Now that we've verified that the Second Amendment protects a right of the people, and that no ban on a class of arms will pass muster under the scrutiny of the Second Amendment, the stage is set
Woody, you are reading what you want to hear into
Heller and not what was actually said. The holding from
Heller is:
"In sum, we hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense."
Concerning the standard of scrutiny, Heller says very little; but where it does speak, it says only:
"Under any standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home, "the most preferred firearm in the nation to 'keep' and use for protection of one's home and family (citation omitted) would fail constitutional muster."
As you can see, the holding in
Heller does not apply to all arms, nor does it state that a ban on an entire class of arms is unconstitutional. it only says that banning "the most preferred firearm in the nation to 'keep' and use for protection of one's home and family (citation omitted) would fail constitutional muster."
Further Scalia goes on to say (cites omitted)(bolded emphasis is my own):
"We also recognize
another important limitation on the right to keep and carry arms.
Miller said, as we have explained, tha the sorts of weapons protected were those "in common use at the time." We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'
It may be objected that if the weapons that are most useful in military service - M-16 rifles and the like - may be
banned, then the Second Amendment right is completely detached from its prefatory clause.... But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right."
Does that sound like someone who is going to overturn 922(o) to you? He is saying that the "protected right" described by Heller no longer fits well with the prefatory clause (the part regarding the militia). What does the above passage suggest to you?
Hell, would it then be necessary to ban Mares Legs when you consider the small number existing and being used? To follow that logic only brings you to the conclusion that "common use" is a fallacious parameter. I'd dare to say there are fewer Mares Legs than machine guns!
Speaking of fallacious, you seem to confuse the ideas here. If a Mares Leg is not considered a protected arm under the Second Amendment because it is "not in common use", that does not
require that Mares Legs be banned. It merely means that states can ban them if they choose to do so.
What do you see as the next best move?
Heller tells us that a handgun is protected under the Second Amendment. Everything else is still up for debate at this point. So I would concentrate my efforts on handgun restrictions - I would establish that restrictions against semi-automatic handguns are invalid. I would go after California's "Handgun List" that prohibits handguns based on their color or feature and establish that those were invalid restrictions. This way we don't have to refight the whole protected "arm" issue and we can concentrate on specific issues - such as bans on cosmetic and technical features in an already protected class of arm.
Considering the number of states that have shall-issue concealed carry laws and the racist nature of many may-issue laws, I would start targeting those laws as well.
In each case, I would want to have good, upstanding plaintiffs and have the issues fairly narrowly targeted so that the decision cannot be sidetracked down another line of legal reasoning. So that will also be a limiting factor on how fast we can move.
Don't get me wrong, Bart. I'm not looking to convince you otherwise. I'm just expressing my opinion.
Well it is good you weren't looking for that; because you'd have been looking awhile. I get discouraged when I see posts like yours, Woody; because from my perspective there is a great volume of information suggesting that going after 922(o) anytime in the next year or two would be a big mistake. Yet at the same time, I know that there are people out there who share your views and I fully expect some of them to try a lawsuit anyway. I just don't grasp people who think that we are going to go from a 5-4 split on whether the strictest, most ridiculous, gun law in the nation is constitutional to repealing 922(o) a few years later.
At the end of the day, you still need five votes on the Supreme Court and if those five votes are there right now, then there is sure a lot of curious dicta in the majority opinion of
Heller.