Speculating on where we go next...

Snowflakes in Hell speculates a little:
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 agree here.  We're going to have to bring a separate case for this at some point.  That case is going to rest on whether "in common use at the time" means that the government can ban something that's not in common use because it has been banned for 70 years.  I can't imagine an honest court letting that stand, but we only got 5 votes for a much less scary ruling today.  So let's not bring that case until we've added some precedents and case law and friendly judges, mmmkay?
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.
Good thoughts.  The NRA has already announced that it intends to challenge the Chicago gun ban - that's an incorporation case and is the obvious next step. Pity they weren't so willing to help out with Heller at first.

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.

There's nothing that really hints at that in the syllabus, so I'll have to read the whole decision before deciding whether I agree or not.  But it's a better take on the result than I got.

This entry was published Thu Jun 26 13:48:03 CDT 2008 by TriggerFinger and last updated 2008-06-26 13:48:03.0. [Tweet]

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