Posted on 01/15/2008 5:39:38 AM PST by FrPR
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 the book, Freedomnomics upon which this piece is based and is a Senior Research Scientist at the University of Maryland.
Like father like son.
Huge portions of existing legislation are unconstitutional based on the plain meaning of the text and on original intent. That is as true for gun laws as for many others. The moneyed elites have things in mind for us that we don’t want them to do. That’s why we’re being disarmed. So we can’t resist.
Unfortunately, it may take an uprising by voters to rein in the Justice Department...CW2 ping!
We know that Pres. Bush has the power to fix this by ordering that the solicitor general brief be withdrawn or significantly amended but will he do so??? I don’t think the new improved decider will do anything!
Like Ronald Reagan you mean. Remember FOPA of 1986 (the Hughes Amendment in particular)?
ping.
Wow. Point John Lott at any piece of anti-gun crapola written by leftie lawyers and professors and he methodically unveils the lies, fabrications, distortions, and “mistakes” that prove it to be just another salvo of mendacious propaganda.
IIRC, daddy Bush signed it.
yeah.....both of them.
though I could forgive Ronny. He did so much good, in so many ways other than the 2nd amendment.(though the 2nd is the amendment that guarantees the rest.....the most important)
Bush and his father don’t pretend to be conservative.
Amnesty?
Support for gun control.
Nominating his little old lady lawyer for the supremes.
Spending like a drunk sailer on leave after months on a ship.
Man I’m looking forward to no more Bush’s and hopefully no more clintons.
Nope, you recall incorrectly. RR left office in 1988.
http://en.wikipedia.org/wiki/Firearm_Owners_Protection_Act
Seems Dick Cheney no longer has much influence over W.
My thoughts exactly.
I like to read a chapter or two of MORE GUNS LESS CRIME and wash it down with this:
http://youtube.com/watch?v=9rGpykAX1fo
Would this brief have been written if Ashcroft were still AG?
...That to secure these rights, Governments are instituted among Men, deriving their just Powers from the consent of the governed. That whenever any Form of Government becomes destructive of these Ends, it is in the Right of the People to alter or abolish it, and to institute a new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.
Without useful weapons in the hands of the citizens, such action would never be possible. Our Founders knew this to be true, often from firsthand experience.
“The moneyed elites have things in mind for us that we don’t want them to do.”
You are so right. We’re all gonna really miss freedom.
Jorge the Mexican strikes again!
Hurry up January 2009 so that George W. Bush will be gone and quickly forgotten by the 61 million voters he ignored, let down, abandoned, and lied to.
“We know that Pres. Bush has the power to fix this by ordering that the solicitor general brief be withdrawn or significantly amended but will he do so??? “
I doubt Bush has even the foggiest clue what’s happening with this case. And if he did I suspect he’d support the DOJ.
You might want to drop the Pres and Dick Cheney a line on this one. I did. Simply put, the Solicitor General made an error in the appropriate standard of judicial review in his brief. Anything less than strict scrutiny for a right specifically enumerated in the BOR is irrational. The BOR isn’t for the minor stuff.
comments@whitehouse.gov
vice_president@whitehouse.gov
You bet.
“We’re all gonna really miss freedom.”
There will be hell to pay before they take much more of it.
“The moneyed elites have things in mind for us that we don’t want them to do.”
If I were a politico and I knew that at some point people who were forced to put their money into Social Security all their lives were going to be told the system was bankrupt, I would want all guns taken away from the public too.
Yes, a barrel shroud is “the shoulder thing that goes up.”
Good source link: Gun Law News
>>>>I doubt Bush has even the foggiest clue what’s happening with this case. And if he did I suspect he’d support the DOJ.
The lights at the White House are turned-off until January 2009.
I’m not a major fan of either of the Arbustos, BUT, the alternatives were worse. More is the pity.
Yes, such a brief would have been written whoever was AG.
The AG is in the difficult position of submitting a brief that tries to reconcile what the Constitution plainly says with what Congress has passed into law. The Executive Branch generally operates on the principle that whatever Congress passes is Constitutional ... somehow. The Constitution says “...shall not be infringed”, yet 922(o) says new MGs are banned - and the AG somehow has to find common ground. Seems the only way is to say “hey, let’s back off this ‘strict scrutiny’ thing, toss it back to the lower courts, and just kinda bury the whole issue for another 70 years.”
I’m not sure the AG is being malicious so much as just doing his rock-and-a-hard-place job.
Bush’s AG follows Bush’s orders.
The Sollicitor General follows the Director of the AG.
The SCOTUS is supposed to follow the Constitution not the direction of the President - especially a man of such flawed and limited intellect as the current incumbent.
Bush is a total, unmitigated catastrophy. Even those things which he has initiated which were properly motiviated, he has succeeded in screwing up. The Democrats never had a better Republican President than George W. Bush.
She don’t know what they are, but she’s agin em.
Unbelievable. Idiots like this one should learn a little about the subject at hand before they pass stupid laws.
Be assured this originated in the White House with the “Compassionate” Conservative. Don;t look for a resolution to the problem from the individual who created it in the first place.
Just hope the SCOTUS has the intellectual integrity and honesty to follow the Constitution and NOT this incumbent.
The words “Bush” and “President” are beginning to stick in my throat as much as “Bill Clinton” and “President” stuck in it.
The problem is not with the Justice Department. They are merely bureaucrats who follow the directions of elected officials.
The problem lies with the American People who are too stupid or lazy to take note of the fact that their country is being stolen from under their noses and their state guaranteed God-given rights are being stolen by a cabal of elitist liberals in both political parties.
Damn straight. I can't help but think that that is a big part of all of this.
May her husband rest in peace (killed by a nut on the Long Island Railroad), but he was murdered by a deranged schizophrenic and not by a high capacity handgun magazine.
And once more, had even a single other passenger been armed they might have killed or disabled Ferguson before he had the chance to kill so many others.
Time for a new tagline.
Don’t forget that the Israelis had a right to defend themselves until Bush cut a deal with Chirac and brought the UN in to stop them.
I’m not sure the brief is really so bad. Before you beat me up for it...
- The brief very neatly shreds DC’s brief in very short order. It’s probably the most efficient official demolition of the “collective right” argument I’ve seen.
- The brief then goes on to whine “if DC can’t ban X then we can’t ban Y, so please don’t overturn DC’s ban”, appeals to lowered standards of scrutiny, and generally and _grossly_ fails to lay out a sound legal reason/path for doing so.
While the former is persuasive, the latter is not. The latter is frankly insulting to a Supreme Court judge’s integrity, and methinks we’ll see a harshly-worded portion of the verdict berating those who ask the Court to fudge plainly-worded Constitutional law. If anything in the Constitution clearly demands “strict scrutiny”, it’s a sentence which ends with “...shall not be infringed”.
The AG’s brief may actually help. Agreed, it may not.
Lott said, "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."
Wrong conclusion.
The Dept of Justice brief is squishy soft about the fate of the DC ban, saying that a broad-scope, high-impact ban (such as DC's ban) "would be difficult to defend" and DC's ban "may well fail." That does NOT mean the same as DC "should also be able to ban handguns," as Lott mischaracterised the brief.
The relevant language from the Justice Dept brief:
As discussed, a general prohibition on the possession of a type or class of firearms is subject to heightened judicial scrutiny that balances the impact of the challenged restrictions on protected conduct and the strength of the government’s interest in enforcement of the relevant restriction. 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. 28 Cf. Burdick, 504 U.S. at 434. Under that analysis, the D.C. ban may well fail constitutional scrutiny.
You are in error my friend. The bureaucracy is part of the problem. They are very aware that the intent is to head for international socialism and they are aiding, even encouraging, it because they get to keep and increase their power. I agree whole heartedly with the rest of your post and feel the same.
“Paging Mr. Bowman”
Ravenstar
No, Reagan signed the machine gun ban. It was pro-gun until the 11th hour, when congress slipped in an ambiguous passage that ATF has interpreted as a ban. Another great NRA “compromise.)
Never been challenged that I know of.
The MG owners got rich, and the rest of the people didn’t care (the NRA surely doesn’t.).
This is the last line in the sand.
I wonder what Teddy Kennedy’s position is on this case? Oh, wait a minute. This is his position. Never mind.
As discussed, a general prohibition on the possession of a type or class of firearms is subject to heightened judicial scrutiny that balances the impact of the challenged restrictions on protected conduct and the strength of the government’s interest in enforcement of the relevant restriction. 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. 28 Cf. Burdick, 504 U.S. at 434. Under that analysis, the D.C. ban may well fail constitutional scrutiny.
That's double talk for "We hope the degree of infringement invites a certain level of judicial scrutiny but not so much to our dislike."
see post 35 for a summary of my viewpoint (even though somone else wrote it)
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