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Solicitor General Olson urged the Supreme Court to turn down both appeals. He said that even accepting an individual right to bear arms, the application of the laws at issue in both cases reflected the kind of narrowly tailored restrictions by which that right could reasonably be limited. Consequently, there was no warrant for the court to take either case, the briefs said.

With all due respect to Mr. Olson, he is dead wrong on the issue and this "policy shift" is merely an attempt to deflect criticism from their position that the SCOTUS should not hear the Emerson appeal.

Having read both opinions and the brief filed to SCOTUS, the larger issue is the standard of review employed by the 5th Circuit. They went out of their way to demonstrate why the Second Amendment is a fundamental individual right - and then analyzed the offending statute using a rational basis standard. That is the wrong standard of review for a fundamental individual right. The correct standard is strict scrutiny - and 90% of the current laws will not pass that type of review.

Further, the statute makes it a crime to posess or transfer a firearm once you are subject to a protective order - the only way not to violate the statute is to divest yourself of all firearms prior to the order being issued. That means you can be summarily deprived of an individual right and subject to incarceration without due process because if you don't divest prior to a hearing and the order is issued you cannot take any action without committing a crime. (Unless you are willing to not return to your domocile until after the order expires)

Mr. Olsen is dead wrong - the appeal should be heard and the government's position on the law (unless they admit it is unconstitutional) is dead wrong

The thing is, it might be better for the Supreme Court to NOT hear a 2A case right now. With only a 5-4 marginal majority (and two moderates in Kennedy and O'Connor on the bench), it is very possible that the 4 liberals joined by one of the two moderates could vote to find no individual right to bear arms in the constitution. I don't want to risk that, and the Administration doesn't either. Until there are more conservatives on the court, I don't want a SC precedent set DENYING an individual's right to bear arms.

the statute makes it a crime to posess or transfer a firearm once you are subject to a protective order

I have a problem with folks being penalized by the government in this way and others without having been found guilty or liable in a legitimate court of law.

A restraining order is a nearly automatic formality in domestic dispute cases in many localities, whether or not they involve violence, so they are not, in my opinion, due process.

Other things that stick in pretty much the same place in my craw are things like garnishments and seizures for tax collection purposes. Any other debtor must sue you and win in court by proving it's case before doing those things, and I think it's entirely fair for the same to be demanded of the government. The government once stole the contents of a bank account of mine in this way, based on a debt supposedly owed by a family member. I got it back, but the problem was that the burden was on me to prove the government was not entitled to it, and that is just wrong.

In the case of restraining orders filed as a part of divorce and other domestic dispute proceedings, it is my understanding that they are issued based on evidence provided only by the party requesting the order, with the potential restrainee most often not present or even served with notice of a "hearing". Such a proceeding ought not deprive one of property or civil liberties, because there is no trial (due process).

Dave in Eugene

"Having read both opinions and the brief filed to SCOTUS, the larger issue is the standard of review employed by the 5th Circuit. They went out of their way to demonstrate why the Second Amendment is a fundamental individual right - and then analyzed the offending statute using a rational basis standard. That is the wrong standard of review for a fundamental individual right. The correct standard is strict scrutiny - and 90% of the current laws will not pass that type of review."

Sometimes the guys in the black mumu's glissade like Fred Astaire. It seems that the judges in question made lots of encouraging noises during oral argument and then eased gun in close. Dictum is dictum and holdings are holdings. Most striking is the bobbing and weaving of the administration when the 2nd Amendment is on the table. After all, even the Goron's post game analysts agree that he lost WVA and Tenn due to his contempt for those God given rights protected under the 2nd Amendment. Sad to say, Dubya is starting to look more and more like a man of few principles.