Gun-rights arguments (short and sweet analysis of the DOJ's amicus brief for Heller nee Parker)

The Washington Times ^ | January 24, 2008 | Masthead Editorial

[neverdem]

Last week, the Bush administration put troubling distance between itself and principled Second Amendment defenders. We refer to the amicus brief that Solicitor General Paul Clement filed Friday in support of the plaintiffs in District of Columbia v. Heller — the D.C. gun-ban challenge, widely expected to be the court's most significant gun-rights case in 60 years when a decision is reached.

The brief sides with the D.C. plaintiffs seeking to exercise their Second Amendment rights, but it then expends much effort worrying that an end to gun bans like the District's would mean an end to most types of federal firearms regulation, which is something to consider after, not before, the constitutional issues are resolved. Next, it proposes much fact-finding by judges in a new balancing act whose effect would be to usurp legislative priorities. Conservatives normally call this "judicial activism."

In short, this is no full-throated and principled defense of gun rights as they are inscribed in the Constitution. In fact, the brief explicitly rejects the arguments of D.C. Circuit Judge Laurence Silberman, whose opinion last March is a cardinal example of constitutionalist argumentation. Judge Silberman affirmed the common-sense notion that the plain language of the Second Amendment — "the right of the people to keep and bear arms, shall not be infringed" — means what it says. The noted liberal Harvard University legal scholar Laurence Tribe has endorsed this literalist interpretation of the Second Amendment. It is the emerging consensus view and the correct one, however much gun-control advocates or the government of the District of Columbia may lament it. (Is the Justice Department throwing the gun-control lobby, or its own regulators, a bone?)

Some speculate that the brief is meant to appeal to Justice Anthony Kennedy, a pivotal justice on the high court. Justice Kennedy's fifth...

[neverdem]

IMHO, this is the best analysis of the DOJ's attempt to infringe the Second Amendment.

Parker v. Washington D.C. in HTML courtesy of zeugma.

We also note that at least three current members (and one former member) of the Supreme Court have read “bear Arms” in the Second Amendment to have meaning beyond mere soldiering: “Surely a most familiar meaning [of ‘carries a firearm’] is, as the Constitution’s Second Amendment (’keepand bear Arms’) and Black’s Law Dictionary . . . indicate: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.” Muscarello v. United States, 524 U.S. 125, 143 (1998) (Ginsburg, J., dissenting, joined by Rehnquist, C.J., Scalia, J.,and Souter, J.) (emphasis in original). Based on the foregoing, we think the operative clause includes a private meaning for”bear Arms.”

[SWAMPSNIPER]

I regret not having another chance to vote on “W”, this time, against him, for this unforgiveable treachery!

[DoughtyOne]

I got one in against him and then I cast a vote for him in 2004. What a waste of time. I wish these guys would pick up sticks and register in the party they serve.

[Lancey Howard]

Many conservatives burrowed within the Department of Justice have long complained that Gonzales (therefore, Bush) has permitted career government employees and hold-overs from Democratic Administrations to remain in perches of power and thereby water down conservative directives from the top. As one conservative and Federalist Society member in the Justice Department told me: “This is definitely not Ronald Reagan’s Justice Department, I assure you. You have holdovers from Clinton calling the shots in a lot of places here.”

John Gizzi from: Should Gonzales Go?
Human Events | March 20, 2007

[Harvey105]

A lot of us groused when Bush didn’t get rid of the Clinton appointees. At what point to we put the blame where it belongs and call them what they are — the Bush Administration?

[neverdem]

Thanks for your comments. It's not over yet.

The GOP needs a brokered convention in 2008

[JudgemAll]

Bush does not understand the system of weights in laws.

He weighs the numerator but not the denominator, resulting in a net liberalness. The same thing goes with illegal immigration. Does it dawn on him that there is such a thing as delegalizing the rights of every day Americans by legalizing illegals?

Again, bad lawyers are spinning Bush’s defeats and caving down as a form of “good social and technical progress” solutiion. Kind of like a lawyer who cannot win a case in divorce for a man and thus spins his nincompoopness, uselessness and idiocy into a “win for the children” BS.

We saw also how the Jews went to the ovens in WWII with this kind of mentality...

He is not a real executive, because he listens to legislators and lawyers and thus becomes influenced by them, he acts as a legislator. He does not understand the influence he is under. It’s total BS.

Democrates have been playing this game on us for a long time, and we keep screwing ourselves and this country over and over again. It’s time we brought back real initiative, real enforcement, real executive, and not this mushy stuff.

[lentulusgracchus]

Concurring bump.

Saw this coming, tho', when I saw the basic gist of the Adminstration's Emerson brief. Bush ordered DoJ to pull their punches. They should have gone with the Texas district court's decision for Dr. Emerson right down the line. Emerson's attorney had compiled a powerful complaint based on the 2nd, 5th, and 14th Amendments against the Violence Against Women Act (VAWA) provisions that resulted in his felony indictment for owning firearms at the moment that a state divorce-court judge's gavel came down and granted Emerson's vindictive shrew of a wife a restraining order (which she promptly broke by coming to his office to keelhaul him about some other picayune complaint). VAWA should have been found unconstitutional on 5th and 14th Amendment grounds alone (due process). Too, the stripping of important civil rights over a misdemeanor or a restraining order should have received strict scrutiny as well.

In my own unlettered opinion Mrs. Emerson's conduct should have mooted her complaint -- she created the problem -- but that wasn't the issue: VAWA was. The Xlintonx had chosen Emerson as their political poster-boy for "we hang husbands for the women's vote".

The Bush Administration's brief validated VAWA and Emerson was remanded on narrow grounds by SCOTUS and went to prison. Bush failed to fight for the Second Amendment (or the Fourteenth, or the Fifth) and he failed to fight for fairness for Dr. Emerson. Instead, he made sure that the charge of the district court judge's decision was blunted, and a man unfairly treated was sent to prison so the Clintons could have their precedential "political" win.

[joe fonebone]

For me....starting today, very good observation...

[Jabba the Nutt]

It's the 'new tone'. Bush makes nice to the liberals and they stab him in the back over and over and over. Then Bush plays nice with the liberals. And they defame him, lie about him and attack him. Then Bush plays nice with the liberals. And their government bureaucrats undermine his policies, sabotage his war effort and attack him from within. Then Bush plays nice with the liberals.

At some point Bush has to take the blame. He's over 7 years into his administration and he still hasn't cleared the saboteurs out of his administration. At some point, we've got to admit that the liberals are saboteurs of Bush's administration, they're part of his plan. They make his policies. They run the show.

My plan is 'no more Bushs'.

[snowsislander]

Judge Silberman affirmed the common-sense notion that the plain language of the Second Amendment — "the right of the people to keep and bear arms, shall not be infringed" — means what it says. The noted liberal Harvard University legal scholar Laurence Tribe has endorsed this literalist interpretation of the Second Amendment. It is the emerging consensus view and the correct one, however much gun-control advocates or the government of the District of Columbia may lament it.

Yes, and I hope that this consensus view is the view that prevails in the Supreme Court.

[driftdiver]

” At what point to we put the blame where it belongs and call them what they are — the Bush Administration?”

They became the Bush Administration when he agreed to keep them in his administration.

[from occupied ga]

I regret not having another chance to vote on “W”, this time, against him, for this unforgiveable treachery!

This is what happens when the choice is always for the lesser of two evils. You still end up with evil.

[hellbender]

At some point Bush has to take the blame. He's over 7 years into his administration and he still hasn't cleared the saboteurs out of his administration.

His father did the same thing, throwing away the "no new taxes" pledge to make nice with the libs, then letting them stab him in the back for doing so. This is what you always get with RINOs and Pubbie moderates. They have no fixed conservative principles, and the liberals supply alternative "principles" through their control of the media and the DC careerists. It's often hard to say whether the Bushes are just stupid (no "vision thing"), or are deliberately sabotaging the conservative movement. The latter is the effect they have had, whatever their actual motive.

[Joe Brower]

[RKV]

“Troubling?” Yes. Unexpected? No.

And the DemocRATs are worse. Where does that leave us gunnies? Taken for granted as usual. The Republicans had the White House, the Senate and the House of Representatives and didn’t repeal any of the unconstitutional enactments we have been burdened with (I am not going to give them the undeserved title of “laws”). Not a one. I guess we know where we stand now folks.

[Dead Corpse]

This is why getting a pro-2A conservative on the ballot was so imperative this election season.

Unfortunately, there are only two left. Huckabee, who is at best a RINO, and Paul... the Crazy Libertarian Uncle.

We are SO screwed...

[Sender]

The same kind of reasoning could well be applied if illegal immigration or abortion were going to the USSC. The DOJ could say that of course we have a duty to protect the border, of course we have a duty to protect the unborn, but if we destroy the status quo, these are all the consequences that might result. So just leave it alone.

This is no constitution at all! I feel infringed.

[robertpaulsen]

That was a "short and sweet" analysis"? Hardly. More like a gloom and doom, "the sky is falling" Chicken Little editorial.

Short and sweet? The Justice Department agrees with the DC Circuit's decision on an individual right to keep and bear arms. This is a major endorsement. This is also consistent with Ashcroft's 2001 memo stating an individual right and the lengthy 2004 memo from the Justice Department supporting the individual right.

The ONLY area where it differs is how the U.S. Supreme Court is to evaluate Congressional regulatory laws. The DC Circuit says that any federal law concerning guns is subject to "strict scrutiny" -- identical to federal laws regulating speech. The DOJ says they only need to be subject to a "rational basis" review by the court.

THAT'S the "short and sweet" analysis.

[TalonDJ]

didn’t repeal any of the unconstitutional enactments we have been burdened with

The let the AWB sunset. For that alone I am happy. More would have been better. They also shot down several major attempts to allow manufacturers to get sued for illeagal use of their arms. They were not totally useless.