I got this forwarded the other day. Its a discussion of avoiding the "slippery slope" inherent in 2nd amendment rights analysis. What do you legal guys think:
> framework that should help deal with the slippery slope
> argument (i.e., if "arms" are constitutionally protected,
> then why can't Joe Blow go and pick
> up his own 60 mm mortar launcher, etc.). Also, as you'll
> see, it builds in
> a sort of "fluid" factor under which the decisions by the
> government are important.
>
> I use as my starting point the decision in US v. Miller,
> which I read in a manner nearly identical to Kleinfeld's
> dissent today. Several truisms come
> from the case: (1) the 2nd amendment right is an individual
> one; (2) it
> protects weapons particularly apt for use by "militia"; (3)
> it also protects the type of arms useful in preparing and
> training; and (4) most importantly, the decision there was
> based on the defendant's failure to supply evidence that the
> weapon that had been regulated could meet the constitutional
> purposes, and not a determination by the courts that such a
> weapon could never meet the constitutional purposes.
>
> Anyway, without further ado, here's my test:
>
> FIRST: Is the weapon sought to be protected from regulation
> comparable (in
> terms not only of caliber, firepower, functionality and
> features, but also appearance and ergonomics) with the
> weapons that federal, state and local authorities regularly
> and customarily deploy (i.e., make available), or have
> traditionally deployed, including reasonable equivalents, to
> INDIVIDUAL local, state or government actors (i.e., single
> individuals) for purposes of either possible application to
> the domestic population or, in the case of standing armed
> forces, for defensive application upon US soil as against
> invaders or enemies of the state? If so, then the "arm" is
> presumptively one which the framers of the 2nd Amend.
> intended to be available for citizen ownership (i.e., "keep")
> and use (i.e., "and bear") in order to, inter alia, ensure
> citizens will have an equal footing with the government
> actors who must act by and for the population, but with
> their consent.
>
> The first element casts the net of protection, and casts it
> broadly -- although the government has the power to narrow
> the scope of protection by itself eschewing certain
> classifications of weapons from the realm of "individual
> issue." This has the effect of adding an organic element to
> the test, such that increases in technology don't lead to
> unending escalation of arms (i.e., the technology slippery
> slop). So, for example, if someone invents a plasma cannon
> for issuance to individual infantrymen and which vaporizes
> any target on contact, the government can elect NOT to deploy
> these to its individual soldiers and to restrict deployment
> to federal, state and local law enforcement officers, thereby
> keeping the weapon out of the "net" cast by my test.
>
>
> SECOND ELEMENT:
>
> Does the weapon's function, technical limitations, practical
> effects and proportional sphere of influence result in a
> situation in which the citizen of average proficiency can be
> expected to reasonably yield and employ the weapon in a
> sufficiently "discriminate" manner as to comport with both
> the citizen's responsibilities as a part of the militia and
> with notions of individual constitutional responsibility?
> (Think, here, of the first amendment speaker's
> "responsibility" not to yell fire in a crowded theatre; of
> the newspaper publisher's responsibility to act without
> actual malice and to evaluate words so as to avoid libel; of
> the search and seizure proponent's responsibility to take
> steps so as to have a reasonable
> expectation of privacy. Think of this aspect of the test as
> the limitation
> that flows from the prefatory clause as to a "well regulated
> militia" all sort of rolled together with the notion of
> "ordered liberty" in the Court's other cases).
>
> As you can surmise, the second element is the gate keeper and
> is intended to check the "why can't I have my own flame
> thrower, RPG, howitzer, abrams tank, or mortar" slippery
> slope problem. Once the first element is met, the second
> element decides the type of scrutiny to be applied to regulation.
>
> Thus, If a weapon meets the first test, and ALSO meets the
> second test in that it proves capable of use in a
> sufficiently discriminate manner to comport with ordered
> liberty and the constraints of a citizens' militia, then it
> is both presumptively protected and may be regulated only
> upon satisfying the strict scrutiny test as that test has
> been formulated in the
> realm of free speech: The government must show a compelling
> governmental
> interest for the regulation, and that the regulation is the
> least burdensome means of reaching the proffered interest.
> As with free speech, I envision that the "prior restraint"
> type of regulation (e.g., outright bans) will be difficult to
> justify given the availability of point of sale regulation
> and registration. In other words, even if the government
> establishes a compelling interest in addressing the use of
> machine guns in racketeering and organized crime, the
> outright ban of such weapons may fail to meet the narrow
> tailoring requirement if registration and tax stamp treatment
> ala the original gun control act would suffice to meet the
> criminal use issue. While a registration regime might freak
> out some pro-gun proponents, my sense is that this is only
> because the courts have not firmly established individual gun
> rights. Registration is not so frightening if the courts say
> that while the government may regulate, it cannot confiscate.
>
> Failure of the second element does not in my estimation give
> the government
> unlimited authority. If a weapon is presumptively protected, but is
> incapable of use in a manner fitting to a militia or that
> would comport with individual constitutional responsibility
> and ordered liberty, it may be regulated under intermediate
> scrutiny or possibly even rational basis analysis. This is
> interesting, because in my view all of this nonsense
> cosmetic-based gun regulation (does it look scary?) would
> fail even the rational basis test.
>
> Finally, if a weapon is not even presumptively protected
> under the first element, then it may certainly be regulated
> under the rational basis test.
>
> As noted, non-ban non-confiscatory prior limitations, such as
> registration, might be constitutional, depending on the
> interplay between the chilling effect they might have on gun
> ownership weighed against the interest being
> served. (Example: the $200 tax stamp required for civilian
> ownership of
> "full auto" machine guns probably is OK). As to my second
> element, please
> consider that the issue here isn't whether the guns are
> inherently dangerous; indeed, we already know that (as did
> the founders). Instead, the "sufficiently discriminate"
> aspect of the test really asks the question: Can the average
> citizen be expected to employ this weapon without taking out
> large number of innocents who are not targeted?
>
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