With the upcoming decision in the Heller case, Sebastian is talking about what standard of interpretation we should be prepared to accept or should be pushing for on the 2nd Amendment.
I wanted to note that what I’m speaking of is not what interpretation of the second amendment is most correct historically, but which interpretations protect the widest array of firearms that the federal judiciary would adopt. Note that there is no way the federal judiciary is going to accept a standard that laws regulating any kind of arm is by default unconstitutional. There will be lines drawn with certain classes of arms being protected, and certain classes not being protected.
The standard that he proposes is one that would set the limit as “general police use”, i.e. if a firearm is considered acceptable for use by the police in their duties, than it should be equally acceptable for a law-abiding citizen. I also like his three point plan for determining what defines a firearm as acceptable for a law-abiding citizen:
- Is the arm usable for personal self-defense, or
- It has a function in the preservation of or practicing skill at arms, and
- It is of a type or functional variant of a firearm in common police or civilian use.
Using those three standards, you ensure that it would protect all the guns we current have, as well as protecting high-capacity magazines and semi-automatic rifles which are banned in some jurisdictions.
I know that it’s not “shall not be infriiiiiiiinged”, but the reality of the situation is that even with an individual rights decision from the Supreme Court, some gun control is still going to be inevitable. Where we can win and gain ground will be determined by how and what we push for in the wake of a possible individual rights decision.