[pcfixer]

The use of concealed carry limitations in Robertson v Baldwin is actually very similar to the use of such limitations in Heller: as an example (out of several) to show that Constitutional protections sometimes have limits, and thus that the Constitutional protection in question (the 13th Amendment) also has limits (such that the contract of a seaman would not violate the 13th Amendment).

Now, while the concealed carry limitations were contemporary at the time of Robertson, it's important to note that Heller uses them solely in historical form, to note that the right was historically regarded as having limits.

The use of the 2nd Amendment example was not itself a necessary precondition for the holding in Robertson, most especially because of the wording at the beginning of the paragraph in which it's used ("But we are also of opinion that, even if the contract of a seaman could be considered within the letter of the Thirteenth Amendment, it is not, within its spirit, a case of involuntary servitude."), which clearly shows that the entire line of inquiry the Court was using there was unnecessary for its conclusion. That means that Robertson is not precedential with respect to its claim about the 2nd Amendment to the degree that an actual holding would be.

If Robertson were indeed precedential in that way, then the Court would not have limited its statement in Heller to one that courts historically regarded the right as having some limitations, with concealed carry prohibitions being among those limitations. Rather, it would have directly stated that concealed carry prohibitions are among those limitations today, precisely because of its own prior jurisprudence (but only if it regarded its prior jurisprudence as remaining valid).


In any case, precedent is valid only to the degree that the reasoning behind that precedent is valid. The state courts explicitly stated their reasoning for upholding concealed carry bans. That reasoning was that, as a rule, only criminals would consider carrying concealed, and they do so for nefarious purposes, and therefore a ban on the act is justifiable because they regarded the nature of the act itself as nefarious. But the actions of tens of millions of law-abiding citizens who peacefully carry concealed every day today disproves that reasoning. Without the reasoning behind it, the historical precedent is invalid. A court which insists on using invalid precedent as the basis of its decision is a court which is acting in an arbitrary and capricious manner.

A proper free society does not impose limits on the everyday peaceful actions of the citizenry solely due to the actions of a much smaller number of criminals. That is what a police state does. If we forbade every action that is common to both citizens and criminals, the resulting set of available actions left would be vanishingly small. To do that would be to straitjacket the citizenry. It is plainly invalid to do such a thing, and that is one reason that carry bans of all modes are facially invalid.

From a current post from Maryland "mdshooters".