Academic

Johnson on the "Common Use" Standard & the Second Amendment

By Lawrence Solum

Nicholas James Johnson (Fordham University - School of Law) has posted The Second Amendment in the States and the Limits of the Common Use Standard on SSRN. Here is the abstract:

This article shows how mechanical functionality and existing regulatory norms will shape the resolution disputes rooted in Heller?s common use standard.

And from the paper:

I have concentrated here on particular questions and acts of legislation that are likely to be impacted by Heller and McDonald, and I have suggested places where the common use standard generates analytical puzzles or low predictability. These issues will consume time and energy but will be peripheral in terms of violence policy consequences. The reason is that gun prohibition is basically an all-or-nothing proposition. It rests on the logic that no guns equals no gun crime. No one expects the inventory to go to zero, but results depend on reductions that get relatively close to it. So supply-side regulations only make sense if we think that eventually they will make guns or the elusive subcategory ?crime guns? relatively scarce. Heller makes that constitutionally impermissible. Most ?crime guns? are ordinary handguns. Ordinary handguns kept for self-defense are explicitly protected under Heller.46

Recommended.

Full post as published by Legal Theory Blog on December 10, 2010 (boomark / email).