Snow v. Joe

So they can't figure out what to do with Jodi Arias who either plotted and carried out the cold blooded murder or . . . . Ah, the hell with it. 

Twelve good men (and women) and true couldn't agree unanimously on whether she should be put to death on their direction or spared to spend the remainder of her life in prison with no hope of ever being released.  Execution or Death in Prison.*

Of course, the media knows.  The folks who follow the trial as entertainment know.  Everyone knows.  But those fools on the jury.  Sigh. 

Frankly, there's nothing remotely interesting about the Jody Arias case (unless the near-pornographic salaciousness turns you on).  Well, there is the fact that since the jury couldn't decide the prosecutors can, if they insist on trying to have her killed rather than letting her rot - they get to redo the sentencing phase in front of a brand new 12.  Who will have to learn all the facts and circumstances of the crime, and then all the reasons why she should or should not be --

Good god.  Television may never recover.

Really, though, I didn't want to write about her case.  I have nothing interesting to say about it.  Except, well, it's Maricopa County, and we here at the home office of the Gamso for the Defense blawg haven't been paying much attention to the goings on there since Andy Thomas got his ticket yanked and DOJ finally got around to suing Sheriff Joe.

But now, in one week, there's the penalty-phase mistrial and, finally, a decision in Melendres v. Arpaio.  Friday, the Honorable G. Murray Snow, U.S. District Judge for the District of Arizona (that's him on the right), appointed to the federal bench by President Shrub, issued his Findings of Fact and Conclusions of Law in which he found and concluded that Joe and his deputies operate in exactly as unconstitutional and racist a manner as everybody who actually paid any attention knew they did. 

Their actions, Judge Santos said, violate the Fourth Amendment rights of Latinos in Maricopa County to be free from unreasonable searches and seizures.  And, he said, they violate to "equal protection under the

Fourteenth Amendmentto the Constitution and Title VI of the Civil Rights Act of 1964.

Fernanda Santos in the Times:

At 142 pages, the decision is peppered with stinging criticism of the policies and practices espoused by Sheriff Arpaio, who Judge Snow said had turned much of his focus to arresting immigrants who were in the country illegally, in most cases civil violations, at the expense of fighting crimes. 

He said the sheriff relied on racial profiling and illegal detentions to target Latinos, using their ethnicity as the main basis for suspecting they were in the country illegally. Many of the people targeted were American citizens or legal residents.

To all of which, as you might expect, Tim Casey, a lawyer representing Joe and his boys, said

No flies on us.

OK, I admit that was a bit flip.  Here's what he actually said, according to Santos.

Tim Casey, a lawyer for the Maricopa County Sheriff’s Office, said the office intended to appeal, but in the meantime it would “comply with the letter and spirit of the court’s decision.”

He said the office’s position is that it “has never used race and never will use race to make any law enforcement decision.” 

The office relied on training from the United States Immigration and Customs Enforcement agency, he said, adding, “It’s obvious it received bad training from the federal government.” 

Got that? We didn't do anything wrong. We will of course obey the judge's injunctions, as we always do the right thing.  We're appealing because we always do the right thing.  It's the fault of the federal government that we did the wrong things.  Which we didn't do. 

Anyway, and regardless of the spin, Arpaio and his minions lost.  Which is right and appropriate.  And there is an injunction.

IT IS THEREFORE ORDERED that Plaintiffs are entitled to injunctive relief necessary to remedy the Fourth and Fourteenth Amendment violations caused by MCSO’s past and continuing operations. The MCSO is thus permanently enjoined from:

            1. Detaining, holding or arresting Latino occupants of vehicles in Maricopa County based on a reasonable belief, without more, that such persons are in the country without authorization.

            2. Following or enforcing its LEAR policy against any Latino occupant of a vehicle in Maricopa County.

            3. Using race or Latino ancestry as a factor in determining to stop any vehicle in Maricopa County with a Latino occupant.

            4. Using race or Latino ancestry as a factor in making law enforcement decisions with respect to whether any Latino occupant of a vehicle in Maricopa County may be in the country without authorization. 

             5. Detaining Latino occupants of vehicles stopped for traffic violations for a period longer than reasonably necessary to resolve the traffic violation in the absence of reasonable suspicion that any of them have committed or are committing a violation of federal or state criminal law.

            6. Detaining, holding or arresting Latino occupants of a vehicle in Maricopa County for violations of the Arizona Human Smuggling Act without a reasonable basis for believing that, under all the circumstances, the necessary elements of the crime are present.             7. Detaining, arresting or holding persons based on a reasonable suspicion that they are conspiring with their employer to violate the Arizona Employer Sanctions Act.

And there's going to be a hearing June 14 where they'll all sit down and try to figure out how to make Arpaio actually obey.  Which, you'll recall, he insists he will do since he's never done those things before and certainly won't now because they're right and noble and the American way and the judge said to knock it off and besides, he's appealing to have the ruling overturned so he can go back to doing what he's always been doing which is exactly what he wants not to be ordered to do because then the terrorists communists wetbacks persons of foreign but not northern European extraction who entered this country without authorization from him would win. Or something.

Andy Jackson is said to have said when the Supreme Court told him he couldn't remove the Cherokee to Indian Country,

"John Marshall has made his decision; now let him enforce it."

Patrik Jonsson in the Christian Science Monitor wonders if this isn't a "turning point" for Joe.

But if the court ruling represents a victory for immigration advocates and a legal reversal for Arpaio, it's also clear that, even before the ruling, Arpaio had been losing support among more educated white voters even as opposition against him had galvanized among ascendant Hispanic voters, the Arizona Capital Times newspaper reported recently. Arpaio won reelection with only 50.7 percent of the vote last November, his lowest total.

My friend Nick, who's on the ground in Arizona (though not in Maricopa), had a slightly different take.

People sorta figure he's going to keep doing what he's been doing until he is removed from office, dies, or is sent to prison. 

Which is another way of saying that Joe's likely to channel Andy Jackson's (likely apocryphal) response to a smackdown from the Supreme Court, just changing the name from John Marshall.

Judge Snow has made his decision; now let him enforce it.

Since nobody with any authority in Arizona, and certainly nobody in the Justice Department seems to have the cojones seriously to take Joe on, that leaves the voters and the Grim Reaper.  Of course, Joe just did win reelection.  Then again, he turns 81 in a couple of weeks.

----------
*Actually, it appears that Arizona law also allows a sentence of life with parole eligibility.  All those who think that a likely sentence, feel free to raise your hands now.  That's what I thought.  In any event, parole eligibility isn't the same as parole.  Just ask Susan Atkins.  Ooops, too late.  She's dead.  Died in prison.  After being denied parole. 

First Thing We Do, Let's Kill All the Mexicans

We have, sadly, been down this road before.

I'm not talking Sheriff Joe and his minions since even Joe was too smart actually to announce it as policy.  But it was the key campaign platform of Loren Nichols when he ran for city council in Kennewick, Washington.

Execute undocumented immigrants.  Kill them.  Locally.  By city ordinance.

Sure, the plan was unconstitutional (for many reasons), though his chief opponent (who apparently didn't actually oppose the idea, just didn't give it priority over improving the city's fisc) doesn't appear to have pointed that out.  Really, who pays attention to the Supreme Court, anyway?  It's just nine people who dress funny and tell us whatever they think this week.  We all understand that the actual Constitution is the one that says funny looking people should be killed.

Sigh.

In a three way primary race, Nichols came in second which gave him a spot on the November ballot.  Where he lost.  Got hammered, really.  From the Tri-City Herald:

Kennewick City Council, Pos. 7 Ward 3

Read more here: http://www.tri-cityherald.com/2011/11/08/1710330/election-general-election-results.html#storylink=cpy

Steve Young       6476
Loren Nichols    2796

Everyone from Switzerland who was planning to sneak into Kennewick breathed a sigh of relief.  Everyone of Hispanic extraction or surname who lived in or ever passed through Kennewick, regardless of citizenship, breathed two sighs.

The thing is that bad ideas never die.

And so we come to Joe the Plumber.  You know, the guy whose name isn't Joe (it's Sam) and who isn't a plumber but gee, it's catchy.   Sam is running for Congress against Marcy Kaptur, long-time Democratic Congresswoman from Toledo.

Sam's something of a wild-man having made his conservative bones by mouthing off to Obama about how terrible it is to tax business and the rich since it would certainly hurt his business (which, as it happens, he didn't have, just as his name wasn't Joe and he wasn't a plumber) during a Toledo campaign stop in 2008. But he's made his name as a straight shooter who always tells the truth (except about himself) and who never flinches from being ultra-conservative and politically incorrect.

Which, I suppose, is why we have to take him at his word when he speaks.  Which he did Friday night in Prescott, Arizona at a fund-raiser for Arizona state Senator Lori Klein.  Tom Troy in the Toledo Blade.

For years I've said, "Put a damn fence on that border going to Mexico and start shooting … " That's how I feel. I'm not going to hide it just because I'm running for office. I want the borders protected, and I'm very adamant about that.

Doubt that he said it?  Matthew Hendley in the Valley Fever blog of the Phoenix New Times has the video of Sam doubling down. He says,

"Political correctness will kill this country, and I think it's on the way there right now -- that's why we gotta get people up there to really speak their mind and say what they mean," Wurzelbacher said. "Ya know, for example, I'm running for Congress. How many congressman or people who are running for Congress have you ever heard [say], 'Put borders on the troop and start shootin'?'"

Klein said Sam was kidding when he said he was serious.  Marcy called on Sam to retract the suggestion.

Monday Sam was campaigning in Wisconsin.

Which abuts Canada.  With which we have the largest unguarded border in the world?

They can be sneaky up north, too.

Hang 'em High

Kennewick, Washington seems like a lovely place.  300 days of sunshine a year and beautiful in the sunset (or is that a photo of sunrise?).  And the bridge, bridges really, as the city is on the banks of the Columbia River near where it splits from the Yakima.  It's in the heart of Washington's wine country with some 160 wineries within a 60 mile radius.  There's golf and minor-league hockey and arena football and hydroplane racing and well, gosh, they're even going to dedicate an artifact from the World Trade Center on September 11 at the new sports complex.

On top of that, housing's affordable and it's a great place to raise kids, they say.

Really, you'd just want to up and move there, wouldn't you?

Unless, of course, you happen not to be an American citizen - or maybe just if you happen not to look like one.  At least, not if Loren Nichols should happen to win a sit on City Council.

Oh, sure.  Nichols knows that Kennewick needs to get its budget in order.  Doesn't every city?  And that's a real priority for him.  But first things first.

And the first thing is to . . . wait for it . . .

Kill every undocumented immigrant.

Yep.  He spoke to KEPR-TV.

Illegal aliens should have been shot when they crossed the border.

But since they weren't, and since the feds won't actually execute them, well then it's up to Kennewick.

Nichols: "Kennewick needs to do what's best for Kennewick. We need to take jurisdiction for ourselves and mandate that as the penalty"

KEPR Question: "Mandate death as the penalty if you get caught in Kennewick?"

Nichols Answer: "correct"

Nichols has two opponents in the race.  Steve Young, the incumbent and Kennewick's mayor, thinks Nichols's comments are "inappropriate," but that immigration really is a serious problem.  William Miller thinks Nichols's plan might "alienate voters" and, anyway, goes "too far."  (Perhaps Young and Miller favor LWOP with weekly waterboarding?)

To be fair, Nichols doesn't just want to execute the undocumented.  He also wants to banish Spanish.

The good news is that there's nothing racist about any of this.  We know that because Nichols says so.

This is an issue that doesn't deal with race so I hope it's not interpreted that way. It has to do with violation of our country.

I feel better.  So, I'm sure, do the 17.1% of the population (2000 census data - a quick search didn't turn up figures from 2010) who aren't white.

All of this is pretty clearly unconstitutional.

Which you might want to mention to the next Canadian who slips across the border and heads for Kennewick which is, after all, less than 200 miles away.

You know, tell him before they kill him.

Fixing What's Wrong

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

I'm back to the Second Amendment because of this comment, because I find my own views on the Second Amendment so at odds with how I see the world, and because, frankly, I haven't figured out just what I want to say about Judge Bolton's order in United States v. Arizona or about the recently flaring contretemps (I called it a pissing match when I started writing about it a couple of days ago) among abolitionists over Mumia Abu Jamal, or about the vote in the House to reduce the crack/cocaine disparity from 100:1 to 18:1.

* * * * * * * * *

OK, a moment on the short versions of what I want to say about those things.
1. Arizona.
Good for Judge Bolton.  In case you've been in a cave for the past 48 hours, the Honorable Susan Bolton, Judge of the United States District Court for the District of Arizona, granted a preliminary injunction preventing parts of Arizona's anti-immigrant law.  Here's the New York Times explanation.

“Preserving the status quo through a preliminary injunction is less harmful than allowing state laws that are likely pre-empted by federal law to be enforced,” she said.
“There is a substantial likelihood that officers will wrongfully arrest legal resident aliens,” she wrote. “By enforcing this statute, Arizona would impose,” she said, citing a previous Supreme Court case, a “ ‘distinct, unusual and extraordinary’ burden on legal resident aliens that only the federal government has the authority to impose.”
The judge’s decision was not her final word on the case. In granting the injunction, she simply indicated that the Justice Department was likely, but not certain, to prevail on those points at a later trial in federal court. She made no ruling on the six other suits that also challenged the law.

Essentially, this isn't the last word, or even Judge Bolton's last word, on the merits of the law.  Her ruling grants a preliminary injunction, which means not that the law is unconstitutional but that on review it looks like the government is "likely" to prove at a trial that portions of the law are unconstitutional.  Therefore, those portions of the law don't take effect for now (because you don't want a probably unconstitutional law being enforced while you wait around for the courts to decide whether it is in fact unconstitutional).  Moreover, Arizona can, and says it will, appeal her decision.  In any event, here's Judge Bolton's summary (I'm never going to capture her formatting, so I'm reworking the format and a bit of punctuation.)
Applying the proper legal standards based upon well-established precedent, the Court finds that the United States is likely to succeed on the merits in showing that the following Sections of S.B. 1070 are preempted by federal law:

Portion of Section 2 of S.B. 1070, A.R.S. § 11-1051(B): requiring that an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person.

Section 3 of S.B. 1070, A.R.S. § 13-1509: creating a crime for the failure to apply for or carry alien registration papers.
Portion of Section 5 of S.B. 1070, A.R.S. § 13-2928(C): creating a crime for an unauthorized alien to solicit, apply for, or perform work.
Section 6 of S.B. 1070, A.R.S. § 13-3883(A)(5): authorizing the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States.

S.B. 1070 was not just anti-immigrant. (And as a practical matter, anti-Mexican and people-of-color immigrant; Sheriff Joe and the boys weren't going to be searching for undocumented French Canadians.)  It violated the Constitution in a number of ways.  Consider, for instance, Section 6, which simply says the Fourth Amendment doesn't apply to suspected immigrants without documentation.  Arizona just cannot selectively abrogate the Bill of  Rights - even if it thinks the feds are insufficiently vigilant about enforcing immigration law.
Frankly, I wish Bolton would just wipe out the whole law.  But then I remember what Voltaire taught.

Le mieux est l'ennemi du bien.
(The best is the enemy of the good.)

2. Mumia.
Sigh.  It turns out that back in December, leading up to February's 4th World Conference Against the Death Penalty, US best members of the organizing group (the World Coalition Against the Death penalty) signed a memorandum to the Conference organizers objecting to the major role planned for and around Mumia Abu Jamal.

ECPM has unilaterally, and over objection, determined to give the Mumia Abu-Jamal case a prominent role in the upcoming 4th World Congress Against the Death Penalty, including the participation of Mr. Abu-Jamal's lawyers and his direct participation by telephone. The US members of the Steering Committee of the World Coalition Against the Death Penalty do not agree to this, because it will be counter-productive to our effort to achieve abolition in our country.
The Abu-Jamal case, regardless of its merits, acts as a lightning rod that galvanizes opponents of abolition and neutralizes key constituencies in the cause of abolition. Continuing to give Abu-Jamal focused attention unnecessarily attracts our strongest opponents and alienates coalition partners at a time when we need to build alliances, not foster hatred and enmity.

I can't vouch for the bona fides of the memo.  It seems to have come to light only this week.   But it's also clearly an accurate statement.  There are groups including (and this is relevant here) the Fraternal Order of Police which have been helpful in achieving statutory abolition in New Jersey and New Mexico but which avidly seek the Abu Jamal's execution.  However, to many abolitonists, he is a hero: The quintessential innocent victim of a police and prosecutor and judge frame-up; a powerful, articulate voice against racism, capitalism, and the death penalty.  There is outrage, pretty well captured by this on-line petition and accompanying statement on the horribly formatted home page of the Campaign To End the Death Penalty.

Calling All Abolitionists - Stand Up for Mumia Abu-Jamal!
We, the undersigned, strongly condemn the letter, signed by some US abolitionists, opposing Pennsylvania death row prisoner Mumia Abu-Jamal's participation in the World Congress Against the Death Penalty and claiming that highlighting his case hurts the cause for abolition in the U.S.
(see http://www.thiscantbehappening.net/node/116. See also Dave Lindorff's article about this at http://www.thiscantbehappening.net/node/117 ).
We stand in solidarity with Mumia, who has spent the past twenty-eight years on death row, the victim of a trial and court procedures fraught with racism, and police, prosecutorial and judicial misconduct.
Mumia currently faces a grave threat: the US Supreme Court has accepted an appeal to re-instate Mumia's death sentence, and Philadelphia's District Attorney has pledged his intention to pursue his execution. Mumia urgently needs our support, and we call for a new trial for him now.
We reject any call by abolitionists to put "coalition-building" with law enforcement over and above the struggle for justice of any death row prisoner, be they innocent or guilty.
We also reject the logic of having police organizations that fight tooth and nail for the execution of those with unpopular views as a partner or ally.
Many police organizations – as well as prosecutors and judges-- have organized against our efforts to win justice for Mumia, and have served as guardians of an unjust "justice" system.
We deplore divisive strategies that seek to exclude death row prisoners from our movement. We call on all participating organizations in the World Congress to re-affirm their support for Mumia Abu-Jamal and all death row prisoners in our struggle to end the death penalty worldwide.

I've written about Mumia before as the nation's leading death row celebrity.  His fans (and there are many) think I'm insufficiently deferential to his importance to the abolition movement (and the movements against racism and classism and capitalism and what-all ism).  I'm not interested in throwing him under the bus (which is what supporters say the memo attempted to do).
He should not be executed.  That's not negotiable.
He IS a powerful voice that should be heard.  There is much to commend him.  And like so many others on death row, he is clearly the victim of shoddy police work, prosecutorial misconduct, and biased judging.  (None of which makes him factually innocent; I'm agnostic on that question, as I generally am about claims of factual innocence.)
But he is divisive.  More to the point, he's a distraction.  It may be that he is a particularly powerful voice overseas, but we are not overseas.  While I welcome international pressure and efforts on behalf of abolition, they are necessary and vital to the cause, we in the United States must win the struggle for abolition here, in the United States.
There are too many cases, too many injustices, too many wrongs in too many places, to hang up one poster.   Here's the question to ask before putting Mumia (or anyone else) front and center: will he gain us more support from those we need - judges, legislators, governors, voters - than he will cost?
And if the focus is abolition rather than fixing all that's wrong in the US including abolition, will he gain more support on that issue?
The anti-abortion but also anti-death penalty Catholics?  The I-don't-give-a-damn-about-social-justice libertarians (no, that's not all libertarians) who think the government is too incompetent to be deciding who to kill?  The liberals who fear anyone who looks even a little non-mainstream?  The conservative bankers who think there's a better use for the money we pump into killing people?  The folks who think we should give all people charged with crimes, innocent or guilty, LWOP because it's worse then death?  The people who think the system is broken but that executions are fine in principle?
Mumia gets attention because he's such a powerful voice and because his lobby has lots of powerful voices.  That's no small thing.
I'm not so sure that giving him yet more platform space helps the abolition cause more than it hurts.  I'm certain it's a discussion that shouldn't be had in hyperbolic terms and open letters.
If the goal is abolition rather than rabble rousing, the question is how best to achieve it.
And so there's Voltaire's lesson.

Le mieux est l'ennemi du bien.

I'd like to change many things in this country.  But if I can achieve a major victory today, I'm not going to refuse because there are other things that need to be done also.  Don't need one global correction.  I'll take the wins one at a time.
But they have to be wins.   I won't trade Mumia's life for another.  But that's not really the choice, I don't think.
3. Crack.
How many years havewe been after this?  And yet again, Voltaire.

Le mieux est l'ennemi du bien.

According to Grits Ron Paul had the line of the day.

Texas Congressman Ron Paul quipped that instead of the "Fair Sentencing Act" the bill should be called the "Slightly Fairer Sentencing Act" because they didn't reduce it to 1:1, calling to repeal the entire war on drugs.

Yeah.  But damn, it's a hell of an improvement.   We've been locking up people at an absurd rate, for preposterous lengths of time, on the faulty assumption that we can stop the use of illegal drugs by locking up enough of them.
The war on drugs is a failure.  Complete and abyssmal.  Locking up druggies accomplishes nothing but making criminals.
That's not quite true.  It also destroys families, increases crime, wastes billions of dollars a year, and makes us all less safe.
Treating crack as the worst drug in the history of drugs does the same thing - but puts a special focus on hurting the poor and members of minority communities.  And it's a fraud in another way.  Crack is cocaine.  Any disparity in sentencing approach is simply dishonest.  Still, 18:1 is a hell of a lot better than 100:1.  Raising the threshold for mandatory minimums won't solve the problems.  It's not the best.
But it's damn well a step in the right direction.

* * * * * * * * *

And so there's the anonymous commenter.  Here's what he (I assume "he") wrote.

In 1755 Samuel John­son pub­lished the the “Webster’s dic­tio­nary” of the day.
It was the defini­tive dic­tio­nary of the Eng­lish lan­guage at the time the US Constitution was written.
Under the word “arms” the 1755 def­i­n­i­tion was ” weapons of defense or armour of defense“
The definition of arms did not restrict the term to portable hand held weapons like mus­kets and swords, (as some revi­sion­ists who try to rein­ter­pret the sec­ond amend­ment claim)…but even included the most ter­ri­ble weapons of the day…the can­non.
Which means that Amer­i­cans are not lim­ited in what type of weapon they can own: a stinger mis­sile, a tank, a bazooka, a flame thrower. Any “weapon of defense” is fair game. Machine guns, hand grenades, RPG’s all are included in the sec­ond amend­ment. I would even go so far as to say that Americans even have the right to possess biological weapons.
Amer­i­cans have the right under the con­sti­tu­tion to unre­stricted access to any weapon that can be use in any pos­si­ble way in defense of the coun­try or the individual.
There are those, even some in the NRA, who would like to draw a distinction between a handgun and , say a bazooka, a missile or a suitcase nuke. But based to the second amendment and the definition of "arms" , Americans citizens have the right to own any weapon they wish.
No exceptions. 

It's not that simple. 
Dr. Johnson's Dictionary is a quirky thing.  It's revered for its wisdom, wit, and erudition.  Rather less so for its definitions.  If you want to know what a word meant in England in the mid-1700s, you'd do better to study the OED than to read Johnson's Dictionary.
I'm not bothering to walk across the room to check what the OED says about "arms" because I don't think it much matters.
First, it doesn't matter because words don't stand by themselves.  They occur in contexts which limit their meaning.  A basic rule of interpreting all language for legal purposes (and enough of the drafters were lawyers that they clearly understood this) is that no part of a written document is to be ignored.  That means that the part about the "Militia being necessary to the security of a free State" is not just excess.  What exactly it means, and why it's there, is key.  Another part of how you interpret is in light of what the document's author's intended.
Put all that together and you come to my conclusion (or at least I do):  The Second Amendment secures your right to possess weapons suitable to overthrow the government.  And it secures that right for that purpose and only for that purpose.
Second, it doesn't matter because whatever the words of the Second Amendment or the intent of the framers, the courts (and regardless of how you may feel about it, they are the final arbiters of what the Constitution does and doesn't mean) will never say that individuals "have the right under the con­sti­tu­tion to unre­stricted access to any weapon that can be use in any pos­si­ble way in defense of the coun­try or the individual."  Nor will they say that individuals have the right to whatever weaponry they might need which would enable them to rise up in successful revolution.  Ain't gonna happen.
And it probably shouldn't.  For one thing, the consequence is insane when we have the technology we do today.  I'm sorry.  I know there are folks who think we'd all be safer and crime reduced if everyone were armed.  But nukes are simply different from conventional weapons.  The potential for an accident, and the consequence of that accident, changes the reasonable terms of the discussion.  So does the potential for what happens when someone with an h-bomb in the basement suddenly goes bat-shit crazy.  (And yes, people do that sometimes.)
For another, none of the provisions of the Bill of Rights has ever (that's ever) been treated as absolute.  Freedom of speech can be abridged.  The right to free exercise of religion has limits.  You can be searched and seized without a warrant or probable cause or even good reason.  The right to a fair trial is limited.  So is the right to - actually, so is the right to everything.  Why imagine that the Second Amendment, whatever it might mean by pure parsing of words, is the only provision that is to be applied by purely parsing words?
Besides, as  Eugene Volokh pointed out in the post that got me started on this last week, even if you try to take the Second Amendment literally, you have to decide what's an infringement and what isn't. 
So where are we?
I hate the Second Amendment.  I've said that before.  I hate guns.  I think that as a matter of public policy we should disarm everyone.  But the Amendment is there, and I believe in the Constitution.  I'm happy to have philosophical discussions, but if you want to talk about giving teeth to the Second Amendment, you won't get there by advocating the right to revolution or the right to a tank in your back yard.

Le mieux est l'ennemi du bien.

In this best of all possible worlds.

Le mieux est l'ennemi du bien.