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Room to Work

The Court did not much address the issue of machine guns, but the “common use” test that it prescribes will be problematic.  However, I think The Court has set itself up for an intellectual bind.  Machine guns are not in common use, but that’s entirely because of the 1986 prohibition on new registrations preceded by 18 years of heavy regulations inder GCA 68, and decades of regulation prior to that under the National Firearms Act.  In short, machine guns fail the common use test because government regulations and prohibitions make them uncommon.   I think this is an argument that could be raised later that could possibly ease restrictions.

I think there’s ample language in the opinion to argue that the second amendment is incorporated against the states, and that will be the next step.   Chicago, New York, and I think, even Massachusetts and New Jersey’s licensing restrictions can be construed to meet the standard of “arbitrary and capricious.”  In fact, I would view this somewhat similar to “seperate but equal”  In that the Civil Rights movement was later able to argue that seperate can never be equal.   I think one could perhaps argue that licensing, or having to get the government’s permission, can always be subject to arbitrary and capricious standards.

On the “bearing” of arms, I think The Court leaves open the possibility, and perhaps even suggests the possibility that the state must allow some form of carrying arms for self-defense.  This would presumably mean openly carrying of arms being legal everywhere, with states still free to regulate wearing of weapons.  But I would argue that perhaps the states can regulate concealed firearms, they may not outright prohibit them, since, given changes in society since the 19th century, that amounts to the destruction of the right.

My opinion, having read Justice Scalia’s opinion on this case, is that Heller is better than I had hoped for.  I think this lays effective groundwork for taking this issue forward, and the lower courts are going to have a difficult time skirting around it.

3 Responses to “Room to Work”

  1. i have to agree with just about everything you said there… this is actually much better than i had hoped for… what i liked the most is that in the last couple of pages of the affirmation they specifically mention that there are many issues left unaddressed and that those issues will be addressed in future cases…

    frankly this one ruling just created a new field in the legal world…

  2. Robert says:

    Nice day for Bill of Rights fans. Hard to believe four justices who sit on the court AREN’T.

  3. Rwilson452 says:

    It seems to me that waiting periods could be challenged. They could use an expression dear to the liberals. a quote from the late MLK. ” A right delayed is a right denied.”

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