I raised the issue in a Virginia Trial Lawyers' Ass'n. listserv, and got one response:
I don't believe the same principle would apply because the gun laws would survive a strict scrutiny test:
- there is a "compelling state interest" behind the challenged policy, and
- the law or regulation is "narrowly tailored" to achieve its result.
People raised a similar issue with respect to private drug use in the home on the ground that
Roe v. Wade said the state can't invade one's personal, private medical decisions. I think the lawyer I quoted actually believes what she said, but more importantly, she's right that the court could draw a distinction between the two types of case, and probably would on the basis of politics. Keeping us "physically strong, mentally awake, and morally straight" used to be considered "compelling state interest" justifying the use of the police power which only the states have. I don't think the other side even argued on the basis of the need to protect the public health, welfare and morals, because, when you come down to it, in a grossly immoral society, no one wants to argue about regulation of morals. And protection from evil dangerous guns is seen as different from protection from evil dangerous homosexuals.
And to some extent, I agree with that. The whole regulation of marriage and divorce thing, as far as the state is concerned, is a mass of "legal fiction" (which is the technical term for what we in the community refer to as BULLS***). Real marriage is something the state can't touch, so I'd treat all such communal living arrangements the same way we do business partnerships. You could marry your cow if you want to, if I were king, or your twelve-year-old cousin (Great Balls o'Fire!).
Yes, I would completely wipe out "Domestic Relations" as a field in the practice of law. Think how many of the worst lawyers would be out on the streets with nothing to do. I could kill two stones with one bird!
