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Old April 8, 2013, 05:47 PM   #40
Tom Servo
Join Date: September 27, 2008
Location: Foothills of the Appalachians
Posts: 12,130
Not a perfect, or even good, analogy.
An indirect one, perhaps. The actual quote is from Justice Holmes, who held in Schenk that distributing fliers in opposition to the draft wasn't protected by the 1A because such speech was "dangerous" and had no "useful" purpose. Compare that to Scalia's stance on "dangerous and unusual" weapons.

4th Amendment. Wiretaps? Wiretaps are searches. They require warrants. What's the issue?
If I put a wiretap on your house or office, I'm getting all sorts of information that would never have been part of a warrant for specific papers and possessions. I really doubt the founders would have approved of the practice.

Your argument that our rights have always been subject to limits sounds eerily like what Frank Ettin has told me in the past.
I don't like it, but it's true. We've always had restrictions on the 2A. I fear we always will. The trick now is to limit them as much as possible.

But ... show me where the word "reasonable" (or "unreasonable") appears in the 2nd Amendment. You can't -- it isn't there.
You're factually correct, but getting back to the 1A analogy, there are laws restricting freedom of speech, the press, and public gatherings that have passed constitutional muster. Consider free speech zones, campaign finance reform, and nebulous definitions of indecency.

Justice Scalia wrote what he wrote and we're stuck with it, at least for now, but I have the temerity to propose that he was flat-out wrong.
It's not temerity; you're right. But the alternative was heinous enough that we're fortunate to have gotten that much.

A ban on military-style weapons violates the intent and text of the 2A as much as nearly anything can, and the founders would have found it reprehensible. But we went astray as a nation on the matter for a long time, and Heller was our foot in the door to start fixing that. As it stands right now, I think we can count on its dicta to overturn another ban. I understand your frustration, but that's just where we are at the moment.
Sometimes it’s nice not to destroy the world for a change.
--Randall Munroe
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