not be infringed” considered to be perhaps evil but also necessary. That actually makes a whole lot of sense.
But what is the point of another window circa 1868, if not to capture in it those laws designed to victimize the newly freed blacks, especially in light of SCOTUS explicitly saying those very laws cannot be cited in a brief?
Sometimes this Vulcan 3D chess makes my head hurt!
The lack of clear, timely and decisive action by the SCOTUS in upholding the Second Amendment encourages the Congress and legislatures of the various states to persist in enacting new law repugnant to the U.S. Constitution and encourages them not to revoke current law that is repugnant to the U.S. Constitution. Given the number of law school graduates and members of the bar among them who should be trained in Constitutional Law, this does not say good things about their educations or their ethics in their willingness to do this.
Until quite recently, the legal profession and the law schools they controlled taught a version of the Second Amendment that would not have been recognized by the Founders.
Only since the advent of Emerson, Heller, McDonald, Bruen, and others have they been drug by their heels, kicking and screaming the whole way, towards some semblance of the Second Amendment as the Founders intended it to be.
For just a moment, consider where we would be today if a Senate committee chaired by one Sen. Joseph R. Biden had managed to keep Clarence Thomas off the Supreme Court.