The following, in particular, caught my attention:
Both the majority and the dissent acknowledge that the AR-15 is a gun in common use. How they proceed from there is illuminating. The dissent treats common use as a solid liberty-protecting standard. Guns in common use cannot be banned.
For the majority, acknowledging the AR-15 as a gun in common use is just a rhetorical lead-in to the burgeoning two stage standard of review. The court found that the D.C. law did in fact burden a core Second Amendment concern. But at stage two it determined that the ban does not “substantially burden” the right to self-defense (people could still have handguns and many other long guns).
This reasoning is not derived from Heller and it is interesting to speculate what else would pass muster under this approach. Pushed hard, it would seem to allow very broad gun bans as long as some core self-defense guns remained legal.
In Heller it was said that guns “in common use” are protected from prohibition by the 2nd Amendment. But some judges are ignoring that. This is essentially a repeat of what happened in Miller where it was said that to be protected by the 2nd Amendment a gun had to “has some reasonable relationship to the preservation or efficiency of a well regulated militia.” Yet many courts ignored that statement and instead substituted a twisted version of the actual wording of the Miller decision and said the individual wanting to own or bear a firearm had to be in a militia.
Mike B., a lawyer friend of mine, once told me engineers make poor lawyers because they believe the law means what the law says and it doesn’t. The law actually means whatever the judges want it to mean. This is another data point supporting that claim. And this is another reason why getting people who follow the law as written as our judges is vital to the preservation of our rights.
Or perhaps expressed better is the comment to the post by Brett Bellmore (Oct 06, 2012 @ 09:13:19):
In the end, there’s no substitute for staffing the judiciary with people who aren’t hostile to this liberty. They have too many ways to destroy liberties they don’t like, to afford enemies there.
Keep that in mind each and every time you vote.