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I'm not making a moral point. Intellectual dishonesty may be bad, but we must deal with the world as it is, not as we wish it to be. If you're writing rules and you know most people are intellectually dishonest, then regardless of if you support their dishonesty or not, you should account for it.
And I think in some cases in making Constitutional amendments that was done better than others. Due process claims is a method of defining your way out of the problem. But if the problem was specifically addressed, you have closed one area of attack.
Intellectual dishonesty is human. We are writing rules for humans, therefore those rules will be subject to it. Whether you think that is great or terrible is unimportant. It is.
It may well be bad that people try to drive a bus through a hole that previous people thought should only allow a mouse through. Intellectual honesty can require whatever it likes. But if most people are not, then it doesn't matter.
The moral valence of peoples actions is not relevant when discussing how bureaucratic laws and rules can be used or misused, and how gaps can be exploited and used. It might be good to use the hole to ban personal nuclear weapons, it might be good to use the hole to disallow criminals to have guns in prison. It might be bad to try and restrict black people from owning guns, and it might be bad to prevent New Yorkers from owning guns.
But Morality is subjective, once you allow for the hole, you must expect people with different moral opinions than you to use it for things they also think are good.
And early on we accepted there were holes. If you can define criminals as not being the people then you can certainly define blacks as not being the people. If you can define arms to exclude nukes you can certainly define arms to exclude high capacity assault rifles. And indeed that is exactly what we saw happen.
I'm not being prescriptive, I'm being descriptive of what actually happened. Good or bad is just pushing the argument to the moral sphere where different morals will have different answers. Doesn't matter because people do have different moral compasses. If you allow x because you think y is bad you can't be surprised when people want to allow a because they think b is bad.
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