Replies

Read more carefully, the language around “weapons or activities” and “arms and activities.” Also note the references to Heller and Volokh.

Fortunately, I have a copy of the entire thing right here. There are exactly 3 times the word "activities" is used. All are contained in the following paragraph.

In my view, the latter is the better way to approach the problem. It is one thing to say that certain weapons or activities fall outside the scope of the right. See District of Columbia v. Heller, 554 U.S. 570, 627 (2008) (explaining that “the sorts of weapons protected were those ‘in common use at the time’” (citation omitted)); Ezell v. City of Chicago, 846 F.3d 888, 892 (7th Cir. 2017) (Ezell II) (“[I]f ... the challenged law regulates activity falling outside the scope of the right as originally understood, then ‘the regulated activity is categorically unprotected, and the law is not subject to further Second Amendment review.’” (citation omitted)); Ezell v. City of Chicago, 651 F.3d 684, 702 (7th Cir. 2011) (Ezell I) (drawing an analogy between categories of speech, like obscenity, that fall outside the First Amendment and activities that fall outside the Second Amendment). It is another thing to say that certain people fall outside the Amendment’s scope. Arms and activities would always be in or out. But a person could be in one day and out the next: the moment he was convicted of a violent crime or suffered the onset of mental illness, his rights would be stripped as a self-executing consequence of his new status. No state action would be required.

I really don't see much there. Anything "in common use" would certainly apply to the AR platform, and the associated standard magazines.

So, lets look at references to "Volokh"... (I quote as much as required for context)

The following paragraph actually immediately precedes the paragraph above

At the outset, it is worth clarifying a conceptual point. There are competing ways of approaching the constitutionality of gun dispossession laws. Some maintain that there are certain groups of people—for example, violent felons—who fall entirely outside the Second Amendment’s scope. See, e.g., Binderup v. Attorney Gen. U.S., 836 F.3d 336, 357 (3d Cir. 2016) (en banc) (Hardiman, J., concurring in part and concurring in the judgments) (“[T]he Founders understood that not everyone possessed Second Amendment rights. These appeals require us to decide who count among ‘the people’ entitled to keep and bear arms.”). Others maintain that all people have the right to keep and bear arms but that history and tradition support Congress’s power to strip certain groups of that right. See Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. REV. 1443, 1497– 98 (2009) (describing these competing views). These approaches will typically yield the same result; one uses history and tradition to identify the scope of the right, and the other uses that same body of evidence to identify the scope of the legislature’s power to take it away.

The following is from the section discussing the ratification of the 2nd Amendment...

Several things bear emphasis here. First, none of the relevant limiting language made its way into the Second Amendment. Second, only New Hampshire’s proposal—the least restrictive of the three—even carried a majority of its convention. See 2 SCHWARTZ, supra, at 628, 675, 758. Third, proposals from other states that advocated a constitutional right to arms did not contain similar language of limitation or exclusion. See Kates, 82 MICH. L. REV. at 222 (citing 1 ELLIOT , supra, at 328, 335). And finally, similar limitations or exclusions do not appear in any of the four parallel state constitutional provisions enacted before ratification of the Second Amendment. See Eugene Volokh, State Constitutional Rights to Keep and Bear Arms, 11 TEX. REV. L. & POL. 191, 208 (2006) (North Carolina, Pennsylvania, Vermont, Massachusetts). All that said, these proposals may “indicate some common if imprecise understanding at the Founding regarding the boundaries of a right to keep and bear arms.” Marshall, 32 H ARV. J.L. & PUB. POL’Y at 713. And at a minimum, the fact that they are routinely invoked in support of blanket felon disarmament makes it necessary to consider them.

Another Volokh mention, arguing against the idea that any felon should be disarmed merely because he is a felon...

Slaves and Native Americans, on the other hand, were thought to pose more immediate threats to public safety and stability and were disarmed as a matter of course. See MALCOLM, supra, at 140–41; WINKLER, supra, at 115–16 (noting “forcible disarmament” out of “fear that these groups would use guns to revolt” or otherwise threaten the “public safety”); DECONDE, supra, at 21–22 (noting “anxiety that slaves would rebel”). And this practice of keeping guns out of the hands of “distrusted” groups continued after the Revolution. For example, many states even constitutionalized the disarmament of slaves and Native Americans. See Volokh, 11 TEX. REV. L. & POL. at 208–09. 7

In sum, founding-era legislatures categorically disarmed groups whom they judged to be a threat to the public safety. But neither the convention proposals nor historical practice supports a legislative power to categorically disarm felons because of their status as felons.

Another mention...

State constitutions protecting the right to bear arms do not follow a similar pattern. Between 1790 and 1820, nine states enacted their own right-to-arms provisions in their constitutions. See Volokh, 11 TEX. REV. L. & POL. at 208–09 (four more had enacted such provisions prior to 1790). None of those provisions made an exception for criminals. Id. And notably, seven of those nine states explicitly excluded or authorized the exclusion of certain criminals from the right to vote. Compare id. (identifying Kentucky, Ohio, Indiana, Mississippi, Connecticut, Alabama, and Missouri as seven of the nine states with right-to-arms provisions in their constitutions by 1820), with KEYSSAR, supra, at tbl. A.7 (the same seven state constitutions specifically excluded certain criminals from the right to vote). The same pattern held true in 1857. Compare Volokh, 11 TEX. REV. L. & POL. at 209–10, with KEYSSAR, supra, at tbl. A.7. There is no basis, then, for assuming that a virtue requirement on the right to vote applies equally to the right to keep and bear arms. See Binderup, 836 F.3d at 372 (Hardiman, J., concurring in part and concurring in the judgments) (“We have found no historical evidence on the public meaning of the right to keep and bear arms indicating that ‘virtuousness’ was a limitation on one’s qualification for the right—contemporary insistence to the contrary falls somewhere between guesswork and ipse dixit.”).12

There are so many references to Heller, I'd have to post the whole thing. I do not see what it is that you are complaining about.