Skip to comments.Candidates Must Trump Justice Department in DC Gun Case
Posted on 01/15/2008 11:52:32 AM PST by SJackson
The Bush administration missed a golden opportunity to stand up for the Second Amendment when it filed a Supreme Court brief that only gives lukewarm support to gun rights, asking the Court to send the case back down to apply a lesser standard of legal protection to the Second Amendment. Presidential candidates should tell us where they stand on the governments position.
The Office of the Solicitor General (OSG) is the Justice Department branch representing the federal government in the Supreme Court. Its briefs carry great weight as the official position of the United States. OSG filed a brief in DC v. Heller, the case regarding the DC gun ban (previously titled Parker v. DC).
This brief reaffirms the Bush administration position that the Second Amendment guarantees an individual right applying to private citizens. It says that right should be subject to what is called heightened scrutiny. And it makes it clear that the DC gun ban should be abolished.
But the brief filed by OSG is nonetheless disappointing. Though calling for heightened scrutiny, it says the Court should apply intermediate scrutiny. While intermediate scrutiny may be appropriate in some situations, its not a strong enough standard to apply to a law that says a person cannot have a handgun in their own home for self-defense, as the DC gun ban does. Such a law should be categorically unconstitutional, which is what the DC Circuit Court held. Such a law should be subject to the highest level of scrutiny, called strict scrutiny, to make sure that the law is narrowly tailored to achieve the desired result.
Alsodisturbinglythough OSG affirms that the Second Amendment secures an individual right, it does not call it a fundamental rightwhich is very important for legal reasonsand asks the Court to deny it the level of protection of a fundamental right.
This brief is a mixed bag. Some say it takes the side of DC. Not so. Asking the Supreme Court to reverse the DC Circuit Courts decision would take the side of DC, and OSG clearly does not do that.
But it does not ask the Court to affirm the DC Circuit Court judgment in favor of Heller, either. Instead, it asks the Court to vacate (or throw out) the lower court opinion, and send the case back for a rehearing applying a lesser standard of review to the rights embodied in the Second Amendment than are typically applied to other amendments in the Bill of Rights, like the First and Fourth Amendments.
Each presidential candidate must speak out on this brief. The Justice Department has not gone far enough to support the fundamental rights guaranteed under the Second Amendment, and so those who aspire to lead our nation must step up and call on the Supreme Court to affirm the judgment of the DC Circuit striking down the ban.
This is a chance for all the GOP candidates to show what theyre made of, distinguishing themselves from the Democrats. With Bill Richardson out of the race, the remaining Democrat candidates all have an F rating from the NRA.
Mike Huckabee and Fred Thompson have outstanding records supporting the Second Amendment. Heres their chance to make that an issue in the campaign, reminding gun owners of their unwavering support for our civil rights.
John McCain has had a rough time with gun owners, mostly over campaign finance reform and efforts to federally regulate private sales at gun shows (dealer sales are already federally regulated.) But for many years before that he had a solid record on the Second Amendment, and hes stepped back up to the plate in recent years, opposing reauthorization of the Clinton Gun Ban, becoming a cosponsor of the tort reform bill to end junk lawsuits against gun makers, and cosponsoring federal legislation to repeal the DC gun ban. Speaking out on this issue would be welcomed by gun owners.
Rudy Giuliani should take every chance he can get to impress gun owners. After years of unfriendly policies and actions in NYC, the former mayor has to make the case that hes worlds apart from Hillary and Obama on the Second Amendment. To his credit, Giuliani has said that the DC Circuit was correct in this case, that the Supreme Court should affirm that judgment, and that the DC gun ban is unconstitutional. He needs to make that a theme in his campaign. As the legal heavyweight in the GOP field, he should make the most of this opportunity.
Mitt Romney has the opportunity to gain back the ground he lost with gun owners last month when he endorsed the Clinton Gun Ban and the Brady Bill on Tim Russerts Meet the Press. Unless he wants to lose Second Amendment supporters by the droves, he had better come out on the right side of this OSG brief. In fact, Romney should retract his ill-advised endorsement of the cornerstone legislation of the Clinton gun control agenda.
All of these Republican candidates should speak out on his issue, and challenge their Democrat opponents to do the same.
The OSG brief calls on the Court to have the DC Circuit decide the case over again using a lesser standard of protection for the Second Amendment. That would be a defeat for gun owners. And such a rehearing would delay a Supreme Court pronouncement on the Second Amendment for at least a year. With several Supreme Court vacancies likely during the next presidents term, its becoming all too clear that the Second Amendment is at stake in this election.
Bush’s thinking on this is beyond me, and his stance on this issue will not help the GOP in November.
Not at all - It is outright eerie.
I don’t think it will hurt the GOP, the candidates will have to stand on their own. I agree his stance is mystifying, as have been many of his actions.
Staying away, or apart from, the race because of perceived voter displeasure will not help the eventual candidate any more than Clinton’s absence helped Gore.
If the so called candidates continue to ignore gun owners,
they will pay the price at voting time.
Fred is the only one courting the gun owners.
Thats why he will win SC.
The silence is
After all, to gradually grow in both size and ability is the natural tendency of government, is it not?
You're right, that would be nice, but I don't see that as being on GWB's agenda. Even if he doesn't care, he should have supported the 2nd amendment as a fundamental right on the merits.
Good piece, thanks for posting. This is one of the main reasons I don’t think Huckabee wouldn’t be quite as bad as most freepers make him out to be.
The Huckster is surprisingly pro-gun. He’s a complete nutter on government socialist spending though. Have you seen his health care stuff? May as well make Hillary Care a GOP plank if we elect him.
Which is patently absurd on its face. It is specifically mentioned in the Constitution, how can it be anything other than a fundamental right?
Nothing would give me greater pleasure than Thompson coming in at least 2nd in SC, but I doubt he will make 3rd.
“My point is that the President still has every opportunity to do things to help in 08”
You must not have heard about the Real ID Act’s (or as I call it, The Democrat Politician Full Employment Act), partial implementation on May 11.
As of May 11, if your State doesn’t agree to a national driver’s license, you will not be able to get onto an airplane or enter a Federal building without your passport. The resulting fury will guarantee no Republican can get elected to anything.
Put the 2nd Amendment position on top of the Real Id Act and what other interpretation can you get: The President is doing everything he can to get a Democrat elected to every office from President to Dog Catcher.
The GOP has been blowing smoke with all their talk about smaller, less intrusive government. They are at least as bad as the dims.
“The natural progress of things is for liberty to yield and government to gain ground.”
Thomas Jefferson to Edward Carrington, 1788. ME 7:37
Anyone else think we’ve yielded more than enough??
He can’t get re-elected so now he doesn’t care what his numbers look like. He has an agenda and he doesn’t care who he tramples to accomplish it. We knew several years ago that his support for the 2nd Amendment was only superficial.
Now we see that he believes that the government can restrict your RKBA rights if it can dream up a good enough reason. And who decides what reason is good enough? Why, the government, of course!
If Fred publicly calls on the President to withdraw this brief, then he'll score big points with voters. As an attorney, he can explain well why this brief is actually very anti-2nd Amendment.
Further, it is possible that it'll actually get done - I'm not sure that this was even on Bush's radar. It sounds suspiciously like some career gov't lawyer's way of screwing individual rights in a fait accompli. Bush might decide to withdraw the brief if he knows about it, comes under pressure from Republican candidates, and if the NRA actually emails its members and asks them to melt the White House phone lines. Of course, I'm not holding my breath - Bush isn't exactly a friend of the 2nd.
The candidates should speak out as if this were a modern-day Brown v BOE or Plessy v Ferguson.
The position taken by the Justice Department is that repulsive.
Yep, fundamental rights generally get "incorporated" against state government infringement via the "due process" clause of the 14th amendment. Which is utter rubbish, the 14th's Privileges and Immunities Clause already did that for all of the rights protected against federal infringement by the Constitution, including the first 8 (or 9) amendments.
I'll bet even Claire thinks it's just about time.
How a clearly defined individual right isn’t a fundamental right I haven’t a clue, though I admit I haven’t a clue why the Bush Justice Dept. came down with this brief. Is he planning on running for Governor somewhere?
Would be nice. While the decision rests with the Supremes, the brief is significant, and may have an impact. And is the direct responsibility of the President. Of course they won't, this will be over by the time the general election rolls around.
You could be right, but it's his responsibility. I won't belabor the number of issues that weren't on his radar.
But what's the upside here.
I understand his position changes on Israel. And Dubai Ports. And immigration, he was always an open borders guy. And Harriet Myers. And McCain Feingold, maybe, though that was a breach of his responsibility. No child left behind, medicare drugs, ok votes.
What's going on here?
It seems to have been written by the BATFE. Their chief counsel's name is on it, all rest of the government lawyers, show as just being "Department of Justice", of which the BATFE is a part, but the rest are Deputy or Assistant Attorney Generals (IE. HQ types), other than Solicitor General who is in effect the lawyer for not just the Justice Department, but for the whole federal government.
Letting the BATFE write a brief on the meaning of the Second Amendment is definitely letting the coyote guard the chicken coop.
Perhaps "Dred Scott" would be a more predictive analogy?
Nah, Secretary General, usurping the slot from Billy Jeff.
Funny you mention that. I was thinking the other day that if he can’t be First Fellow, Bubba would probably have a ball in the Senate. Reinstitute an old tradition, party with Ted, show up when you want, and recapture a bit of power and pork.
They also maintain that the second is no bar to complete and total bans on firearms, by class or in toto, in the hands of ordinary citizens.
What many people are quietly stating here and there is that if SCOTUS trips up on the Heller case, we will see bloodshed, brief or no brief. This scares the hell out of me but it looks like a lot of Americans are just sick and tired of the crap that is happening. I’ve seen comments on “the soapbox hasn’t worked, the ballot box obviously isn’t working, time for the ammo box.” and others.
If these people are correct, I wonder how a civil war would effect the upcoming elections? If Bush is smart, he’ll get a clue and get the brief withdrawn and STFU. The presidential candidates really need to make comment on this issue or they will find a lack of voters this November.
As it stands now, we can only wait and see and pray that SCOTUS will stand head and shoulders above the rest of the Government by doing the right thing.
Face it, “compassionate conservative” is code for liberal.
I don't see that at all, nor would I in any way be supportive.
A very thin reed that is, but Hope springs eternal. And we haven't seen the briefs of *our* side yet. That comes about February 4th.
To obvious...but you are correct.
the president should order the brief withdrawn and re-written.
hopefully SCOTUS will do the right thing, since the government’s position could be applied equally to other individual rights with frightening results
and if the underlying issue was not about guns you can be damn sure that all manner of subversive organizations like the media and the ACLU would be rioting over this brief they’d be that pissed off
Now, I have changed my mind. Though weak, the US brief is treason.
The argument in the US brief is that the right of US citizens to keep and bear arms is no more than the common law right to use arms in defense of self and state.
This is equivalent to stating: "The protection of the right to keep and bear arms of the citizens of Boston in 1791 under the US Constitution was no different than the protection of the right of those same citizens of Boston on April 19th, 1775; the date when government troops killed their own citizens while attempting to disarm them."
The weakness of the argument lulled me into believing that the Supreme Court would view such an argument with the scorn that it deserves. Unfortunately, I am guilty of assuming the best when I should be preparing for the worst.
I will be writing a letter explaining the above to both the President of the United States and to the Solicitor General of the United States. The issue is too important to permit this brief, however weak and wrong, from going unchallenged by those who know better.