Posted on 02/18/2008 10:17:17 AM PST by 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...
(Excerpt) Read more at washingtontimes.com ...
"That doesn’t make it right, or Constitutional."
Granted.
Poor choice of words on my part.
I was just trying to say that federal gun control laws are the ones that need to be struck down. Poorly expressed on my part.
bookmark
See above post to Bear_Slayer & SWAMPSNIPER.
“Moreover, under the Supreme Court’s 1939 precedent, U.S. v. Miller, machine guns are not protected by the Second Amendment without showing that they are in common use by civilians.”
The author lost me on this one. How does the fact that machine guns are uncommon due to a virtual ban justify the ban?
I disagree. The States are just as capable as the feds at enacting unconstitutional legislation, and just as deserving at having it struck down. (Although that may have to wait for another case.)
It lost me too. Aren't over 100,000 pre-1986 machineguns out there with the ATF blessing?
Getting rid of the Federal gun control laws is only a start. States like New Jersey, California, New York, etc have no more “just” power to infringe on a civil Right than the Fedgov does. In fact, USC Title 18 sect 241 and 242 make it a crime to attempt to do so.
In fact, the Constitution does mention felons, albeit indirectly - the Constitution provides that a person may not be deprived of life, liberty, or property without due process of law.
"Liberty" encompasses the right to arms.
Just as imprisonment is a punishment for a crime levied upon conviction by a jury persuaded beyond a reasonable doubt of your guilt, so is loss of your right to arms.
Likewise, someone insane would need to be deemed so by due process of law in order to be denied liberties.
If someone suggests that the Second Amendment applies to prisoners, you can tell they're not being intellectually honest about it and are simply grinding an anti-gun axe.
Incorrect. The 14th Amendment bound all the states to abide by the Bill of Rights, also.
No big surprise for Bush. He has betrayed the American people several times, and this is just further proof that he is, in fact, a traitor. He, along with several other traitors in our government have done all that they can to destroy middle class Americans, and they know we're mad! They think they have to take our guns before there is another revolution! They feel like they can control us if we can't defend ourselves.
Agreed... The Constitution mentiones felons (kinda) but the Second Amendment to that Constitution does not. As I understand these things, an amendment takes precedence over the original document, else we wouldn’t have a graduated income tax. While I’m not sure I’d want to go before the SC and argue that newly released convicts should be permitted to buy guns at Wal Mart, there does not appear to be anything in the Constitution to prevent it. Since the Constitution is a list of things the government can and cannot do it has to fall to other, lower authorities to make and enforce those rules. They have done so... with a vengeance.
“mentiones”??? My proof-reader needs new glasses.
It would be absurd to suggest that prison guards would need to get a warrant based on probable cause in order to search a prisoner in their custody. It would be silly to posit that the government could kill someone ("deprived of life") by due process of law, but not disarm someone. The "due process" clause was not repealed by any amendment, and is still the supreme law of the land.
As for felons who've completed their sentence and parole, that's certainly an issue with current law - if someone can't be trusted with a gun, then they shouldn't be released from prison. But that's another case down the road, with a carefully-selected plaintiff who was convicted, for instance, of felony child abuse at the age of 18 for making out with his 17 1/2-year-old high school sweetheart. We can cross that bridge down the road, once we win this case.
You speak Spanish and didn't know it! :D
This just keeps getting better and better...
Its going to go 6-3 against us...The only ones who will go our way (for sure) will be Alito, Scalia and Thomas...
The way (the question) was written is why Roberts won’t go our way, regardless of the intent...
Swing vote??? forgetaboutit...
Like I said last year when this was being formed up, I hope I am sooooo wrong on this, but with all the amicus being filed against our side of the case, it proves our government wants to difuse and take away the ability of us, the people, to resist...
Forget about the polls...This election proves its going to be difficult for conservatives to regain and protect this most basic and individual right...
Too may mush minds out there, not willing to see or understand how much of a real threat this is to this country...
The US Supreme Court has repeatedly talked about the Second Amendment in terms of an individual right over the years. I think you’re definitely going to turn out to be completely wrong about it.
I wouldn’t be surprised to see a 9-0 decision in favor, but I’d be happy with 6-3.
If the Second wasn’t an individual right, the Miller court would have dismissed for want of standing.
Well, I hope you are right...
I have a reason to not be optamistic about this...But I also have a reason to be pessamistic about our chances...
That way I am not going to be surprised later on this year...If it does go our way, expect nothing to happen anyway because D.C. and ALLLLLLL those briefs filed by the opposition will keep this in appeals till the next one comes along...
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?)
2) has any one else noticed how a lot of government agencies are slowly turning on “we the people”? what the hell, man? the DOJ no longer represents me. Nor does POTUS. Dont disappoint me SCOTUS!
3) they really need to get some professionals from Valhalla or Thunder Ranch to come to DC and explain to SCOTUS that, yeah, locked up disassembled rifles and shotguns are fine and dandy for home defense, except if you live in an apartment, or a town house, or have other people in the home in other rooms, or have narrow hallways, or have lots of tight corners, or need the gun available right away, or basically any other home defense scenario. Buck shot is... ok... as long as you hit your target, but drywall wont stop rifle rounds. Even fat bad guys wont stop some rifle rounds. I own an AK that can quickly be retrieved and loaded with 7.62x39 fmj but my first choice for home defense is going to be 45acp jhp. So much easier to wield a hand gun in the confines of a small house or apartment than it is a rifle, and there is less concern for over-penetration with a handgun round. Also a hand gun can be held with one hand while you hold your flashlight or telephone (to call 911) with the other.
This is just the latest in a long line of battles for the Second Amendment, and there will be plenty more battles after this one. The war is a long, long way from over, and 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.
The DOJ is engaging in "Dred Scott" reasoning, which goes: "if black people were citizens, then we wouldn't be able to legally oppress them, so they can't possibly be citizens." I expect that the Supreme Court will see right through that, considering that the Civil War was the fallout of that particular decision.
If they don't see through it, well, the justices will deserve the reaction they get.
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