Dave Hardy of Arms of the Law (and one author of amici briefs in Heller) participated in an online chat on the Heller case last Friday. I logged in to get a few of my own questions answered.
I can't really take credit for this question. I think it was Snowflakes in Hell that pondered it. But I can take credit for asking someone who might be able to answer.
TriggerFinger: Other bloggers have written about the inherent contradiction in allowing bans on arms not in common use when the most obvious class of such arms are not in common use precisely because of federal regulations that amount to a ban on new manufacture of weapons in this class. Tactically I understand that that's NOT the issue to press right now. However, the longer the '86 ban on top of the '34 and '68 restrictions are in effect, the weaker our case under "in common use." How do we get out of the bind, when the time comes? Or do we just have to hope for a better court or a legislative fix?
The comparison to reasonable expecation of privacy in wiretapping laws is a good one. I've run into similar issues before; consider, for example, the transmission mechanism of email. As currently standardized, email is about as secure as a postcard -- anyone who can look at the email while it is "in transit" from sender to recipient can read the contents. This generally includes at least two internet service providers (including all their staff) and often a number of other "backbone" providers who link the two isps. Usually, once it arrives, an administrator can read the contents. Depending on the network design, it's possible that anyone on the local network (for example, anyone on the same floor of the building or same group of offices) could read the email as it was transmitted. For web-based email, logging in to read the email provides yet another opportunity to learn the contents.
David H (davehardy): That IS a logical problem! We have a similar one in the 4th Amendment. Prohibition on unreasonable "searches." How does that restrict wiretaps, etc. that don't involve a search? Court has held it extends to cover a "reasonable expectation of privacy," e.g. on the telephone. That, too, has a circularity problem. If the gov't announces it is randomly tapping every phone, does anyone have a "reasonable" expectation of privacy. I suspect it comes under the "you know what we mean" doctrine of judicial construction.