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View Diary: Scalia's Analysis Scraps "Right to Bear Arms" (35 comments)

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  •  There is actually an easy way to resolve this, (4+ / 0-)

    one that does not rely on impossible-to-determine "original intent", or the easier to determine, but still vague, "original public meaning."

    Unfortunately for the gun control side, this won't get you where you want to go, but it is easily described and fits neatly within our system of judicial scrutiny for fundamental enumerated rights.

    The line can be cleanly drawn where the simple presence of the weapon in question, without reference to human actions or intent, presents a danger to the owner's neighbors,

    Explosives clearly fall on the far side of this line, to say nothing of chemical, biological, or nuclear weapons. Cartridge-firing small arms, regardless of their shape or rate of fire, clearly do not. Artillery pieces are in something of a gray area under this analysis, at least at first glance. But coser inspection will show that in this case, the real issue is not the weapon itself, but the ammunition. Solid practice shot is nothing more than a large bullet. The powder itself is not dangerous. (I've got far more smokeless powder in my reloading cabinet than any one artillery shell would hold... loading for multiple calibers of handguns, shotguns and rifles will do that.)

    Under any strict scrutiny analysis of the right to keep and bear arms, bans on the possession of weapons whose physical nature makes them a danger in and of themselves  will survive. Objects below that threshold get very murky, very fast.

    --Shannon

    "It is better to die on your feet than to live on your knees." -- Emiliano Zapata Salazar
    "Dissent is patriotic. Blind obedience is treason." --me

    by Leftie Gunner on Sat Oct 06, 2012 at 08:26:51 PM PDT

    [ Parent ]

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