Professor Eugene Volokh looks at the low hanging fruit in terms of laws that are unconstitutional under the Second Amendment. I don’t have much to add, and agree many of the items he mentions ought to be up for consideration. I do want to comment on this, however:
Bans on so-called assault weapons, for instance, strike me asÂ unwise, but they donâ€™t themselves practically interfere with self-defense in a substantial way: people remain free to have guns that are just as effective for self-defense.
Isn’t this the same argument that the District of Columbia made in the Heller case? They were free to ban handguns because the people still had shotguns and rifles as options. Who’s to decide what burdens self-defense in a substantial way? If the vast majority of self-defense incidents only require 0 to two shots, why can’t the state outlaw anything that isn’t a two shot derringer, or a double barrel shotgun? If you use a test like that, it’s no real restraint on government, and requires judges to make decisions they have nearly no expertise to make; what does or doesn’t constitute a substantial burden on self-defense. The common use test, for all its flaws, is far preferable, because then the people get to decide.