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 government’s 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, it’s 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.
Also—disturbingly—though OSG affirms that the Second Amendment secures an individual right, it does not call it a “fundamental right”—which is very important for legal reasons—and 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 Court’s 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 they’re 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. Here’s 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 he’s 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 he’s 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 Russert’s 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 president’s term, it’s becoming all too clear that the Second Amendment is at stake in this election.
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.
Mike
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.
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