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Old April 4, 2012, 08:12 AM   #36
Al Norris
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,541
Here's some quotes from the reply brief that I thought you would find amusing...
This Court does not referee academic debates. “[T]he enshrinement of constitutional rights necessarily takes certain policy choices off the table.” Heller, 554 U.S. at 636. Professors Cook and Zimring are certainly entitled to believe that the Second Amendment right to bear arms is disastrously dangerous. They are also entitled to that same belief regarding the exclusionary rule or the right to counsel. Doubtless, virtually every aspect of the Constitution finds strong disagreement among some segment of society... The question of what the Second Amendment secures is a matter of text and history, not an academic debate as to who has the best statistics.

Defendants offer that openly carrying handguns is socially unacceptable today, but that is hardly a basis for prohibiting constitutionally-protected conduct. Licensing Officers’ Br., at 38 & n.13. Nonetheless Defendants suggest Plaintiffs should have challenged New York’s general prohibition on carrying loaded handguns in public, which reaches the open carrying of firearms. Id. Defendants should consider carefully whether this is the outcome they want. If the licenses issued under Penal Law § 400.00(2) relate only to concealed carry, and if this Court holds that the right to bear arms extends only to open carrying, the police would enjoy no qualified immunity for enforcing an open carry prohibition. The decision would instantly place New York among the states that generally allow the unlicensed open carrying of handguns—and many individuals could be counted upon to immediately exercise that right here, as is already done elsewhere.

But the Second Amendment is not among the Bill of Needs. It is among the Bill of Rights. Defendants’ arguments amount to: the government’s “experts” have determined that the People do not really “need” one of their “rights.” That is not constitutional law. Social science may have a role to play in illuminating the relationship between a right and its regulation, but it cannot have the role of defining the content of a right.
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