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.

[SunkenCiv]

Thanks nd.

[Ancesthntr]

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

Read the post - I want people to call the White House, to get Bush to withdraw the brief. I'm fully aware that the Court doesn't give a damn what the public thinks, only about the official filings that it receives (and even that is questionable).

[Alamo-Girl]

Thanks for the ping!

[Cacique]

More proof that our Muslim loving president. Compassionate conservative is a wolf in sheep’s clothing and a Liberal in disguise. His recent positions on Israel allowing Palestinians to return to Israel proper, independence for Kosovo and now this, tells me wants a legacy so that liberals and the Saudis will praise him long after he has left us for his grave.

Conservatives had better understand that conservatism is a movement not a party and we had better make sure we don’t keep voting for pretend conservatives who try to placate the left.

[tacticalogic]

that having five justices on the U.S. Supreme Court define the second amendment is a good thing.

This from Mister ""well the USSC says..." when it comes to the Commerce Clause.

[djf]

I thought the DOJ had released some statement supporting the position that it was an individual right?

That must have been BEFORE the election...

[robertpaulsen]

"This from Mister ""well the USSC says..." when it comes to the Commerce Clause."

"If you liked what they did to the Commerce Clause, you'll love what they're going to do to the second amendment."

Why anyone would want these clowns defining their second amendment rights is beyond me. And, you'll recall, I've said this from the get-go.

[tacticalogic]

Why anyone would want these clowns defining their second amendment rights is beyond me. And, you'll recall, I've said this from the get-go.

Dance, bureaucrat.

[robertpaulsen]

"Ugh? I don't think that you are very familiar with my writings."

And it appears as though you're quite content to leave it that way.

[ctdonath2]

Blown opportunity, RP.

[neverdem]

http://www.usdoj.gov/olc/secondamendment2.pdf

WHETHER THE SECOND AMENDMENT SECURES AN INDIVIDUAL RIGHT

The Second Amendment secures a right of individuals generally, not a right of States or a right restricted to persons serving in militias.

August 24, 2004

MEMORANDUM OPINION FOR THE ATTORNEY GENERAL

It's 107 pdf pages long. I haven't read it.

[djf]

So I was right.
They did release a statement supporting the “individual rights” view.
And it was BEFORE the election.

Nuff said.
I guess the lesson is “Run for office and you get to lie about anything you want, because you will never be held accountable”
How much more damage can shrub do before he goes back to Crawford?

[Ken H]

Tell me again how there's everything to gain and nothing to lose...

You got it. A bad ruling would not affect the current legal status of the RKBA anywhere in the US. Agreed?

OTOH, there are potential upsides. SCOTUS could decide that the DC law is repugnant to the Constitution. Do you favor such a ruling? If not, what ruling do you favor?

[robertpaulsen]

"A bad ruling would not affect the current legal status of the RKBA anywhere in the US. Agreed?"

It would be similar to the court's decision in Kelo. Do you believe that decision had no negative effect nationwide?

"OTOH, there are potential upsides. SCOTUS could decide that the DC law is repugnant to the Constitution."

The DC Circuit already ruled that. What's SCOTUS going to add? Tell me about these "upsides" of yours -- do you think SCOTUS will add machine guns and rocket launchers to home defense?

"If not, what ruling do you favor?"

Ooooh. I get to pick? I favor a ruling that awards me $10 million dollars.

Now that the fantasy part is out of the way, I think SCOTUS will rule that the DC Circuit went too far -- that even if the second amendment protected an individual right outside of a Militia, that right may be reasonably regulated by government under a rational basis review, not strict scrutiny.

[ctdonath2]

I haven't read it.

The Supreme Court judges have. And in light of it, they're not gonna like DOJ's fudging of the subject in their brief in this case.

[ctdonath2]

A bad ruling would not affect the current legal status of the RKBA anywhere in the US. Agreed?

Not agreed. A bad ruling would be: DC keeps its prohibitions, and thus Congress can extend them to the whole USA. No handguns period, and all long guns must be permanantly locked up, most certainly affects the current legal status of the RKBA everywhere in the US.

[Ken H]

It would be similar to the court's decision in Kelo. Do you believe that decision had no negative effect nationwide?

Nice dodge. Let me ask again. Would a bad ruling in Heller change the legal status of the RKBA anywhere in the US: "YES" or "NO"?

The DC Circuit already ruled that. What's SCOTUS going to add?

If SCOTUS upholds Circuit, it doesn't have to add anything else. That alone would strengthen the RKBA in the US.

_____________________________

ME: What ruling do you favor?

Ooooh. I get to pick? I favor a ruling that awards me $10 million dollars

I would really like a straight answer to this. What would be the correct way for SCOTUS to rule in Heller, in your opinion? Like you said, "Don't hide. Don't slink away now. Stand up for what you believe in. Be counted."

[Ken H]

A bad ruling would be: DC keeps its prohibitions, and thus Congress can extend them to the whole USA.

Congress already banned "assault rifles" once, so I don't think Second Amendment case law is what has restrained them. It's fear of the voters at the ballot box. A bad ruling maintains the legal status quo.

[robertpaulsen]

"Would a bad ruling in Heller change the legal status of the RKBA anywhere in the US: "YES" or "NO"?"

No. Not directly.

"Nice dodge."

Dodge? Me? You're the one who's dodging the potential ramifications of a bad ruling by simply focusing on whether or not the ruling has a direct impact on current laws.

"If SCOTUS upholds Circuit, it doesn't have to add anything else. That alone would strengthen the RKBA in the US."

Why? If SCOTUS adds nothing, then the ruling only affects D.C.

"What would be the correct way for SCOTUS to rule in Heller, in your opinion?"

I don't like the word, "correct". That implies that any other decision is incorrect.

I told you how I think they will rule in my post #54. It's also quite possible they'll rule that the second amendment does not protect an individual right outside of a Militia.

Either decision is consistent with the U.S. Constitution and the second amendment.

[robertpaulsen]

"DC keeps its prohibitions, and thus Congress can extend them to the whole USA."

DC has had these prohibitions what, 30 years now? What has kept Congress from extending them to the whole USA in those 30 years?