Undue Burden standard for guns?
stevenjamar at gmail.com
Wed Mar 3 04:59:38 PST 2010
The same way Scalia is for judicial deference, against substantive due
process, and states rights.
On Mar 3, 2010, at 7:48 AM, Eric Segall wrote:
> 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
> Justice http://iipsj.org
> 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)
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
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