-------- Original Message -------- There are different ways to treat the subject of regulation in such cases.
The precedents Sloan cites are essentially holdings that it is not unconstitutional to regulate in "reasonable" ways that only incidentally affects the exercise of a right, in other words, that does not put an "undue burden" on the exercise. This is based on the not unreasonable realization that almost anything government does is going to have some adverse effects, if only minor ones, on the exercise of almost every right by everybody. Reality is an interconnected chain of causality in which everything affects everything. So the argument shifts to how much is too much, when balanced against other rights, and we need to show that anything that diminishes the deterrent effect of firearms presents such an undue burden.
We can then turn the debate to whether prospects for future speculative infringements can have any weight against present actual infringements in deciding the balance. Most "regulation" is based on theories, often far-fetched, about chains of causality, many of which are beyond the competence of government or the courts. It is usually not difficult to demonstrate the incompetence of such theories even to judges.
The next approach to take is to argue that while there might be some power to regulate, the direction and purposes for which such power may be constitutionally exercised is not, contrary to Justice John Marshall, "plenary" within a subject area, but constrained by certain purposes. If we examine the original understanding of the Founders, we find they did indeed contemplate certain kinds of regulation of firearms and militia, but only in ways that would enhance their effectiveness as militia.
Thus, when citizens are called up as militia, and bring their own arms, it is certainly within the authority of the state or their commanders to prescribe what kinds of weapons are to be used for each kind of mission. A regulation that a sniper use a long-range rifle instead of a shotgun, or that a guard on sentry duty use a shotgun instead of an RPG, or that the militiaman should go unarmed on a spy mission, is an appropriate regulation. It would be reasonable to regulate firearms manufacturing to require that all weapons labeled to work with a certain caliber of ammunition actually work reliably with that ammunition.
In other words, there are regulations that are constitutional, but they are only regulations suitable for keeping a military force as effective as possible. The delegation of such regulatory power is not the delegation of discretion to use it in ways not appropriate for the militia purpose.
Note that I am speaking here of state regulations, not federal, which are limited to federal territory and militia in actual federal service, or for implementation by state militia officers, which would mean locally elected commanders if the state does not otherwise provide for their appointment.
The legal position the NRA should take, both in pleadings and rhetorically, is that the Militia Act of 1792 provides the model and the beginning for the only kind of legislation on the subject that is constitutional, and that the only way to disable exercise of the RKBA is judicially, and at the state or local level only, by granting a petition to disable for either abuse of that right, or as the prescribed penalty for the abuse of another's right, in each individual case. What is not constitutional is to federally forbid firearms to any person on the basis of state court decisions or other history that might be indicative of potential future abuse, but that do not explicitly disable, or restrict, the exercise of the right, in the court order or sentence. That kind of thing violates the prohibition on bills of attainder. See my law review article at http://www.constitution.org/col/psrboa.htm
Sam Sloan wrote:
...I hate to break it to youse guys, but a claim that under the constitution the federal government has no right, none whatsoever, to regulate firearms has no chance, absolutely zero, of winning or of even being given a hearing by the US Supreme Court.
Thus, the NRA gradual approach is the only approach with any chance of getting anywhere.
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