Undue Burden standard for guns?

[Eric Segall]

How can Scalia adopt an "undue burden" standard for the Second Amendment after his rant in Casey about the standard? Because one is "textual" and one is "not?" Not convincing . . . .

Eric

>>> Steven Jamar <stevenjamar at gmail.com> 03/03/10 6:31 AM >>>
Undue burden seems to be what Scalia was pointing at in Heller -- like  
abortion cases.  That seems to be the most likely test in this area to  
me.  I expect the scope of the right itself to be circumscribed (no  
right to own operable cannons) and regulation of the right to be  
broadly permitted short of confiscation or bans or limits that render  
the erstwhile purposes of the right meaningless (but banning the right  
to own tanks or cannons, of course, does exactly that -- if a purpose  
is to avoid tyranny).

While I think the appeal to and reading of history was very wrong and  
wrong-headed in Heller, I actually think the right should be an  
individual one and so the core substance was correctly decided.  Then  
it becomes a matter of degree, of what is allowed, and of the  
circumstances the Court will allow to be considered by the rule-makers  
in deciding what is undue burden.  What is undue in the north woods of  
Minnesota may be quite different from what is undue on the streets of  
Philadelphia.

-- 
Prof. Steven D. Jamar                     vox:  202-806-8017
Associate Director, Institute of Intellectual Property and Social  
Justice http://iipsj.org
Howard University School of Law           fax:  202-806-8567
http://iipsj.com/SDJ/

"I am in Birmingham because injustice is here. . . . Injustice  
anywhere is a threat to justice everywhere."

Martin Luther King, Jr., (1963)