Talking Points Memo has excerpted this bit from the rejoinder by Sen. Richard Durbin (D-IL) at today's hearings on the assault weapons ban. Evoking the phrase first coined by Justice Robert Jackson, dissenting in Terminiello v. Chicago, 337 U.S. 1 (1949), Durbin said to Fordham Law Prof. and Second Amendment advocate Nicholas Johnson ""When I listened to you and Mr. Hardy describe the Second Amendment, it's a suicide pact. Because by your definition, what has become common in America is unacceptable in a civilized country," "I made a very different point, senator," Johnson contested."Johnson drew the short straw - testifying after the very powerful emotional testimony of Newtown shooting victim Jesse Heslin's father Neil.
Johnson's testimony (video here at 2:36.50 ) summarized his written submission. The gist was that the weapons listed in the draft bill cannot be rationally distinguished from other weapons (like shotguns) that are not barred. Therefore, he argues, the proposal cannot satisfy the "lowest level of constitutional review" - the rational basis test.
But it seems to me that Congress is free to pick and choose what guns may be lawfully sold - under the regulatory authority even Heller v. D.C. recognizes. A shotgun can be distinguished from an AR-15 with a large magazine. Guns don't have rights - people do. The Congress could, in my view, prescribe only one type of gun which a civilian may carry. And it may make the choice to "grandfather" the millions of weapons already in private hands. Congress, in exercise of its constitutional regulatory power, can take partial steps. - GWC
But it seems to me that Congress is free to pick and choose what guns may be lawfully sold - under the regulatory authority even Heller v. D.C. recognizes. A shotgun can be distinguished from an AR-15 with a large magazine. Guns don't have rights - people do. The Congress could, in my view, prescribe only one type of gun which a civilian may carry. And it may make the choice to "grandfather" the millions of weapons already in private hands. Congress, in exercise of its constitutional regulatory power, can take partial steps. - GWC
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