Bad Brief - The Bush DOJ shoots at the Second Amendment.

National Review Online ^ | January 14, 2008 | John R. Lott Jr.

[neverdem]

January 14, 2008, 0:56 a.m.

Bad Brief
The Bush DOJ shoots at the Second Amedment.

By John R. Lott Jr.

A lot of Americans who believe in the right to own guns were very disappointed this weekend. On Friday, the Bush administration’s Justice Department entered into the fray over the District of Columbia’s 1976 handgun ban by filing a brief to the Supreme Court that effectively supports the ban. The administration pays lip service to the notion that the Second Amendment protects gun ownership as an “individual right,” but their brief leaves the term essentially meaningless.

Quotes by the two sides’ lawyers say it all. The District’s acting attorney general, Peter Nickles, happily noted that the Justice Department’s brief was a “somewhat surprising and very favorable development.” Alan Gura, the attorney who will be representing those challenging the ban before the Supreme Court, accused the Bush administration of “basically siding with the District of Columbia” and said that “This is definitely hostile to our position.” As the lead to an article in the Los Angeles Times said Sunday, “gun-control advocates never expected to get a boost from the Bush administration.”

As probably the most prominent Second Amendment law professor in the country privately confided in me, “If the Supreme Court accepts the solicitor general’s interpretation, the chances of getting the D.C. gun ban struck down are bleak.”

The Department of Justice argument can be boiled down pretty easily. Its lawyers claim that since the government bans machine guns, it should also be able to ban handguns. After all, they reason, people can still own rifles and shotguns for protection, even if they have to be stored locked up. The Justice Department even seems to accept that trigger locks are not really that much of a burden, and that the locks “can properly be interpreted” as not interfering with using guns for self-protection. Yet, even if gun locks do interfere with self-defense, DOJ believes the regulations should be allowed, as long as the District of Columbia government thinks it has a good reason.

Factually, there are many mistakes in the DOJ’s reasoning: As soon as a rifle or shotgun is unlocked, it becomes illegal in D.C., and there has never been a federal ban on machine guns. But these are relatively minor points. Nor does it really matter that the only academic research on the impact of trigger locks on crime finds that states that require guns be locked up and unloaded face a five-percent increase in murder and a 12 percent increase in rape. Criminals are more likely to attack people in their homes, and those attacks are more likely to be successful. Since the potential of armed victims deters criminals, storing a gun locked and unloaded actually encourages crime.

The biggest problem is the standard used for evaluating the constitutionality of regulations. The DOJ is asking that a different, much weaker standard be used for the Second Amendment than the courts demands for other “individual rights” such as speech, unreasonable searches and seizures, imprisonment without trial, and drawing and quartering people.

If one accepts the notion that gun ownership is an individual right, what does “the right of the people to keep and bear Arms, shall not be infringed” mean? What would the drafters of the Bill of Rights have had to write if they really meant the right “shall not be infringed”? Does the phrase “the right of the people” provide a different level of protection in the Second Amendment than in the First and Fourth?

But the total elimination of gun control is not under consideration by the Supreme Court. The question is what constitutes “reasonable” regulation. The DOJ brief argues that if the DC government says gun control is important for public safety, it should be allowed by the courts. What the appeals court argued is that gun regulations not only need to be reasonable, they need to withstand “strict scrutiny” — a test that ensures the regulations are narrowly tailored to achieve the desired goal.

Perhaps the Justice Department’s position isn’t too surprising. Like any other government agency, it has a hard time giving up its authority. The Justice Department’s bias can been seen in that it finds it necessary to raise the specter of machine guns 10 times when evaluating a law that bans handguns. Nor does the brief even acknowledge that after the ban, D.C.’s murder rate only once fell below what it was in 1976.

Worried about the possibility that a Supreme Court decision supporting the Second Amendment as an individual right could “cast doubt on the constitutionality of existing federal legislation,” the Department of Justice felt it necessary to head off any restrictions on government power right at the beginning.

But all is not lost. The Supreme Court can of course ignore the Bush administration’s advice, but the brief does carry significant weight. President Bush has the power to fix this by ordering that the solicitor general brief be withdrawn or significantly amended. Unfortunately, it may take an uprising by voters to rein in the Justice Department.

— John Lott is the author of “Freedomnomics, upon which part of this article is based, and a senior research scientist at the University of Maryland.

[editor-surveyor]

"Burn up those phone lines, folks."

Yep, we'll burn up those lines. There are 19 big replies to this thread. Wow!

[Ramius]

Do you really think the Supreme Court is swayed by complaining phonecalls?

[Logical me]

Lets tell it like it is. If guns are banned, it will be the beginning of a total police state. We are gradually slipping into this. Is this what we want? It won't be long and some real kick a@@ has to start.

[Blood of Tyrants]

Basically, the DOJ argues that the federal government can do ANYTHING it wants with regards to gun and the 2nd Amendment offers absolutely no protection to the individual at all. IF the SC ruled in favor of the government, I think that it would be time to ask Claire Wolf if the awkward stage has passed.

[Ken H]

Do you really think the Supreme Court is swayed by complaining phonecalls?

Where are you geting that the poster was recommending such a thing? The number was for the WH switchboard, dummy!

[Ramius]

Duh... which makes it even that much more pointless, doesn’t it, dummy?

[Ken H]

Duh... which makes it even that much more pointless, doesn't it, dummy?

Why would it be more pointless for the public to try to influence the WH vs trying to influence SCOTUS?

[SkyDancer]

I want to pick up a rifle before all this goes down ... I want a Ruger Mini-14 in .223 .... then I’ll be satisfied ... let them take that away from me ....

[SkyDancer]

yeppers .... right on!

[Inyo-Mono]

BTTT!

[Nachoman]

Bush is doing everything he can to make me regret voting for him.

[Renegade]

Better buy more than 1 rifle and some handguns too with LOTS of ammo while you can .

[robertpaulsen]

OK. Show of hands.

Let's see all those who supported this second amendment showdown in the U.S. Supreme Court. Raise your hand if you still think this was a good idea.

Tell me again how there's everything to gain and nothing to lose -- that having five justices on the U.S. Supreme Court define the second amendment is a good thing.

Don't hide. Don't slink away now. Stand up for what you believe in. Be counted.

[robertpaulsen]

"The Supreme Court can of course ignore the Bush administration’s advice ..."

BWAHAHAHAHA!

Yes, John R. Lott Jr., they can. But if the brief had been favorable, you would have written, "The Supreme Court can hardly ignore the Bush administration’s advice ..."

[SW6906]

Ping to a good summary of what our President is doing to us.........

[neverdem]

I'm less optimistic about Heller after reading Lott's analysis, but I'm still hopeful.

DISTRICT OF COLUMBIA AND ADRIAN M. FENTY, MAYOR OF THE DISTRICT OF COLUMBIA, Petitioners, v. DICK ANTHONY HELLER, Respondent. in HTML, courtesy of zeugma. I've read just over half of it, but its citations include at least one from A. Kellerman.

Statement of the National Rifle Association By Wayne LaPierre And Chris Cox On The Pending U.S...

The Coming Crisis of Big Government

The Kenya Connection Obama and Islamists

From time to time, I’ll ping on noteworthy articles about politics, foreign and military affairs. FReepmail me if you want on or off my list.

[green iguana]

Hmmm... the Federal government arguing that the Federal government can regulate whatever it wants... what a surprise.

[neverdem]

OK. Show of hands.

Let's see all those who supported this second amendment showdown in the U.S. Supreme Court. Raise your hand if you still think this was a good idea.

Tell me again how there's everything to gain and nothing to lose -- that having five justices on the U.S. Supreme Court define the second amendment is a good thing.

Don't hide. Don't slink away now. Stand up for what you believe in. Be counted.

Your gloating has been noted. The state derives its legitimate power from the people. The people don't get their rights from the state. I didn't ask for this fight. Government asked for it.

[neverdem]

BWAHAHAHAHA!

Yes, John R. Lott Jr., they can. But if the brief had been favorable, you would have written, "The Supreme Court can hardly ignore the Bush administration’s advice ..."

The court said yesterday it will limit its ruling to one question: whether D.C. laws "violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes."

I wouldn't gloat too hard.

[JohnRLott]

"The Supreme Court can of course ignore the Bush administration’s advice ..." BWAHAHAHAHA! Yes, John R. Lott Jr., they can. But if the brief had been favorable, you would have written, "The Supreme Court can hardly ignore the Bush administration’s advice ..." Ugh? I don't think that you are very familiar with my writings.