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Bush Administration’s Amicus Brief in D.C. Gun Case
Patterico's Pontifications ^ | Jan. 14, 2008

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.


TOPICS: Constitution/Conservatism; Culture/Society; Government; US: District of Columbia
KEYWORDS: banglist; bush; bushadministration; dc; doj; heller; parker; scotus
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To: jdm
Rights are protections against government. When the government can define the limits of your rights, you don't have any. This is especially the case when the government gets to decide what are "reasonable" restrictions on your rights.
21 posted on 01/14/2008 8:17:59 AM PST by JoeFromSidney (My book is out. Read excerpts at http://www.thejusticecooperative.com)
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To: Old Teufel Hunden

“...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?


22 posted on 01/14/2008 8:28:39 AM PST by FreeInWV
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To: JoeFromSidney
My view is that the government should arrest and convict people who use a gun to commit a crime, and leave the rest of us alone!

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.

23 posted on 01/14/2008 8:31:17 AM PST by basil (Support the Second Amendment--buy another gun today!)
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To: basil
A priori restraint and self incrimination are never good things...
24 posted on 01/14/2008 8:33:41 AM PST by Dead Corpse (What would a free man do?)
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To: JoeFromSidney
Not sure why it is so hard for some folks. even FReepers, to understand something so basic.

Ignorant, stupid, or evil. They've gotta be one of 'em...

25 posted on 01/14/2008 8:34:47 AM PST by Dead Corpse (What would a free man do?)
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To: PubliusMM

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.


26 posted on 01/14/2008 8:35:52 AM PST by smoketree (the insanity, the lunacy these days.)
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To: jdm

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”?


27 posted on 01/14/2008 8:42:56 AM PST by tumblindice (Americas Founding Fathers, all armed conservatives)
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To: JoeFromSidney

“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.


28 posted on 01/14/2008 8:49:18 AM PST by live+let_live
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To: Old Teufel Hunden
That encompases a lot of bad guys I don’t want to see legally allowed to own firearms ...

How about seeing them legally allowed to own cars, knives, gasoline, matches and baseball-bats?

29 posted on 01/14/2008 8:50:54 AM PST by DuncanWaring (The Lord uses the good ones; the bad ones use the Lord.)
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To: PubliusMM

“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.


30 posted on 01/14/2008 8:51:05 AM PST by ScottfromNJ
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To: jdm

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...


31 posted on 01/14/2008 8:51:08 AM PST by Abundy
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To: davisfh

Exactly. Are they putting America on the road to gun restriction?


32 posted on 01/14/2008 8:56:46 AM PST by freekitty ((May the eagles long fly our beautiful and free American sky.))
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To: joe fonebone
when did a nuclear weapon become a firearm?

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".

33 posted on 01/14/2008 8:57:29 AM PST by xjcsa (Thompson/Romney 2008)
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To: xjcsa

sorry.......guess i’l have to go out and buy me one now.....


34 posted on 01/14/2008 9:06:59 AM PST by joe fonebone (When in danger, when in doubt, run in circles, scream and shout)
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To: JoeFromSidney

EXACTLY


35 posted on 01/14/2008 9:08:28 AM PST by Dogbert41
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To: joe fonebone
sorry.......guess i’l have to go out and buy me one now.....

Let me know what kind of a price you find; I'm in the market myself.

36 posted on 01/14/2008 9:09:34 AM PST by xjcsa (Thompson/Romney 2008)
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To: FreeInWV

“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... : )


37 posted on 01/14/2008 9:09:38 AM PST by Old Teufel Hunden
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To: Dogbert41

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!!!


38 posted on 01/14/2008 9:11:10 AM PST by Dogbert41
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To: joe fonebone

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?


39 posted on 01/14/2008 9:14:38 AM PST by smoketree (the insanity, the lunacy these days.)
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To: joe fonebone
Problem is, the Second Amendment states "well-armed militia", not firearms, although I rather doubt you'd have a guy in a tricorner hat back in 1790 with a few cannon in his garage.

Muskets yes, howitzers no.

Today's pro-2nd folks need to understand there is a limit on what the average citizen needs or wants in order to defend themselves not just from the criminal element but, (now we're getting to the touchy part) from a tyrannical government.

Jefferson said a little revolution every now and then was a good thing, but I don't think the MEANS of revolution has to necessarily be violent. First at the ballot, and when that doesn't work, THEN use the bullet.
40 posted on 01/14/2008 9:16:02 AM PST by OCCASparky (Steely-Eyed Killer of the Deep)
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