We’ve been sort of joking about high-capacity soda cups, but a commenter pointed me to this piece by John Hinderaker of PowerLine that actually makes a serious case that the two are very similar. I agree, and I think it’s no coincidence that the architect of the high capacity soda cup ban is also putting his money and capital behind gun magazines he deems to be too large. It’s the same nanny instinct, the same conceit, and the same cultural condescension at work.
4 thoughts on “High Capacity”
Not only is it â€œsame nanny instinct, the same conceit, and the same cultural condescension at work,â€ so too will it be the same legal doctrine that overturns most of the proposed new gun controls.
We’ve become much too infatuated with the â€œcommon use standard,â€ investing it with magical powers that will save us from every crackpot gun control idea. The reality is that the Heller Court had something broader and less specific in mind.
Like the successful legal challenge to Bloomberg’s supersize soda ban, more conventional approaches will likely prevail. Sadly, no organization currently supporting Second Amendment cases is underwriting anything other than â€œswing for the fencesâ€ absolutists cases.
So be prepared for more losses, along with political appeals to the so-called â€œHeller Five.â€
Not really, because the non-delegation clause of New York’s constitution played a heavy role in overturning the soda ban. We won’t have that factor with the SAFE act, or any of the Colorado acts. There is the further argument that the law doesn’t pass rational basis, and some of our scholars have made that argument with the proposed gun bans, but I think that’s a far narrower reading than the Courts have traditionally applied. I’d rather hang my hat on the common use test, as I don’t see what else the Court has provided us that we can use. If they had something broader in mind, I don’t think they’ve said much about it.
Well, sure, â€œcommon useâ€ would be a great approach if it could really work. But it can’t â€“ at least not in the way that’s most talked about (e.g., AR-15s are immune from regulation because they’re the most popular rifle in America today; magazine capacity can’t be limited to <10 rounds because most modern handguns are designed to accept larger magazines, etc.). Jurisprudence simply isn't going to be based upon last year's market research from the NSSF (or any other private organization). If you don't believe this, go listen to some of the circuit court oral arguments where this interpretation has been pushed. To call the response â€œskepticalâ€ would be far too polite.
And â€œa far narrower reading than the courts have traditionally appliedâ€ makes no sense when talking about judicial review of laws impacting fundamental rights. The deference accorded to routine legislation simply goes out the window when fundamental rights are involved â€” and that includes the Second Amendment, too.
The real problem is that no one litigating armed self-defense rights cases is yet making these arguments. And that makes most of these cases about politics rather than law.
I’m joking about it, but it is really the same attitude and argument:
1. Public safety is imperiled.
2. Yes, you can buy two 16 ounce cups of Coke, but it slows you down.
3. The law applies to some high calorie drinks, but not even higher calorie drinks that are also readily available.
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