And the theory (property rights) was completely ignored in Heller. So it looks like a complete non-starter.
First it was a property right. Now it's a fundamental right. Now with the Fourth Circuit decision, will the flip floppin' ever stop?
<<<II.
EVEN IF THE RIGHT TO PRIVATE OWNERSHIP OF WEAPONS IS A FUNDAMENTAL RIGHT, REASONABLE REGULATIONS OF THE RIGHT REMAIN CONSTITUTIONALLY PERMISSIBLE. Even if this Court declares the right to private ownership of weapons unrelated to militia service to be a “fundamental” right, reasonableness review remains the appropriate standard to judge weapons safety laws. The prevailing rule in the federal courts is that that
the “right to possess a gun is clearly not a fundamental right,” United States v. Toner, 728 F.2d 115, 128 (2d Cir. 1984), and this Court has declared that there are rights “far more fundamental” than the right to bear arms, Lewis v. United States, 445 U.S. 55, 66 (1980). If this Court now departs from precedent and deems the Second Amendment right fundamental, this should not automatically trigger heightened review. First, despite the common expression that fundamental rights always receive strict scrutiny, this Court applies a number of different and more lenient standards of review, including reasonableness review, in fundamental rights cases. Second, guns are a form of property and even fundamental property rights trigger only lenient scrutiny under current constitutional doctrine.>>>
And it goes on seemingly non-stop:
<<<B. Guns Are a Form of Property Subject to Deferential Scrutiny. Any individual right to keep and bear arms unrelated to militia service would be essentially a property right and, as such, ought to trigger deferential judicial scrutiny. Property rights are among the oldest “fundamental” rights. See, e.g., Chicago, Burlington & Quincy Ry. Co. v. City of Chicago, 166 U.S. 226, 236 (1897). Nevertheless, for seventy years, this Court consistently has applied deferential forms of scrutiny to laws that enhance public welfare by regulating the ability of individuals to own or use their real or personal property. Weapons safety laws, which do no more than regulate the ability of individuals to own or use one particular type of personal property, should receive the same judicial scrutiny regardless of whether the right to bear arms is fundamental. This Court repeatedly has held that the right of individuals to own and use property is subject to reasonable restriction. In Nebbia v. New York, 291 U.S. 502 (1934), this Court upheld a New York law that set prices for milk, explaining that “a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose.” Id. at 537. This Court added that “neither
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property rights nor contract rights are absolute; for government cannot exist if the citizen may at will use his property to the detriment of his fellows.” Id. at 523-24. What this Court wrote about milk is even more applicable to arms: Government cannot exist if anyone can use his or her gun at will to the detriment of others>>>
Chemerinsky & Winkler, Law Professors, Amicus Curiae in support of Petitioner Dist. of Columbia, No. 07-290 at 25
http://www.americanbar.org/content/...tionerAmCuChemerinskyWinkler.authcheckdam.pdf