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Culture War Roundup for the week of October 9, 2023

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I'm going to try to be charitable, but this is a discussion space where people will provide amazingly dishonest analysis while claiming a straight face.

Founding-era behaviors included issuing letters of marque to private individuals who then took their cannon-equipped privately-owned and fully-staffed ships off a hunting. Beyond the practical issues with trying to ban such a thing -- the recent campaign for increased enforcement of state and development of federal anti-paramilitary laws in practice has mostly been calls to go after the political speech that gun control advocates don't like -- the pretense that they survive constitutional scrutiny because of a bad read of Article One powers is laughable.

I think there are a few major categories of firearm-related regulation that are pretty well-supported under current text and history analysis:

  • Regulations focused on preventing injuries to the user or third parties from the otherwise-lawful use of a firearm, flowing from laws about gunpowder storage or dangerous and unusual weapons. It's perfectly legitimate if the fire code requires you not to store fifty tons of ANFO in the middle of a city, or for fifty pounds of gunpowder to be in a fireproof containers; people doing stupid stuff that could break their own hand or wanting a stock Viper is not part of the Second Amendment. There's a bit of messiness on the edges, since you can have either laws pretending to be about the safety of a firearm but (charitably) about criminal use or (uncharitably) about making gun ownership difficult, such as the Californian Safe Handgun Roster, or laws that are requiring extreme costs to chase tiny or dubious benefits such as some safe inspection statutes, but the common law rule that a private citizen should not be liable for the criminal use of their property really cordons off a lot of that. Other areas, like lead ammo regulations, are I think legitimate areas of public debate, so long as they are not backdoor gun or ammo (or for mercury, primer) bans.

((I think these practically cover nuclear weapons, simply because of the mix of incidental radiation exposure and fallout and large minimum yield make them very much the archetype of "infernal machine" that was often banned in the early United States, but I also think it's kinda irrelevant.))

  • I don't like 'sensitive places' as a legal term because it's invited (often hilarious) abuse, but then again I expect Newsom would have abused a comma-separated list had Thomas written one instead, and there's very clearly a historical record of restrictions for some very specific locations. Areas with highly-restricted access, that have restricted access and the government is acting as the property owner, or where lawful use is impossible or dangerous, are more reasonable than everywhere but the sidewalk.

  • Specific findings by a court of dangerousness of an individual person. Most of the limits here are due process ones, rather than second amendment-specific matters, but modern law has permitted a ton of due process violations here because guns ick. The process must be appealable both on matters of law and fact, must be an adversarial hearing with criminal-law-typical standard of proof, must have the right to confront their accuser, must be based on concrete allegations and with an actual statutory definition of dangerousness rather than courts treating it like a restraining order++, must respect property rights, so on. I'd argue that the analogue to surety laws requires a Second Amendment-specific way to expunge loss of rights (and federal law means that the ATF is supposed to be doing it right now, it's just not funded), but I don't expect SCOTUS to ever be willing to establish that.

  • While I think they're bad policy, age restrictions up to age 18 are probably constitutional.

infernal machine

Well. I guess I learned something today.

wanting a stock Viper is not part of the Second Amendment

Given the historical tradition of private ships and cannon, what excludes a zero down, 25% APY Viper loaded up with some cute girls for a weekend? Not financially prudent but that's not constitutionally relevant.

Ah, sorry, I mixed up names. I was thinking the Vektor, a famously unsafe concealed carry pistol.

The AGM-80 is more just wildly impractical.

And when you said this, I was trying to figure out

  1. What’s wrong with the Vector?
  2. What idiot was trying to conceal one?!

I was thinking of the other other Viper.