Supply Restrictions at the Margins of Heller and the Abortion Analogue: Stenberg Principles, Assault Weapons, and the Attitudinalist Critique

48 Pages Posted: 27 Oct 2009  

Nicholas James Johnson

Fordham University School of Law

Date Written: June 26, 2009

Abstract

This Article will show how assault weapons might be protected under Heller as a threshold matter, how Stenberg's guarantee of better methodologies to protect life or health applies just as easily to the assault weapons question, and how the response of Court liberals to an assault weapons case will be an important test of the attitudinalist critique. ... With Heller's explicit protection of handguns and other common self-defense guns, the "sporting use" filter and corresponding distinctions based on appearance cannot be sustained. ... But what happens when the SMUs of common firearms are claimed to produce peculiar externalities that the state wants to combat by banning them? ... Both demand analysis that many people find repugnant - for example, the graphic comparisons of late term abortion procedures or discussions of relative wound ballistics between assault weapons and hunting rifles. ... Subsection 1 will elaborate the parallels between the assault weapons and partial-birth abortion claims, apply the principles developed by the Stenberg majority to the assault weapons claim, and elaborate the attitudinalists' challenge that Stenberg poses for Court liberals. ... Disputed Utility and Legislative Discretion Integral to the outcome in Gonzales is the majority's willingness to credit the legislature's judgment that there is overriding evidence of disutility: the contested statute was grounded on a congressional finding that partial-birth abortion is never the best methodology for preservation of the life or health of the mother. ... Justice Kennedy's suggestion that an as-applied challenge gives the Court a better opportunity to quantify and balance utility and risk is easily applicable to the assault weapons question.t Body]

Keywords: second amendment, Heller, abortion, assault weapons

Suggested Citation

Johnson, Nicholas James, Supply Restrictions at the Margins of Heller and the Abortion Analogue: Stenberg Principles, Assault Weapons, and the Attitudinalist Critique (June 26, 2009). Hastings Law Journal, Vol. 60, No. 6, June 2009. Available at SSRN: https://ssrn.com/abstract=1494634

Nicholas James Johnson (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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