Promises breached (The Department Of Justice's weasel brief in D.C. v. Heller)

Washington Times ^ | February 14, 2008 | Robert A. Levy

[neverdem]

If you think the District of Columbia's ban on all functional firearms in all homes is a reasonable regulation under the Second Amendment, you'll love the friend-of-the-court brief filed by the Bush administration in D.C. v. Heller, now before the Supreme Court.

The Department of Justice's (DOJ) previously stated position is that the Second Amendment secures a right of individuals not restricted to militia service. But astonishingly, the Justice Department now recommends an elastic standard for determining whether a handgun ban is reasonable. According to the DOJ, the courts should consider the nature and functional adequacy of available alternatives. That may sound sensible at first blush, but it could be fatal to the Heller litigation.

Here's the rub: The Justice Department says the Court of Appeals ruling that overturned the D.C. ban might cast doubt on the constitutionality of existing federal legislation, including machine-gun regulations. So the administration urged that Heller be returned to the lower courts for appropriate fact-finding to determine whether rifles and shotguns in the home, as permitted by the D.C. Code, are an adequate substitute for handguns.

That came as quite a shock to those of us who believed the administration's professed fealty to gunowners' rights. What we got instead was a recommendation that could be the death knell for the only Second Amendment case to reach the Supreme Court in nearly 70 years.

Rather than a foursquare pronouncement that the D.C. handgun ban is unreasonable by any standard, the Justice Department has essentially endorsed years of depositions and expert testimony, and a rerun before a less hospitable Supreme Court.

In effect, a conservative administration has thrown a lifeline to gun controllers. Following the DOJ blueprint, they can pay lip service to an individual right while simultaneously stripping it of any real meaning. After all, if...

[Atlas Sneezed]

1) every gun owning lawyer reading this needs to be filing a pro gun brief in this case, or else you will soon be non-gun owning laywers (and what criminal prosecutor wants to be a non-gun owning lawyer?)

---

The time for filing is over, and there are plenty of very good briefs filed. SCOTUS isn’t a poll to Freep.

[neverdem]

The way (the question) was written is why Roberts won’t go our way, regardless of the intent...

IMHO, that's the best thing going for an individual right.

Court agrees to consider D.C. gun ban (The court...will limit its ruling to one question!!!)

The court said yesterday it will limit its ruling to one question: whether D.C. laws "violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes."...

[Eagle Eye]

Thank goodness we have a Republican in the White House.

[Eagle Eye]

I like your reasoning.

IMO, if a convict has served his sentence and is freed, then he should be able to have 2A rights restored.

If a convict is so dangerous that he cannot be trusted with a weapon he shouldn’t be walking the streets.

[publiusF27]

I wouldn't fret too much about throwing in a bone about machine guns, which aren't even germane to the question before the court anyway.

I'm worried for two reasons:

1. Weapons necessary to defend freedom are what the 2A is all about, and if that doesn't mean machine guns, why do our soldiers carry them?

2. I'm more concerned about HOW this bone is being thrown. The PRO-GUN side is saying that a weapon has to be commonplace among civilians in order to merit 2A protection. That's just as much a misunderstanding of Miller and the amendment itself as the collectivist/militia interpretation we are seeking to overturn. I don't want to see it enshrined in a Supreme Court decision.

[mvpel]

whether D.C. laws "violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes."

That is the question. The court will not be addressing the question of machine guns in any way shape or form that is anything other than dicta.

They will determine what is a Second Amendment right, how it applies to "handguns and other firearms," owned by private individuals who have no link to a militia, in their homes.

If throwing that machine gun bone prevents the court from engaging in "Dred Scott" logic of ruling on the implications ("machine guns? can't have that!!") rather than the principles, and thereby prevents another Civil War, it's worth the price of a slightly more uphill battle to rightfully expand Second Amendment protections to machine guns later on, as I see it.

[publiusF27]

OK, OK, I won’t worry! ;-)

(now what am I gonna do????)

[William Tell]

stevie_d_64 said: "The way (the question) was written is why Roberts won’t go our way, regardless of the intent..."

I don't understand why you say this. Narrowing the question in this manner is a sensible thing to do and was necessary, according to comments I have read, because the original complaint filed by DC was legally unintelligible.

Roberts, as I recall, is very much of the opinion that the Court should rule as narrowly as possible with attention only to the case before them. The way the question is worded, the Court will have to find that the Second Amendment is an individual right and that strict scrutiny is the proper standard in order to uphold the DC Circuit opinion.

Because DC is totally under the control of Congress, this case will not address "incorporation" under the Fourteenth Amendment. That means that a proper decision will only be a triple, instead of a home run. We'll be only a sacrifice fly or a bunt down the first base line from scoring BIG TIME.

[William Tell]

publiusF27 said: "... that what Levy is doing is a clever strategy which may well win the battle at the cost of losing the war."

It was absolutely essential that Levy include all relevant arguments in support of Heller, given that the Miller decision is "binding" precedent. If it is possible to decide Heller without throwing out Miller, then that makes the argument for Heller stronger, regardless of the Constitutional errors in Miller.

It certainly does not mean that Levy agrees with Miller or that the Supreme Court should not dump Miller at the first opportunity. Levy is arguing that no decision overruling Miller is necessary to decide Heller.

My hope is that the Supreme Court will dump Miller. The plain language of the amendment protects all arms. If the Founders only meant to protect some, they knew how to say so.

[stevie_d_64]

...in their homes...

Thats a point where they can still regulate and infringe upon those folks “outside” their homes...

See, the question is written in a narrow fashion, yet there are those “expecting” a broad opinion...Thats not going to happen...

Sure, we may see an affirmation of the individual right, but it will never be given in a broad manner...

Sorry to be such a negative nancy on this for so long, I just see these amicus briefs and shake my head...

I guess we’ll just have to see how its going to go...

[stevie_d_64]

I understand your optimism, I agree in spirit...

See what I wrote to neverdem in the last post...I believe it is a narrow question as you say, and I agree it is well contained, that may force a narrow opinion, if it goes in our favor I will be surprised because there is expectations in some other discussions that this should be ruled with a broad brush at the end of the day...

I dissagree with that synopsis...

Unless they come back with instructions calling for an immediate review and recinding of gun control laws that restrict or infringe upon our inalienable, individual right to keep and bear arms as the original intent of the Amendment states, then they win, because they will keep any action tied up in the courts on appeal till hell freezes over...

But thats just my take on it...

I can be as optimistic as the next gun owner out there...I’m just going to sit back and see what happens...There’s really nothing else we can do but wait...I really hate to appear to be such a party poop, but I am just ready to not be surprised which ever way it does go...

[Gilbo_3]

Too may mush minds out there, not willing to see or understand how much of a real threat this is to this country...

although thats prolly true, its still up to 9 black robes who are well educated on history. the difficulty of finding enough kevlar to one-finger salute 80m gun owners should keep em 'honest' on this one.

Besides, with the approval ratings of the other two branches, these guys would be overnight heroes and regain some power in the beltway to boot...

LFOD...

[William Tell]

stevie_d_64 said: "See, the question is written in a narrow fashion, yet there are those “expecting” a broad opinion...Thats not going to happen..."

The only way to get the "narrow" decision that you fear is if the Supreme Court simply affirms the DC Court with no comment.

What comment do you think they could make that would amount to a "narrow" decision? It's either an individual right or it isn't. Either strict scrutiny is the proper standard or some other standard applies.

They MIGHT decide that ANY standard would prohibit outlawing all handguns. But what does that say about outlawing all machineguns?

It's a narrow case and a narrow question, but it doesn't really have a narrow answer. That's why there have been so many briefs filed.

[Hat-Trick]

.....it is plain that a lot of people, when it comes down to the wire, are just fearful of allowing citizens today to enjoy and exercise the full liberties they had when the Bill of Rights was ratified.

And given the way that most of these people govern or implement government policy, they have good reason to be fearful. The 2nd is the teeth given to free men to bite the tyrannist. Seriously, just for a few moments imagine the government we'd have with an unarmed citizenry. We wouldn't be citizens, but mere subjects.

[Mr. Mojo]

That came as quite a shock to those of us who believed the administration's professed fealty to gunowners' rights.

Puhlease. Bush made his position on the 2A quite clear way back in the 2000 campaign when he maintained (several times) he'd sign the '94 gun ban renewal if it reached his desk. He's no friend to gun owners, and he never was.

But with his latest move he's showing himself to be downright hostile. ...as much of an enemy as Schumer, Kennedy, Feinstein, and Sarah Brady.

[neverdem]

He's no friend to gun owners, and he never was.

IIRC, GWB became governor of Texas because he promised to sign a concealed carry bill that Ann Richards had already vetoed.

[Amendment10]

I’m curious. Are D.C. judges allowed to carry concealed handguns into courtrooms?