At least Heller is better than Kelo.

I don't deny that it is.

My thoughts are closest to Jacob Sullum's:

The Court indicates that laws regulating the sale of firearms and prohibiting concealed carry, gun ownership by "felons and the mentally ill," possession of "unusual and dangerous weapons" (as opposed to weapons in common use for lawful purposes), and possession of firearms in "sensitive places" such as schools and government buildings are consistent with the Second Amendment.

I posted yesterday that I thought that Scalia's language at the bottom of page 52 of the slip opinion was the key to an elegant theory of application of the Second Amendment. The phrase "in common use for lawful purposes" suggests a guide for determining the extent of the right that avoids obnoxious balancing tests and varying degrees of scrutiny, etc.

One can interpret Scalia's language to set out the parameters of protected gun ownership: Individuals have a right to own and maintain in their homes arms that are commonly used for lawful purposes, and which may serve as the expedient arms of an emergently mustering militia. This creates an elegant guide because the "lawful purposes" are relatively identifiable: self defense, hunting, sport shooting, controlling animal predators, and such. By linking the scope of the Second Amendment to a "lawful purpose" it becomes quite easy to justify bans on hand grenades, machine guns, claymore mines, and shaped charges. The lawful purposes of such weapons would be suspicious. Courts would not have to balance the public utility of permitting ownership of these weapons against the potential harm; they would simply have to find that the weapons are not "in common use for lawful purposes."

Since Scalia specifically mentioned the right of self defense, any regulation that would prevent persons from using those types of firearms that are commonly used for that purpose would be void. This should be a straightforward determination regardless of the level of scrutiny applied. The cosmetic regulations that were so easily neutered in the assault weapons ban would be irrelevant, since it would be the function, rather than the appearance that mattered.

Once the inquiry has satisfied that a weapon is of the type commonly kept for lawful purposes, ancillary schemes to limit the right to such weapons, such as conditioning ownership on the discretionary approval of a government official, would be prima facie void.

The key to firearm jurisprudence and protection of the right keep and bear arms would be faithful deference to the traditional "lawful purposes" for which firearms are useful. Such purposes are part of the historical record and are largely common sense, so it should be expected that they would define a floor, below which legislatures could not impose. Attempting to limit guns by limiting the "lawful purposes" for which they are used should fail under Scalia's reasoning because the defining purposes were those necessarily incorporated into the Second Amendment when it was adopted. The list of relevant purposes should expand, rather than contract, over time.

Chris, read my last paragraph:

Attempting to limit guns by limiting the "lawful purposes" for which they are used should fail under Scalia's reasoning because the defining purposes were those necessarily incorporated into the Second Amendment when it was adopted.

That certainly sounds like "language designed to soften its harder edges" to me.

But, where are the harder edges? Who wants open carry in schools and government buildings? (Mass murderers.) Who wants violent felons having guns? (Violent felons.) Who wants mentally disturbed people with guns? (Mentally disturbed people.) And who wants a totally unrestricted free-market of gun sales? (Nobody.)

This is called "taking the crazy left-wing scare-tactics off the table".

Kirk,

I should have been clearer. Who wants that constitutionalized? No one. It's a state law issue.