I know, most of you just can’t get enough of D.C. v. Heller.  And who am I to deny you?

When last we discussed Heller (which was somewhere like 5 minutes ago, I think), we noted that the concerns by big city District Attorneys that the Heller side (we want our guns and we want them NOW!) would wreak havoc for law enforcement.  This, it should be noted, is in contrast to the 31 Attorneys General who argue that we’re all safer when everybody packs heat.  Whatever.

But being an avid follower of Doug Berman, I learn more and more.  While we have already gotten the neo-con line(RKBA is a fundamental right, except for people we don’t like), which was as convincing as an unloaded AK-47.  But Doc Berman, who has clearly given this a lot of thought, has come up with a way to express this concern that spells out the situation with extreme clarity:

In other words, whether seen as living or dead, provisions in the Bill of Rights have often been dynamically interpreted to safeguard rights against the government that courts consider important (and I am not even talking about any penumbral emanations).  And, lets play out the Sixth Amendment analogy in light of current federal law barring all felons from gun ownership:  Would anyone find constitutional a federal law that made it a felony offense — and one subject to a 10-year federal prison sentence — for any and all previously convicted felon to hire a lawyer?

Now this argument may at first blush seem flip and facile.  And indeed, many of the comments Berman received argue that the analogy is way off base, whether texturally, historically, pragmatically or just because it seems too weird to be right.

I think he’s made a good point here.  Trying to pigeonhole the historic approach of excluding felons and the insane from weapons possession is no longer valid when the basic argument is that it’s a fundamental right.  That changes everything, and everything means that you can’t keep the parts you like and get rid of the parts you don’t. 

One of the better comparisons was the 1st Amendment free speech restrictions; a fundamental right but still subject to limits.  Of course, the limitations are subject to strict scrutiny, which is what is argued by the Heller supporters (the same one’s who dismiss the notion of felons having a right to arms).  What has yet to be heard is a good argument of how this would limitation would survive strict scrutiny for felons.  The insane may be another matter, at least during the pendancy of their incompetence.  Those convicted of violent felonies may similarly pass muster.  But what legitimate government purpose is served by denying Martha Stewart her snub-nose .22?

There are plenty of folks with felonies without a nexus to violence, most notably in the realm of drug sale and possessions.  Then there are those whose felonies are possession of a weapon itself, then a crime and soon to be a fundamental constitutional right.  What about felons who have not committed a crime in 5 years?  10 years?  25 years?  Don’t they have a right to protect themselves?

And of course, if the purpose of the 2nd Amendment is to have an armed population just in case the feds get a little too crazy and start behaving like King George (the third, not the 43rd), aren’t felons just as entitled to defend their rights, their homes, their families as anyone else?  Maybe, given the fact that the government has already imprisoned some of them for exercising their constitutional right to keep and bear arms, they are the ones most in need of guns.