Quote of the day—David Kopel

Tiers of scrutiny (strict scrutiny, intermediate scrutiny, and the variants thereof) might sometimes be appropriate for judicial review of non-prohibitory gun regulations. Under Heller, bans on common arms are categorically unconstitutional, without need for use of the means-ends balancing tests of strict or intermediate scrutiny.

David Kopel
February 12, 2020
What arms are “common”?
Amicus brief challenging California rifle ban

[I have nothing to add.—Joe]


5 thoughts on “Quote of the day—David Kopel

  1. More like, Tears of scrutiny. See what happens when you give money to lawyers and politicians?

  2. “Under Heller, bans on common arms are categorically unconstitutional, without need for use of the means-ends balancing tests of strict or intermediate scrutiny.”

    No; this is a good example of being “too smart by half”. See the trick in it? The insinuated compromises? The degradation of principle? Now it is certainly no longer the Decalogue, and no longer even the constitution, but instead it is the latest SCOTUS opinion which constitutes the Supreme Law of The Land, and that can change with the seasons, or with the next packing of the court by the next FDR.

    in fact, we can shorten the sentence thusly;
    Under the second amendment, bans on common arms are categorically unconstitutional.

    But that’s not all. Who snuck in that qualifier, “common”, thus leaving no room whatsoever for arms development or personal preference? So we need shorten it further;

    Bans on arms are categorically unconstitutional.

    Full stop.

    Whose country is this, anyway; the people’s, or the people’s servants’? Answer; the people’s. If my groundskeeper (if I had one) assumed ownership of my house and property, without my express permission and in contravention of his signed contract, and presumed to start changing the rules of the household, I’d have him charged and arrested for fraud, and likely several other crimes besides.

    There; fixed it.

    • If you knew Kopel better you would be less inclined to be critical of him.

      The issue he is addressing is that Heller is settled law and resolves this particular case in our favor. You’re trying to take a larger step than is necessary to incrementally win. That is taking more risk than necessary and would put the current case in jeopardy. If this case is lost then it is an incremental win for the gun banners.

      His brief makes no claims that limit future, more expansive, interpretation of the 2nd Amendment. And knowing Kopel a little better than you (I spent a couple hours talking to him at a NRA convention a few years ago), I’m certain he will make such claims when it is appropriate.

      • We need to incrementally win this the way the NAACP chipped away at Plessey v Ferguson until, 57 years later, in 1954, Brown v Board of Education swept the whole rotten edifice away. We want a body of law that is sound at each intermediate step, so no one can reverse a single case in the way Roe v Wade is discussed, and a real, constitutionally memorialized human right can be swept away.

      • and with CA freedom week, for the normal capacity magazines, it will be really hard for CA to be able to argue in Court that they are not common arms, because in that week(I think it was a week might have been like 4 or 5 days) the rest of the USA was able to sell/ship/import something like 20Million mags. Hopefully the CA case keeps working its way to the USSC, and it is ruled as it did in Heller, and thus all mag restrictions in all states get thrown out.

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