Technology and Heller
Discussion about technology making Heller obsolete here and here.
My thoughts are that arms doesn’t just mean guns. Of course, part of Heller stated that common weapons were protected. One way to limit more technologically advanced weapons would be to ban them so that they never become commonly used, like the .gov did with machine guns.
July 3rd, 2008 at 9:26 am
I’m wondering how long it’s going to take the courts to sort out that mental straight jacket of the common use test. I stand by my thought that the way out is if the .gov bans a firearm, and exempts police officers from the ban/regulation. If it’s not useful for self-defense, why are you letting the police have them? Police certainly don’t need weapons that are “unusual and dangerous” do they?
As long as the pinnacle of self-defense technology is the firearm, the common use test works fine. But as soon as governments move to ban “unusual” and “not common” new technology, it’ll start falling apart if the second amendment is really to have any true meaning.
Personally, I think the standard needs to be “of unusual destructiveness” and The Courts should scrutinize any regulation which exempts police.
July 3rd, 2008 at 9:41 am
Firearms eventually COULD be obsolete…after all; when’s the last time you saw someone swing a mace?
July 3rd, 2008 at 10:16 am
Joe Horn shot two men who had just burgled his neighbor’s home in Houston earlier this year; he was just no-billed by the Grand Jury this week. One of the men he shot was carrying a crowbar (or tire iron, depending on which news source the story is from). I contend a crowbar is just about a perfect modern analogue to a mace. And if Joe Horn had not had a shotgun, the crowbar could have worked just like a mace.
As to the “common use” and “unusual destructiveness” test, I think you are looking at the issue from the banners’ perspective. How about you think about it from Justice Steven’s perspective – to prepare for militia service, one must be familiar with semiauto guns using “appropriately-sized” magazines of ammo. Or how about you look at Scalia’s “common use” from a consumer perspective – the cheapest, most effective firearm around the world is likely to be the AK for years to come. A little bit of internationalism could not hurt here, could it?
Or more seriously, as much as possible, you don’t let the government define what a citizen can own. You let the government define what uses are illegal (firing in public inside a city limit without a self-defense reason, for example). Then you decide if an FAL or AR or AK or Barrett 50BMG is your chosen rifle, and which semiauto pistol you want to carry concealed (with a shall-issue-without-any-BS-license) or openly (no license). Simpler, and results in more uniform laws across the nation.
July 3rd, 2008 at 10:16 pm
I wrote an analysis of Heller and had it posted at Kevins the Smallest Minority site that addresses the definition of arms in the Heller case.
July 4th, 2008 at 1:52 am
Sebastian,
The problem, as always, is in who gets to define “of unusual destructiveness”.
Claymores, RPGs, LAW rockets, etc… are highly useful for an individual infantryman, and his militia counterpart. Would you define them as unusually destructive? How about recoilless rifles and cannon? Again, very useful for a milita, and historically not a problem as Congress was empowered to issue Letters of Marque.
I will admit that I am a radical and I tend to think that arms actually means arms, as in any and all items that can be used as weapons.
Then again I tend to think that nukes are pretty much a non issue as safety requirements are pretty stringent and any leaked radiation is a civil and/or criminal suit waiting to happen. The same thing with bio-chem weapons. If you want to own a barrel of VX gas and it leaks, you had better have DEEP pockets. Just like with firearms the owner is responsible for the effects of his weapons.
July 5th, 2008 at 9:22 am
I suspect that if you have a leaking barrel of VX gas the depth of your pockets may be the least of your problems.