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Bush Administrationís 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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1 posted on 01/14/2008 7:32:43 AM PST by jdm
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To: jdm
"The Administration agrees that gun ownership is an individual right, but says it is subject to reasonable restrictions."

Define reasonable.

2 posted on 01/14/2008 7:35:10 AM PST by davisfh
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To: jdm

when did a nuclear weapon become a firearm?


3 posted on 01/14/2008 7:37:11 AM PST by joe fonebone (When in danger, when in doubt, run in circles, scream and shout)
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To: jdm
We shall see. When you lie down with dogs like the DA’s from Washington DC, Chicago, New York, San Fran. I question where this limitation starts and ends but it’s bound to produce fleas.
4 posted on 01/14/2008 7:40:47 AM PST by Recon Dad (Marine Spec Ops Dad)
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To: joe fonebone

I think that was a bit of a hyperbole on the author’s part.


5 posted on 01/14/2008 7:41:03 AM PST by jdm (A Hunter Thompson ticket would be suicide.)
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To: jdm

The “big lie” in the brief is machine guns in private hands present an unreasonable danger (if the 1986 ban were overturned.) In the decades before the ban, registered machine guns in private hands were responsible for ZERO homicides.

Registered machine gun owners are the least threat to public safety of any demographic, contrary to the Bush DOJ brief.


6 posted on 01/14/2008 7:42:14 AM PST by Atlas Sneezed ("We do have tough gun laws in Massachusetts; I support them, I won't chip away at them" -Mitt Romney)
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To: jdm

Perfect example of why you don’t compromise to get “electable.”


7 posted on 01/14/2008 7:42:30 AM PST by mysterio
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To: jdm

We may like one politician more than another, but at the end of the day the state is always the state, and we cannot expect it to be otherwise.


8 posted on 01/14/2008 7:42:59 AM PST by gridlock (300 Million Americans will not be elected President in 2008. Hillary Clinton will be one of them.)
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To: davisfh
the Second Amendment, properly construed

1. Felons and convicts are a subset of "the People" and are restricted by many laws that safeguard the citizenry.

2. What is properly construed by "shall not be infringed?"

9 posted on 01/14/2008 7:47:44 AM PST by Thommas (The snout of the camel is in the tent..)
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To: jdm

“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”

Which has nothing to do with the 2nd amendment per say. It’s the 5th amendment that would deny felons firearms after due process.


10 posted on 01/14/2008 7:53:31 AM PST by ScottfromNJ
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To: Beelzebubba
In the decades before the ban, registered machine guns in private hands were responsible for ZERO homicides

Please. no facts. We're dealing with feeeeeeelings here.

11 posted on 01/14/2008 7:54:59 AM PST by Puppage (You may disagree with what I have to say, but I shall defend to your death my right to say it)
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To: jdm

“To the contrary, the Second Amendment, properly construed, allows for reasonable regulation of firearms”

Here is where the Bush administration’s argument falls down. Let’s define reasonable. Does reasonable restrictions mean that one cannot own a handgun in DC and if one owns a rifle in DC it must be broken down and rendered unusable. I would think that in any normal persons thinking, this is very unreasonable to completely ban a set of firearms and render another set of firearms unusable.

Reasonable restrictions are not allowing convicted felons or people who are deemed physcho or minors to be able to own firearms. Unreasonable restrictions is to ban working firearms from everyone in the city!!


12 posted on 01/14/2008 7:58:33 AM PST by Old Teufel Hunden
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To: Old Teufel Hunden

Another unreasonable restriction is to ban a whole category of arms, like modern machine guns, and so-called assault weapons.


13 posted on 01/14/2008 8:01:23 AM PST by Atlas Sneezed ("We do have tough gun laws in Massachusetts; I support them, I won't chip away at them" -Mitt Romney)
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To: jdm

If we consider a person to have served his time (paid his debt to society) then he should get ALL of his rights back or he is not fit for society and should not be released.


14 posted on 01/14/2008 8:01:54 AM PST by Hazcat (We won an immigration BATTLE, the WAR is not over. Be ever vigilant.)
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To: mysterio

“Perfect example of why you don’t compromise to get “electable.””

Normally I would agree with you. 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. If Gore or Kerry would have been elected, is there any doubt that two libs would be on POTUS now to replace O’Connor and Renquist with one of them being the Supreme Court Justice?

John Jay would be turning over in his grave right now, if he’s not already...


15 posted on 01/14/2008 8:03:15 AM PST by Old Teufel Hunden
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To: Hazcat

“If we consider a person to have served his time (paid his debt to society) then he should get ALL of his rights back or he is not fit for society and should not be released.”

Perhaps there should be some type of review board to review cases if someone wants his rights back. However, I would not arbitrarily give all convicted felons their rights back. That encompases a lot of bad guys I don’t want to see legally allowed to own firearms or vote for that matter.


16 posted on 01/14/2008 8:05:44 AM PST by Old Teufel Hunden
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To: jdm
I only agree that felons, those that can actually be proven to be mentally unstable, NON-US citizens, should not have guns. Other than that, THE GOVERNMENT DOES NOT HAVE ANY RIGHTS WHAT SO EVER to deny us our God given right and the Rights given to us by the Founders in the Bill of Rights under the 2d Amendment. We have a RIGHT to possess, carry and USE a gun. I am sick of socialist, liberals, communists, dimocrats, envirowacksos, and BUSH telling us we don’t.
17 posted on 01/14/2008 8:09:36 AM PST by RetiredArmy (Better prepare, come Nov 08, we have a Marxist Commissar President and Marxist Congress.)
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To: Old Teufel Hunden

The long and the short of it is whether we will continue to tolerate a too intrusive government, from any level, in our daily lives.

The answer, I fear, is yes. And we will rue the day.

There is no ambiguity in the Second Amendment. It is plain, succinct, and logical. Restrictions on felons and mentally incompetent persons, may be within the constraints of reasonable, but there is no provision for ‘reasonsble’ constraints in the text. Does that open a can of worms for many folks? Probably.
The argument often used is that common sense restrictions on the Second Amendment are not unlike the “yelling fire in a crowded theater” argument applied to the First Amendment. I’m not sure I fully agree with that notion, at this point, but I’m open to further discussion.
However, the restriction on machine guns is, IMO, unconstitutional, despite being upheld over the years since it’s creation in the late 1930’s.
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.


18 posted on 01/14/2008 8:10:08 AM PST by PubliusMM (RKBA; a matter of fact, not opinion...)
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To: jdm
I could possibly go along with that until I hit this:

"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."

I must call BS on that.

jw

19 posted on 01/14/2008 8:16:03 AM PST by JWinNC (www.anailinhisplace.net)
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To: Old Teufel Hunden
Perhaps there should be some type of review board to review cases if someone wants his rights back. However, I would not arbitrarily give all convicted felons their rights back. That encompases a lot of bad guys I don’t want to see legally allowed to own firearms or vote for that matter.

Not trying to be a jerk but I do belive that we removed any possibility of having "partial citizens" from the constitution.

Maybe a law that says after completion of your sentence and "X" years (say 5) without arrest you get all rights retored automatically.

20 posted on 01/14/2008 8:17:31 AM PST by Hazcat (We won an immigration BATTLE, the WAR is not over. Be ever vigilant.)
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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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To: DuncanWaring

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

The Fifth amendment says that no one shall be deprived of life, liberty or property without due process of law. This means by implication that these things (life, liberty and property) can be taken away by due process of law. That’s why the death penalty is constitutional and why paying fines and jail time are constitutional. It is also why you can be denied other liberties (such as owning a gun or voting) by due process of law.

It is completely constitutional to say that a person will be deprived of certain liberties that other people enjoy because they have been convicted of a crime in a court of law.

I’m willing to say that it’s okay to take these liberties away from felons and certain liberties given back only by a review board. Owning a gun should be one of them.

When we as 2A supporters do not sound reasonable (like supporting a convicted murderer getting his gun rights back upon leaving jail) how can we make sound arguments (such as owning fully auto weapons or allowing concealed carry) to the public?


41 posted on 01/14/2008 9:20:45 AM PST by Old Teufel Hunden
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To: OCCASparky

Muskets yes. Cannon yes. Those that could afford cannon had cannon. Some even had fully armed warships and were granted letters of marque and reprisal.
The amendment states “well regulated militia”, “not well armed militia”.
Back then well regulated meant well functioning. They did not want citizens showing up for militia duty with unworkable arms.
And it is not a bill of needs or wants it is a bill of RIGHTS.


42 posted on 01/14/2008 9:21:38 AM PST by smoketree (the insanity, the lunacy these days.)
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To: smoketree

just being sarcastic in response to the sheer stupidity of the author of the article..... :)


43 posted on 01/14/2008 9:22:18 AM PST by joe fonebone (When in danger, when in doubt, run in circles, scream and shout)
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To: OCCASparky

like i have always said, in any situation there are 3 types of action to action to take, positive, legal and lever...first is positive action, talk to the people and try to work it out...if that fails, then there is legal action...get a cop, attorney, judge or work at the ballot box to get it handled...if that fails, then there is lever action on the old 30.30.......


44 posted on 01/14/2008 9:25:17 AM PST by joe fonebone (When in danger, when in doubt, run in circles, scream and shout)
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To: OCCASparky

You’re just wrong on this. Most of the artillery used by the Continental Army during the Revolution was loaned to it by private owners and was returned to them after the cessation of hostilities. And the term is “well-regulated militia.” “Militia” was defined by Jefferson as all free-born males in the population between the ages of 15 and 60 (as I recall). “Well-regulated” was a generally understood term that meant knowledgeable and skilled in the use of whatever was appropriate to the “well-regulatedness.” In this case, it would mean knowing how to use firearms properly and being able to hit what you fire at.


45 posted on 01/14/2008 9:27:36 AM PST by Doug Loss
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To: Old Teufel Hunden

My real question is “If we can’t trust them with guns, how can we trust them with knives, etc?”

If we can’t trust them with guns, they probably should still be in the Graybar Hotel.


46 posted on 01/14/2008 9:34:46 AM PST by DuncanWaring (The Lord uses the good ones; the bad ones use the Lord.)
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To: DuncanWaring

“My real question is “If we can’t trust them with guns, how can we trust them with knives, etc?”

If we can’t trust them with guns, they probably should still be in the Graybar Hotel.”

I’m not sure if this was supposed to be posted to me. I did not write the above post about trusing them with guns how can we trust them with knives, etc


47 posted on 01/14/2008 9:45:16 AM PST by Old Teufel Hunden
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To: Old Teufel Hunden

I wrote it in response to your post 41, discussing the process by which rights are legitimately abridged.

My intent was to remark on the anomaly that we don’t “trust” released felons with guns, but we do “trust” them with knives.


48 posted on 01/14/2008 9:57:29 AM PST by DuncanWaring (The Lord uses the good ones; the bad ones use the Lord.)
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To: jdm

The DC Gun Ban

March 12, 2007

Last Friday a federal appeals court in Washington DC issued a ruling that hopefully will result in the restoration of 2nd Amendment rights in the nation’s capital. It appears the Court rejected the District of Columbia ‘s nonsensical argument that the 2nd Amendment confers only a “collective right,” something gun control advocates have asserted for years.

Of course we should not have too much faith in our federal courts to protect gun rights, considering they routinely rubber stamp egregious violations of the 1 st, 4th, and 5th Amendments, and allow Congress to legislate wildly outside the bounds of its enumerated powers. Furthermore, the DC case will be appealed to the Supreme Court with no guarantees. But it is very important nonetheless for a federal court only one step below the highest court in the land to recognize that gun rights adhere to the American people, not to government-sanctioned groups. Rights, by definition, are individual. “Group rights” is an oxymoron.

Can anyone seriously contend that the Founders, who had just expelled their British rulers mostly by use of light arms, did not want the individual farmer, blacksmith, or merchant to be armed? Those individuals would have been killed or imprisoned by the King’s soldiers if they had relied on a federal armed force to protect them.

In the 1700s, militias were local groups made up of ordinary citizens. They were not under federal control! As a practical matter, many of them were barely under the control of colonial or state authorities. When the 2nd Amendment speaks of a “well-regulated militia,” it means local groups of individuals operating to protect their own families, homes, and communities. They regulated themselves because it was necessary and in their own interest to do so.

The Founders themselves wrote in the Federalist papers about the need for individuals to be armed. In fact, James Madison argued in Federalist paper 46 that common citizens should be armed to guard against the threat posed by the newly proposed standing federal army.

Today, gun control makes people demonstrably less safe— as any honest examination of criminal statistics reveals. In his book “More Guns, Less Crime,” scholar John Lott demolishes the myth that gun control reduces crime. On the contrary, Lott shows that cities with strict gun control—like Washington DC—experience higher rates of murder and violent crime. It is no coincidence that violent crime flourishes in the nation’s capital, where the individual’s right to defend himself has been most severely curtailed.

Understand that residents of DC can be convicted of a felony and put in prison simply for having a gun in their home, even if they live in a very dangerous neighborhood. The DC gun ban is no joke, and the legal challenges to the ban are not simply academic exercises. People’s lives and safety are at stake.

Gun control historically serves as a gateway to tyranny. Tyrants from Hitler to Mao to Stalin have sought to disarm their own citizens, for the simple reason that unarmed people are easier to control. Our Founders, having just expelled the British army, knew that the right to bear arms serves as the guardian of every other right. This is the principle so often ignored by both sides in the gun control debate. Only armed citizens can resist tyrannical government.

Congressman Ron Paul


49 posted on 01/14/2008 10:03:39 AM PST by KDD (A nod is as good as a wink to a blind horse)
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To: DuncanWaring

“My intent was to remark on the anomaly that we don’t “trust” released felons with guns, but we do “trust” them with knives.”

Gotcha, I guess it is strange but then where would it end. Baseball bats? Box cutters? Almost anything could be fashioned into a weapon. I feel that private ownership of a firearm is a civil right enumerated by the 2A. I believe that the 5th and 14th gives the government the power to take away those enumerated rights from people convicted of crimes. That is why I personally believe that after being convicted of a serious crime you should not be guaranteed to get all of your rights back.

The government has the authority to protect all of our civil rights. When someone has been convicted of a serious felony such as murder they forfiet some of their civil rights and it is the government’s duty to try to protect our civil liberties (such as life) from these people as much as possible.


50 posted on 01/14/2008 10:08:13 AM PST by Old Teufel Hunden
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