Undue Burden standard for guns?
esegall at gsu.edu
Wed Mar 3 04:48:03 PST 2010
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 . . . .
>>> 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
Prof. Steven D. Jamar vox: 202-806-8017
Associate Director, Institute of Intellectual Property and Social
Howard University School of Law fax: 202-806-8567
"I am in Birmingham because injustice is here. . . . Injustice
anywhere is a threat to justice everywhere."
Martin Luther King, Jr., (1963)
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