I absolutely agree that the government should have the burden to prove a proposed firearm is not constitutionally protected. However; the decision in question disagrees with us. We have to work within the confines of existing case law (or look to have it overturned.) The courts are clearly not qualified to determine which weapons are and are not "common" weapons as this case shows (or look at Miller stating that a short barreled shotgun isn't a militia weapon when it was used quite extensively by the militia and military.) It is important that there is literature in the area that can be referenced discussing how one classifies weapons.
In your email you mentioned that at specific weapon shouldn't be considered uncommon for obvious reasons (we'd never have a new weapon) for the same reason one cannot declare a specific cartridge uncommon. If someone takes the first steps to creating a taxonomy it gives the courts (and 2A attorneys) a starting point for looking at laws targeting specific cartridges/firearms. It also gives a jumping off place for discussing martial arms and edged weapons. There is no reason to believe the second amendment wasn't intended to protect these every bit as much as firearms. Sabers and bayonets were in wide use at the time and surely were considered protected arms. Suggesting that it is impossible to have the Second Amendment stood upon it's head is assuming that we have the same makeup for some time to come. This is not likely to be the case and moving now to define the limits of governmental interference is important while we do have a SCOTUS that is not adverse to an armed citizenry. ----- Original Message ---- From: Philip F. Lee <pf...@wdn.com> To: Daniel D. Todd <dant...@yahoo.com>; Firearmsregprof <firearmsregprof@lists.ucla.edu> Sent: Sunday, June 7, 2009 5:30:00 PM Subject: Re: Volokh: California Court of Appeal Upholds Ban Not to make too much of the obvious, but shouldn't the government have the burden to show the firearm proposed for banning is being used in destructive ways in the US and these ways are significantly more so than other firearms? Or, at least, show that this firearm has the potential for being so used? And, additionally, that no less intrusive method exists to mitigate sufficiently the harm/potential harm. Too much is being made of "common use" as a criteria for a particular firearm. The SC said that handgun couldn't be banned, since they were in common use -- they didn't imply that .28 caliber pistol being introduced by S&W could be banned because this particular firearm was not in common use -- that interpretation would stand the Second Amendment on its head. Phil > > if you take this to the next level a "common use" law could preclude > the introduction of any new cartridge or even any new weapon using an > existing cartridge. > > This > is why it is necessary for those knowledgeable about "arms" to develop > an acceptable taxonomy to help the courts in determining what is in > "common use" I would argue that a semi-automatic rifle with a .50 bore > is a "common weapon" and there is no reason for this to be considered > an exceptional weapon. I feel strongly that a strict test of > "exceptionalness" needs to be applied for restricting a > constitutionally enumerated right rather than a "common use" test as > outlined in Heller. > > > > ----- Original Message ---- > From: C. D. Tavares <tava...@alum.mit.edu> > > On Jun 4, 2009, at 8:16 AM, Raymond Kessler wrote: > > > Further, Heller seems to be limited to "weapons in common > > use." .50 cal. Rifles are not in common use. > > I > wonder why I don't see more discussion of the elephant in this > particular room -- viz., Miller requires "common use" to protect a type > of firearm, but many firearms not in "common use" are rare precisely > due to pre-Miller laws that are at variance with the underlying logic > of Miller. Seems to me that a ruling that "we will protect your right > to own popular guns" isn't much different from a ruling that "we will > protect your right to utter popular speech." > > > > _______________________________________________ > To post, send message to Firearmsregprof@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof > > Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. > > _______________________________________________ To post, send message to Firearmsregprof@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
