Posted on 01/12/2008 2:05:02 AM PST by Tahts-a-dats-ago
Ah yes, the Second Amendment's "shall not be infringed" was put there to provide "a more flexible standard".
/S
I wonder if the government will see the laws on paying income taxes as equally "flexible"?
1. The heightened judicial scrutiny described above is materially different from the more categorical approaches taken by the district court and the court of appeals.The district court dismissed respondent’s complaint based on the erroneous view that the Second Amendment does not secure any individual right “separate and apart from service in the Militia,” Pet. App. 83a, and thus did not engage in intermediate scrutiny or indeed in any consideration (or fact-finding) on the constitutionality of the D.C. laws. The court of appeals appears to have erred in the opposite direction. Based on its determination that “handguns are ‘Arms’ referred to in the Second Amendment,” the court of appeals appears to have ruled categorically that “it is not open to the District to ban them.” Ibid.; see pp. 21-22, supra.
Well, yes, handguns are clearly arms under the Second Amendment --- it is risible to consider them anything other than a firearm --- and this argument that they are somehow not is Clintonian in my opinion. The Second Amendment says the right to keep and bear arms shall not be infringed, and that's what it means, just as the court of appeals correctly held.
It certainly doesn't mean that some court gets to "judicially review" each law in light of whatever happens to suit the justices on that court. The Founders would be aghast to see that bizarre interpretation attached to the clear meaning of the Second Amendment.
On pages 29 and 30, there appears this equally misguided line of thought:
If the Court takes the foundational steps discussed above, there would be virtue in remanding the case for application of a proper standard of review and permitting Second Amendment doctrine to develop in an incremental and prudent fashion as is necessary to decide particular cases that may arise. Allowing lower courts to develop doctrines to address issues concerning the scope of the Second Amendment, its application to a variety of circumstances, and the relevance of particular historical materials has much to recommend it. When lower courts differ as to the proper resolution of concrete and particularized disputes, the Court can grant plenary review and develop the law incrementally, as it does in other contexts. On the other hand, broad-based pronouncements in the context of adjudicating the details of a law that is far from typical could unduly skew the future course of Second Amendment adjudication.
The brief then goes into the DOJ's preferred method for handling each gun law in the U.S.:
3. Applying the heightened judicial scrutiny described above to the specific claims raised by respondent might warrant consideration of additional legal or factual issues that the court of appeals did not need to reach under its analysis. In contending that the challenged D.C. laws unconstitutionally prevent him from possessing functional firearms for personal self-defense in the home, respondent has focused throughout this litigation on the combined effect of the handgun ban and the trigger-lock provision. See J.A. 54a (complaint) (alleging that the challenged D.C.-law provisions violate respondent’s Second Amendment “right to possess a functional, personal firearm, such as a handgun or ordinary long gun (shotgun or rifle) within the home”) (emphasis added); J.A. 57a-58a; Br. in Opp. 2, 18-23 (emphasizing that respondent’s challenge is to combined effect of D.C. laws on handguns and long guns). The determination whether those laws deprive respondent of a functional firearm depends substantially on whether D.C.’s trigger-lock provision, D.C. Code § 7-2507.02, can properly be interpreted (as petitioners contend, see Br. 56) in a manner that allows respondent to possess a functional long gun in his home.8 And if the trigger-lock provision can be construed in such a manner, the courts below would be required to address the factual issue—not fully explored during the prior course of the litigation—whether the firearms that are lawfully available to respondent are significantly less suited to the identified lawful purpose (self-defense in the home) than the type of firearm (i.e., a handgun) that D.C. law bars respondent from possessing.9To the extent necessary, further consideration of those questions should occur in the lower courts, which would be in the best position to determine, in light of this Court’s exposition of the proper standard of review, whether any fact-finding is necessary, and to place any appropriate limits on any evidentiary proceedings. Moreover, even if the existing record proved to be adequate, initial examination of those issues is typically better reserved for the lower courts. Cf., e.g., Merck KGaA v. Integra Lifescis. I, Ltd ., 545 U.S. 193, 208 (2005).10
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.
This is just gun-grabbing by consent of the judiciary, as far as I can see, and I hope that the Supreme Court takes an equally dim view of this. It certainly is not in the spirit of, nor the caliber of, the much better work by Judge Silberman.
The Second Amendment needs no standards of judicial scrutiny of each infringing law to see if it infringes too much by the lights of each court that might exist --- I believe that would simply lead to the Ninth Circus banning all firearms except for some token small-caliber rimfires. Instead, it should be read as plainly as it is written: the right to keep and bear firearms shall not be infringed.
We're not simply talking about "departments" here, we're talking about people. There is someone who is the head of the Justice department. He is the Attorney General.
How did he get his job? And, who is his boss?
Yes, it is Bush's fault.
I was being sarcastic. My remarks about vetoing an amnesty bill and appointing deviants as ambassadors were the tipoff.
“Yes, it is Bush’s fault.”
It’s Bush’s fault for not identifying and firing every Klintonoid in government, for cause and with prejudice.
I wonder who sold him that “new tone” BS anyway. Probably a liberal mole.
“This is the kind of government the 2nd was intended to protect us against”
Beelzebubba and the Hildebeeste succeeded in installing an almost monolithically Klintonoid bureaucracy in all departments, and Bush did nothing but fertilize it and let it grow.
“NO MORE RINOS, NOT NOW NOT EVER!!”
Yeah. I’m sick of the pubbies claiming my vote because “Our scumbag isn’t as bad as theirs.”
Time to relegate them to the ash-heap of history, and come up with an appropriate opposition to the demonrats.
Horse puckey. "Shall not be infringed" is about as strict a standard as one can get.
Remind me again why we should be voting for a less than strongly Conservative Republican cannidate come fall, let alone in the primaries.
It is very good news.
The bit "Justice Thomas is a certain vote for our side..." in your linked article certainly makes me glad that Justice Clarence Thomas sits on our highest court.
STEPHEN R. RUBENSTEIN
Chief Counsel
Bureau of Alcohol, Tobacco, Firearms and Explosives
Department of Justice
Washington, D.C. 20226-0001
Bastids never met a gun law they didn't like. And they really don't give a shiite about Constitutionality. Only government thugs should have guns, as far as they are concerned.
All guns are "particularly susceptible to criminal misuse". After all they banned machine guns, and AFAIK, no one ever took down a convenience store, or even attacked a rival gang with a Ma Duece.
They aren't exactly concealable. They are the very sort of arms the keeping and bearings of which is protected by the second amendment, according the Supreme Court in Miller. So naturally the BATFE is particular zealous in enforcing the laws banning and/or controlling them.
Of course I'm not good with a knife, but I'm pretty fair with my scoped 7.62 NATO black rifle.
Implying that if Congress passed a law, it must have met Constitutional standards, even if it hasn't been tested by the Courts and no matter that the whole field was explicitly off limits by "shall not be infringed"
I guess that means we can play "whack a moonbat" the next time ANSWER spews forth its traitorous bile?
I think I would now have to change that to read, "we ONCE HAD a written Constitution for one good reason, namely so that the courts cannot bend the rules to suit the government......"
The courts today routinely change and ignore the Constitution as though it was nothing more than old dry ink on yellowed parchment that says nice things but means nothing in particular, and yet empowers the courts to make up the laws of the land to suit their own ideas about what the law should be.
The authors couldn't foresee the kind of unabashedly liberal judges and Justices who would come into power in the 20th and 21st centuries and turn their masterpiece into a "living document" that is practically meaningless since it is now usually interpreted to meet the perceived need of the moment without any regard whatsoever for it's original intent.
Nazi Germany and the USSR also had constitutions that gave lip service to inherent human rights, but they were nothing more than impotent ink on paper. No amount of ink on paper can effectively constrain a despotic government which is determined to impose it's oppressive will on the people who it governs. Only liberty-loving patriots equipped with appropriate arms and a willingness to shed their own blood in order to guarantee liberty and justice for their progeny can do that.
Puh-leeze! I was quoting the article!! I do not support what they are saying.
I have a really, really bad feeling I’m going to be looking for a new party in November 2008.
In the coming months, the U.S. Supreme Court will consider the constitutionality of Washington, D.C.'s ban on handgun ownership and self-defense in law-abiding residents' homes. The Court will first address the question of whether the Second Amendment to the U.S. Constitution, as embodied in the Bill of Rights, protects the rights of individuals or a right of the government. If the Court agrees that this is an individual right, they will then determine if D.C.'s self-defense and handgun bans are constitutional.The position of the National Rifle Association is clear.
The Second Amendment protects the fundamental, individual right of law-abiding citizens to own firearms for any lawful purpose. Further, any law infringing this freedom, including a ban on self-defense and handgun ownership, is unconstitutional and provides no benefit to curbing crime. Rather, these types of restrictions only leave the law-abiding more susceptible to criminal attack.
The U.S. Government, through its Solicitor General, has filed an amicus brief in this case. We applaud the government's recognition that the Second Amendment protects a fundamental, individual right that is "central to the preservation of liberty." The brief also correctly recognizes that the D.C. statutes ban "a commonly-used and commonly-possessed firearm in a way that has no grounding in Framing-era practice," the Second Amendment applies to the District of Columbia, is not restricted to service in a militia and secures the natural right of self-defense. However, the government's position is also that a "heightened" level of judicial scrutiny should be applied to these questions. The National Rifle Association believes that the Court should use the highest level of scrutiny in reviewing the D.C. gun ban. We further believe a complete ban on handgun ownership and self-defense in one's own home does not pass ANY level of judicial scrutiny. Even the government agrees that "the greater the scope of the prohibition and its impact on private firearm possession, the more difficult it will be to defend under the Second Amendment."
A complete ban is the kind of infringement that is the greatest in scope. The U.S. Court of Appeals for the D.C. Circuit correctly ruled that D.C.'s statutes are unconstitutional. We strongly believe the ruling should be upheld by the U.S. Supreme Court.
The National Rifle Association will be filing an amicus brief in this case and will provide additional information to our members as this case moves through the legal process.
(The link is http://armsandthelaw.com/archives/2008/01/nra_statement_o.php .)
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