Posted on 01/14/2008 7:32:42 AM PST by jdm
The Bush Administration has filed an amicus brief in the D.C. gun case, which you can read here. The Administration agrees that gun ownership is an individual right, but says it is subject to reasonable restrictions. Here is a representative paragraph:
Although the court of appeals correctly held that the Second Amendment protects an individual right, it did not apply the correct standard for evaluating respondent’s Second Amendment claim. Like other provisions of the Constitution that secure individual rights, the Second Amendment’s protection of individual rights does not render all laws limiting gun ownership automatically invalid. To the contrary, the Second Amendment, properly construed, allows for reasonable regulation of firearms, must be interpreted in light of context and history, and is subject to important exceptions, such as the rule that convicted felons may be denied firearms because those persons have never been understood to be within the Amendment’s protections. Nothing in the Second Amendment properly understood—and certainly no principle necessary to decide this case—calls for invalidation of the numerous federal laws regulating firearms.
Allah seems to treat this as though it’s weakness on the part of the Administration — although it’s hard to know whether he’s just having a little fun throwing red meat to his readers.
But I think the Administration is correct. I support the Second Amendment — but I don’t want felons carrying firearms, and I don’t think the Founding Fathers would have been upset at a law preventing that.
Where the rubber hits the road is in the application of the principle in other contexts. Can the government ban say, machine guns? Purists would say no — but would they say the same thing about nuclear weapons? If the idea behind the Second Amendment is to give the citizenry a credible threat of violence against an oppressive government, then citizens need nukes, right? Which means that when the TSA finds one in some guy’s briefcase, they should wave him though — right? Second Amendment, baby!
I don’t think any of us thinks the absolutism goes this far. So yes, there will have to be “balancing.” That’s okay — we do it for the First Amendment all the time, and that is also a cherished freedom and individual right. For example, you can’t libel people without consequence. All rights have some limits. What those limits are is the real question.
“...compromise...However, the only reason that this case has a pretty good shot at POTUS defining the 2nd A as an individual right is because we have Roberts and Alito on the bench.”
Actually, it was the unwillingness of the conservative base to compromise that gave us those fine gentlemen.
How do you think Miers would have voted?
Once a person is convicted of a crime that involved the use of a gun, he should be severely punished--no parole given, no excuses made.
Our rights should not be infringed because there are folks who commit crimes using a gun.
Ignorant, stupid, or evil. They've gotta be one of 'em...
The problem with using the analogy of falsely shouting fire in a crowded theater to banning possesion of arms is that the person still has his means to shout fire, i.e., his vocal chords. Banning the implements of self defense would be the same as removing our vocal chords so we can’t shout fire and thereby cause injury.
CONCLUSION
The Court should affirm that the Second Amendment,
no less than other provisions of the Bill of Rights,
secures an individual right, and should clarify that the
right is subject to the more flexible standard of review
described above. If the Court takes those foundational
steps, the better course would be to remand.
Respectfully submitted.
Why is it that a `made up’ constitutional right like “the right to privacy” or a “suspect category” receives the `strict scrutiny’ standard of review, while the 2nd Amendment should be subject to—at least according to this administration `mouthpiece’: “a more flexible standard of review”?
“When the government can define the limits of your rights, you don’t have any.”
Bingo.
A right is a right. A privilege is how Bush’s DOJ views firearms ownership.
How about seeing them legally allowed to own cars, knives, gasoline, matches and baseball-bats?
“There’s an argument elsewhere in this thread that alludes to nuclear weapons. Explosive devices are not generally considered to be firearms, which is the subject of this action.”
The power of a nuclear weapons can’t be controlled by an ordinary citizen and would threaten the lives of others, therefore, the banning of nuclear weapons is within the constitution since the rights of others are threatened. The same argument can be made regarding biological weapons ownership. A Firearm on the other hand can be controlled by it’s owner and is not indiscriminate in nature, therefore firearm ownership falls under the protection of the second amendment.
That being said, from a technical standpoint a nuclear weapon is an “arm” as defined by the 2nd amendment.
strict scrutiny is the correct standard - and SCOTUS needs to realize that adopting any other standard will let the government’s nose under the tent farther than it already is wrt the 1st, 4th, and 5th amendments...
Exactly. Are they putting America on the road to gun restriction?
Where in the Second Amendment do you see the word "firearm"? Nuclear weapons are commonly referred to as arms, as in a "nuclear-armed Iran".
sorry.......guess i’l have to go out and buy me one now.....
EXACTLY
Let me know what kind of a price you find; I'm in the market myself.
“Actually, it was the unwillingness of the conservative base to compromise that gave us those fine gentlemen.
How do you think Miers would have voted?”
You bring up a great point. However, a liberal like Gore or Kerry would not have been beholden to the conservative base. They would have been beholden to the liberal base which would have made them nominate as liberal a judge as possible. We have sway over Bush. We have no sway over a Kerry or Gore.
BTW, in answer to your question, Harriet would have consulted with George Bush first to see how he wanted her to vote... : )
I’m sure nobody here even remotely thinks Bush has EVER been one to stand up for the Constitution concerning the 2nd Ammendment. He always said that he would reinstate the AWB if it ever came across his desk!!!
So your point is that since nuclear arms should be restricted then all arms should be restricted. Or are you just being sarcastic for the heck of it?
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