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Bartholomew Roberts · October 25, 2011, 06:34 AM

I think the "presumptively lawful" comment has actually served an important function. One of the big issues with the Second Amendment is that bad guys end up in court for using guns a lot more often than good guys. There are 1,000 Millers for every Heller or McDonald.

The "presumptively lawful" comment gives judges an easy way to dismiss bad plaintiffs at lower levels without creating bad precedent for us; and lately it seems, it has meant that judges rarely do a good analysis even with good plaintiffs, meaning that the collectivist wing of the Court must do all the heavy lifting to defend a gun law.

I would probably agree that the originalist take on the Second Amendment was compromised by a need to write an opinion that would get 5 votes. However, I think the common use test has at least some grounding in originalism.

October 25, 2011, 06:34 AM	#3
Bartholomew Roberts member Join Date: June 12, 2000 Location: Texas and Oklahoma area Posts: 8,462	I think the "presumptively lawful" comment has actually served an important function. One of the big issues with the Second Amendment is that bad guys end up in court for using guns a lot more often than good guys. There are 1,000 Millers for every Heller or McDonald. The "presumptively lawful" comment gives judges an easy way to dismiss bad plaintiffs at lower levels without creating bad precedent for us; and lately it seems, it has meant that judges rarely do a good analysis even with good plaintiffs, meaning that the collectivist wing of the Court must do all the heavy lifting to defend a gun law. I would probably agree that the originalist take on the Second Amendment was compromised by a need to write an opinion that would get 5 votes. However, I think the common use test has at least some grounding in originalism.