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Old April 9, 2013, 10:46 PM   #51
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Join Date: May 24, 2005
Location: North Carolina
Posts: 2,701
Originally Posted by Al Norris
Dakota, you're correct, of course. Yet at the same time, a bit of veering can and should occur if we are to fully understand what is protected by the right, in its plain language and understand what is protected by the right as opined by the Supreme Court.

They are not always the same thing.
I have no doubt that the intention at the adoption of the Second Amendment was that it would be as absolute as its plain language suggests. The Second Amendment categorically denied the federal government any power to enter the field of the RKBA. That prohibition was reasonable and workable within the framework of federalism because the power denied the federal government was retained by the states.

As Aguila Blanca previously noted, one of the core reasons for any government is to maintain order in society and protect the members of society. Even in Heller, which was strictly federal in character, the Supreme Court tempered the otherwise absolute nature of the Second Amendment to accommodate police powers in the District of Columbia. And McDonald did not create a parallel to the Second Amendment's prohibition on federal powers by denying the states any power in the area of the RKBA. The simple but powerful language originally intended to unequivocally allocate power between the federal government and the states must now admit the tension between a strongly stated right guaranteed nationally and the necessity for government -at some level- to maintain order in society.

With that backdrop, does Heller provide protection against another AWB? I believe that it would protect against some AWB provisions, but possibly not others.

Feinstein's new AWB proposal originally included a provision to make certain firearms and magazines non-transferable and effectively contraband to eventually be forfeited. Such a law would be a substantial and direct affront to the right to keep (and dispose of) arms and would be unconstitutional.

Magazine capacity limits would implicate the Second Amendment because they would impair the utility and functionality of firearms; three 10-round magazines really are not the equivalent of a 30-round magazine. While I doubt the government's ability to prove a strong enough interest to justify restrictions, who knows which way a future Supreme Court might lean.

A ban on certain firearms gives me the most pause for reflection. I wonder whether the courts might conclude that restrictions on cosmetic features, while functionally equivalent firearms were available, did not intrude on the Second Amendment and were solely a Commerce Clause question.
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