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View Diary: Thwarting Gun Violence (104 comments)

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  •  Yep. (3+ / 0-)
    Recommended by:
    BlackSheep1, rockhound, Elmar

    Read the decision of the Court in McDonald. The right to keep and bear arms is explicitly called a "fundamental" right. That phrase has significant implications for future 2nd Amendment jurisprudence.

    Specifically, when dealing with fundamental rights, "need" is not a relevant parameter when deciding whether or not, and to what extent, government can determine the scope of that right.

    Gun control advocates are going to have to change their arguments, because the ground has shifted. You're probably going to have to deal with a strict scrutiny standard, at least as far as the Constitutionality of laws affecting the keeping and bearing of arms by the otherwise law-abiding citizen for self defense is concerned. If the evolving Circuit Court doctrine is followed by SCOTUS, that, plus intermediate scrutiny for laws that do not touch the core right, is likely to be the standard.

    I don't see how a blanket magazine capacity restriction can meet that standard.

    --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 Mon Jan 24, 2011 at 12:17:33 PM PST

    [ Parent ]

    •  Read Heller (0+ / 0-)

      where it says regulation of that "fundamental right" is not prohibited.

      Planting my landmines, now.  With surface-to-air missiles for alien invaders.

      •  Nor is regulation of any other fundamental right. (1+ / 0-)
        Recommended by:
        Elmar

        But it remains true that the level of permissible regulation of fundamental rights is much lower than that allowed for other things.

        In particular, "rational basis" review is explicitly ruled out in Heller. The actual standard of review is yet to be determined, but I have good reason to think that it's going to be far more to my liking than to yours.

        Like it or not, you're going to have to frame your arguments within that more limited context if you expect to get anywhere.

        --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 Mon Jan 24, 2011 at 12:51:13 PM PST

        [ Parent ]

    •  BTW (0+ / 0-)

      you are right that "need" isn't a relevant parameter. However, public safety is.

      How'd that work out in Tucson?

      In reality, 30 round mags aren't needed and they constitute a public safety issue.  I'm sure you can think of some scenario--Red Dawn?--where a 30 round mag is necessary.  But reality tends to trump imagination.

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