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Old April 16, 2009, 01:09 PM   #18
publius42
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Join Date: February 9, 2002
Posts: 1,936
Quote:
I don't recall which justice said it, but he said essentially The law is not logic. It is an accumulation of ideas over time. Which is one way of saying that arguing that color makes no logical difference will not persuade a court.
Among the ideas we have accumulated are the "reasonable man" test, rulings about reasonable suspicion, etc. So the law can't be immune to reason and logic.

We have also an accumulation of rulings regarding one thing being essentially the same as another. For example, a homegrown wheat plant for personal consumption is essentially the same as a homegrown cannabis plant for personal consumption (Wickard cited repeatedly in Raich), and a homegrown cannabis plant for personal consumption is essentially the same as a homegrown machine gun for personal consumption (Stewart remanded for reconsideration in light of Raich).

If you can say that a homegrown cannabis plant or machine gun is essentially the same as a wheat plant, and get away with that logic in front of the Supreme Court, I don't see why you could not say that a pink gun is essentially the same as a black one of identical make, model, etc.
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