So, although I agree unequivocally with you that this is going to be and is being twisted to hurt us, so is every aspect of everything (SCOTUS Bruen footnote on permitting schemes, anyone?, and endless other dicta). I don’t see the point of eliminating this very good test because they will twist it like everything else they twist. My main reason for writing this is to hopefully get a reply back on your thoughts on what I am saying. [More]
See, I never said eliminate the test. I even agreed with showing how it can be a very effective tactic to use for now.
What I’m saying is don’t get so wrapped up in the “common use” argument that it restricts the introduction of other truths, and there are better arguments for challenging the restrictions on the full autos we’re entitled to that our legal “leaders” have not been inclined to use.
That and future devel0pments in weapons technology can be withheld from us because they’re not in common use.
Change the concept to “in common use by police and soldiers” and I’ll stop screaming at passing cars about it.
Neither the Girandoni air rifle (carried by Lewis and Clark) nor the Kalthoff repeater (circa 1630) was “in common use” during their day, but no one ever sought to ban either of them. This was a spurious standard created out of whole cloth during the Heller decision. While I can see how it might be used in a 2nd Amendment-favorable way, it also gives the Democrat Communist Party a weapon to wield against the People and their rights.
That’s always been my concern too.
The Colt SP1 wasn’t “in common use” when first introduced in the early ’60s either…
“Change the concept to “in common use by police and soldiers” and I’ll stop screaming at passing cars about it.”
The day that happens, I’ll stop screaming about it too!
Yeah, there’s “in common use” and “sporting purposes” and a whole collection of other barnacles on the bottom of the boat.
But the words “except in the case of” or “notwithstanding” or “unless otherwise forbidden by sections blah blah and blah” do not appear in any of the Bill of Rights.
And you can bet your firstborn that those “missing” weasel words were not left out due to some oversight by the Founders.
As the saying goes, the lack of the “missing” verbiage, that the Left somehow sees in their copy, is a feature, not a bug.
Moreover, it is a feature that the Founders insisted upon before they would even consider ratifying the proposed new constitution back in 1789.
The Bill of Rights did not grant anything to anyone. See US v Cruikshank. What the Bill of Rights did was take certain inalienable rights out of the reach of a lawful government that was instituted to preserve and protect its people’s use of those rights.
I am the OP (if you could call it that), and I wanted to clarify what I had written to David. I’m not sure how many people will see this post now at this point, but I want to write it anyway.
I think we are all of the viewpoint in here that the only acceptable test is ‘shall not be infringed’. Does it infringe, hinder, slow down, restrict, prohibit, require anything, and on and on, well, then no, you can’t do that. The Constitution is a negative document. It doesn’t grant us rights, it prohibits the government from stripping us of God-given, Constitutionally enumerated unalienable rights. Shall not be infringed means shall not be infringed. This is preaching to the choir in here.
This, unfortunately, is not the world we live in right now (as Mark W. Smith points out as outlined in David’s linked article). We all want it to be, and should work towards that goal tirelessly, but we are not there. We had ‘interest balancing’ and ‘intermediate scrutiny’, and so on. Now we have ‘text, then historical tradition’. The latter approach is much better. Is it ‘shall not be infringed’? No, not even close. But you can’t deny it’s better.
When one adds in a preliminary step to the ‘historical tradition’ called ‘in common use for lawful purposes’ it saves a lot of litigation time (in theory, when applied correctly), since that analysis has already been done for arms in common use for lawful purposes. No need to reinvent the wheel over and over with each and every case. In that regard it’s a fantastic improvement over just the ‘text, then historical tradition’ version. That’s my point.
My point is not that, overall, any of this nonsense is fantastic. I meant it’s a fantastic test to add to what we had, like the Heller test was a fantastic improvement to the interest balancing nonsense. The current approach, even when applied ‘correctly’, is still lipstick on a pig. Except now, by adding the ‘in common use for lawful purposes’ preliminary step, it becomes a pig with a better shade of lipstick, and maybe a pretty wig on it, too.
None of this is a ‘shall not be infringed’ test. None of this gets us where we want to be, where the founders intended for us to be. David does a great job on that in his articles he linked to in this response to my emails. Nothing short of what the 2A means, as intended by the founding fathers, is adequate. I was just trying to say that while we are mired in the muck, trying to get to where the 2A means what it says, this is an improvement that I think is good. Like winning one little battle. We didn’t win the war, but we should still be thankful we are a little better off than before as we continue onward.
Yes, some argue that even though we lost all this by incrementalism, the way back is not through incrementalism. That’s a topic for another day. And I will concede that an incrementalist approach back may lead us into traps from which we cannot escape. It’s still my view to celebrate small wins as we get them. The real solution is to never get oneself into the position we are in now in the first place. Just my two cents.