Sunday, November 25, 2007

Some thoughts on the DC gun case, as expressed in comments at Volokh Conspiracy,
arbitraryaardvark (mail) (www):
Brett Bellmore: A label that has been used for a stricter than strict scrutiny standard of review is the "absolute bar rule", which says that if the (Maryland) constitution says you can't do x, then you can't do x. It's bveen awhile since I reviewed the case law, but I think it came up in the context of equal protection on the basis of sex.
This thread has me thinking about Roe, Griswald, Lawrence, and a woman's right to make a healthcare decision to keep a gun in her home, as a birth control device. What are the penumbras and emanations of the second amendment, that might impact future privacy cases?
It looks in Heller like there are 4 opposed, the 'liberal' wing of the court, and five "we don't know what they are really thinking" votes, so we shouldn't count this as a win yet. It would be enough to get a strong dissent, as in McConnell v FEC, which set up the later WiRtl v FEC.
Scalia's vote is especially unpredictable. In cases like McIntyre, he, like Rhenquist elsewhere, argued for an evolving and living constitution, in which rights expire if they aren't used for 50 or a 100 years.
Elsewhere, though, he's suggested that "of the people" means "of the people".
Perhaps there are five (or 3, or 4) votes for something like this:
The people of DC are people and the 2nd applies to them, so you can't ban handguns. "Shall not be infringed" triggers something like strict scrutiny, but only of whatever it is that the founders meant by "the right" to bear arms,
so that we need to look to anglo-american law, circa 1679-1792, to understand what degree of regulation was historically allowed, in order to resolve questions such as whether trigger locks can be required for shotguns.
Just as libel and obscenity are (somewhat) outside the "freedom of speech", there are probably categories of gun-having that are not within the historicaal right.
And at that point, my knowledge is limited, and I need to defer to some of you historical scholar types. In, say, Massachutsetts in 1750, could trigger locks have been required?

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