DOJ Brief: affirms an individual right toward arms.
Heller Brief: dito.
DOJ Brief: argues that the lower court was too broad in its ruling which would make the purchase and ownership of full auto weapons legal.
Heller Brief: argues that the lower court did not address full auto weapons and further argues that the decision doesn’t have any impact.
DOJ Brief: recommends a remand back to the lower court for refinement of the decision.
Heller Brief: recommends that respondant’s claims were valid and the DC handgun ban is unconstitutional.
I suppose my curiosity is that are all the 2A advocates here on FR going to call Heller a traitor just as they called the Bush Admin. a traitor? I mean, there is not much difference in what the briefs assert and recommend. Note that the DOJ merely noted that they had an interest as the Handgun ban was affected. Nowhere did they assert that the handgun ban should be upheld (unless I simply missed it).
And, are the fringe 2A advocates going to bellyache because this brief, as I used in the previous thread, also appeals to Miller, and does not acknowledge WMD’s and other certain types of weapons as protected by the 2A?
Just some curiosity of mine.
To win, Heller has to show he's playing well with others. Miller is a reality that has to be fit into; Heller is not out to overturn Miller if he can win within the confines thereof. Heller also takes pains to agree with others insofar as any common ground can be found - and still win by commandeering that ground.
Actually, the DOJ brief is pretty darn good, agreeing with Heller on most counts. The betrayal comes from what amounts to "why yes Heller is right and DC is wrong, but we don't like where that reasoning will end up so please bury the case."
To win, Heller has to limit his own case to mundane arms owned for home defense. He _has_ to draw lines cutting off discussion about red herrings like full-auto, military-use-only arms, etc. If he opens up discussion to those ends, his case will end.
You captured the core difference between the two briefs already:
DOJ Brief: recommends a remand back to the lower court for refinement of the decision.
Heller Brief: recommends that respondant’s claims were valid and the DC handgun ban is unconstitutional.
Hardcore 2ndA types (yours truly included) _are_ going to complain about this brief. I really don't like some of the walls he builds (esp.: only common-use, to wit stuff you'd own for non-military use, arms are protected). We do, however, realize the difference between tactics and strategy. If he had argued that full-auto should also be legal, he would have over-expanded the case and scared some judges into terminal opposition.
Nowhere did [the DOJ] assert that the handgun ban should be upheld
I do contend that the bellyachers complained too much about the DOJ brief. The brief was disappointing, but was the logical conclusion of where the DOJ stands: support RKBA, and preserve 20,000 anti-RKBA laws at the same time; the only sane conclusion is to remand and seek some "intermediate scrutiny" that might maybe possibly find a rational resolution (and just maintain the status quo until then). The Executive Branch is tasked with doing whatever Congress decrees, which at this point is becoming impossible. They should be happy that the brief spends more time neatly demolishing DC's stance.
Upshot: Heller had to stop the discussion somewhere, and does so with vague claims that maybe hardcore military arms can be regulated anyway. He just wants an unlocked, loaded, functional Glock in his nightstand. He does not want to get caught up in distracting discussions about "bear", full-auto, WMDs, etc. Let's get this victory, get some core original principles back on the table, and then address 922(o)-type issues. It's the respondent's brief, not the SCOTUS final ruling.