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“...the text and history of the Second Amendment point to a more flexible standard of review...”
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Career lawyers at Justice have to cavil over verbage to protect machine gun bans and other military-grade type weapons.
Wouldn’t want any of those Islamo-Fascists getting a hold of serious hardware, now would we! /sarc
The good news is it does acknowledge that the Second Amendment is an individual right; the bad news is that it appears to go wholesale against the plain language of "shall not be infringed."
Let me guess ...
half of the population is under the influence of drugs, and the other half is under the influence of crooked and deviate politicians?
Lock & load
"WHY VOTE REPUBLICAN? Bush DOJ betrays gun rights. "There was a saying during my years in DC that the GOP operated on two principles: screw your friends and appease your enemies. Yup." Is this too harsh? Possibly, but Dave Hardy would know, wouldn't he?"
You are an idiot, you are banned from ever speaking in DC.
"It depends on what the meaning if "is" is."
Looks like I need to buy more powder and primers. Looks like I’m gonna need them come March...
Ours is changing from a government “of the people, by the people, for the people” to “for controlling the pesky little people”. The transition is nearly complete. I hope the Supreme Court chooses wisely.
This is the first time in almost a century where the 2nd Amendment goes to the Supreme Court for a fundamental challenge and we are lucky enough to have a Republican Administration. So how does that administration respond? They support the gun grabbers! Part B of the summary almost looks like something the Clinton Administration would have written! This is something I didn’t expect.
I would think that they would need to apply super-strict scrutiny, not just strict scrutiny, as it’s dealing with a situation involving prior restraint on a fundamental constitutional right.
But then, arguments in favor of the DC ban tend to be legally and logically ridiculous anyway.
“governments interest”????
I'll keep saying this until next November if I live that long, NO MORE RINOS, NOT NOW NOT EVER!!. And if RINORudy the NYC gungrabber is nominated he won't get my vote no matter how cleverly he uses weasel-words on the issue now that he needs more than NYC liberals to vote for him. I won't vote for a gungrabber again whether or not he or she is a little better than the opposition on other issues.
predictable.
it is beltway disease.
The government is about controlling public behavior en masse. It is against individual rights as sure as a leopard has spots.
The could could easily give the strict scrutiny standard and allow it to stand.
The fact the Justice Dept is going to the “change the standard approach” suggests the only avenue to attack the lower court is to change the standard since they appear to be giving in on the facts and the ruling under the higher standard.
It is a weak argument.
(of course it could be a bad argument on purpose to satisfy the beltway insiders. a toss away for cya)
The Bush administration has quietly been one of the most anti-gun ever. They don’t make a big deal of it and publicly sound pro gun while all the time pushing the knife in our back.
The DOJ never ceases to amaze. They also went to court against the Salvation Army because the SA wanted their employees to speak English.
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.