Can we agree to ban the weapon used by the mass murderer?

[Uponthegears]

117. That law would easily be held constitutional

"Common usage" is not the end of the Heller test.

That only gets you to whether a firearm is covered by the Second Amendment AT ALL.

For example, the Government could completely ban the sale and possession of fully automatic weapons (the fact that it has not done so is irrelevant). It can completely ban the sale and possession of sawed of shotguns. No Second Amendment question whatsoever.

I'll accept, for the purposes of the civil argument we are having, your apparent claim that such things as high-capacity magazines, semi-automatic firing capability, etc., are not only now as common as the sands of the seashore, but also that the definition of "common" can be changed by custom and practice and is not limited to those classes/types of weapons (notice I said "classes of weapons" so don't go off on a tangent about how I am claiming that you may only own muskets because I am not) which were "commonly" held by private citizens at the time of the Founding. Is that fair enough?

Even if weapons such as the AR and AK knock-offs and these high-capacity, small caliber/low bullet weight semi-automatic side arms -- which are all the rage among: (1) criminals; and, (2) the suburbanites who have been led to believe they are at imminent risk from such criminals by racist/classist/ethnocentric NRA propaganda -- are covered by the 2nd Amendment, the Government can STILL impose reasonable restrictions on such weapons so long as those restrictions do not "substantially impair" the constitutional right guaranteed in the 2nd Amendment. As Justice Scalia reminded us, that's Constitutional Law 101.

Now your "Oh, that would be unconstitutional, no question" argument is not so clear-cut. Heller describes two basic activities (heck, let's call them "natural rights&quot protected by the Second Amendment . . . self-defense and sustenance.

Does limiting magazine capacity to 6 rounds "substantially impair" the "right" of self defense? Are there non-hyperbolic and statistically-significant threats out there which are substantially better protected through the use of high-capacity magazines? Are you starting to feel a little less smug?

But were not done, because when we are looking at limitations on constitutional rights, another factor comes into play . . . the governmental interest involved. When dealing with fundamental rights, the Government may restrict those rights only by showing that the restrictions are narrowly drawn AND protect an important governmental interest, BUT they can restrict even fundamental rights.

Do you have an argument that preventing the use of semi-automatic weapons during mass shootings is not an important governmental interest? I'd love to hear it. Okay, how is limiting magazine capacity (not possession, not "style," not caliber, not even rate of fire) not narrowly drawn? Do you have a narrower restriction on gun design/possession that you can point to?

Oh, btw, before your next snide remarks . . . go to law school.