Posted on 02/18/2008 10:17:17 AM PST by neverdem
If you think the District of Columbia's ban on all functional firearms in all homes is a reasonable regulation under the Second Amendment, you'll love the friend-of-the-court brief filed by the Bush administration in D.C. v. Heller, now before the Supreme Court.
The Department of Justice's (DOJ) previously stated position is that the Second Amendment secures a right of individuals not restricted to militia service. But astonishingly, the Justice Department now recommends an elastic standard for determining whether a handgun ban is reasonable. According to the DOJ, the courts should consider the nature and functional adequacy of available alternatives. That may sound sensible at first blush, but it could be fatal to the Heller litigation.
Here's the rub: The Justice Department says the Court of Appeals ruling that overturned the D.C. ban might cast doubt on the constitutionality of existing federal legislation, including machine-gun regulations. So the administration urged that Heller be returned to the lower courts for appropriate fact-finding to determine whether rifles and shotguns in the home, as permitted by the D.C. Code, are an adequate substitute for handguns.
That came as quite a shock to those of us who believed the administration's professed fealty to gunowners' rights. What we got instead was a recommendation that could be the death knell for the only Second Amendment case to reach the Supreme Court in nearly 70 years.
Rather than a foursquare pronouncement that the D.C. handgun ban is unreasonable by any standard, the Justice Department has essentially endorsed years of depositions and expert testimony, and a rerun before a less hospitable Supreme Court.
In effect, a conservative administration has thrown a lifeline to gun controllers. Following the DOJ blueprint, they can pay lip service to an individual right while simultaneously stripping it of any real meaning. After all, if...
(Excerpt) Read more at washingtontimes.com ...
see:
http://www.gurapossessky.com/news/parker/pleadings.html
With respect to the DOJ’s pitiful position, it is plain that a lot of people, when it comes down to the wire, are just fearful of allowing citizens today to enjoy and exercise the full liberties they had when the Bill of Rights was ratified.
I just saved http://dcguncase.com/blog/case-filings/
LOL! Thanks anyway.
Uh, 'scuse me, but does this remark refer to the current administration?
Cities and local municipalities have long had the right to restrict firearm usage (think Tombstone). It's the federal laws that are unconstitutional re: the 2nd Amendment.
Regarding the Justice Department, while certainly a part of this administration, it is well peopled by career bureaucrats and clinton holdovers and, like the State Department, does not necessarily reflect the wishes of the President.
There is no way a DOJ brief on a case of this magnitude would go forward without approval at the highest level.
I wish these people would post a one-click download for the whole thing. I don’t have time to download and save all of those separately.
You mean in the same way that Condi is always on the same page as President Bush? He's a bit busy saving Africa these days and one doesn't know just how involved he actually is with this case.
Peas and apples. Yours a case where Bush has just plain conceded because he can't control people in the field who have already proven the capability of setting him up to take the Plame.
We're talking the Solicitor General in DC here, an appointed position.
i hope john lott is reading this and sends out his own brief in answer....
Number 1:
Government has no rights, only powers.
Number 2:
The 10th Amendment in the Consitution states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Meaning that the 2A enumerates rights to the people all the way down into states and cities. It can't be taken away by any 'right' (as you claim) or new power in any town or city.
“Cities and local municipalities have long had the right to restrict firearm usage”.
That's already been considered and rejected by smarter men than you, Robert Levy. DC still requires that long guns are stored in an inoperative condition within households, and that in no way enhances the argument of the plaintiff in the case.
The question put before the court is simple and direct. It's a pity that even pro-gun people can't understand it.
IIRC, I read four briefs: Heller's, the one from 31 states, the one from a bipartisan majority in Congress and the brief from the Solicitor General. All were pdfs. I wouldn't be surprised if they all of the others were pdfs.
My computer crashes if I try to open a pdf with too many windows open.
Oh please, that hyperbole is only even remotely plausible if the Supreme Court can sufficiently torture the meaning of "shall not be infringed" down to "reasonable relation" scrutiny, and I don't think that a majority of them are that brazen to attempt such bald-faced preposterousness.
To all gun-grabbers: Read my tag line!
The bush administration shows it’s true colors via the DOJ. All the people all the time, disarmed is the goal
Yes, even in DC...
A bit of caution here: The Second Amendment doesn't mention felons or the mentally ill, only "the people." It has fallen to other authorities to restrict those groups. Because we have allowed those "authorities" to do so, we have paved the way for them to restrict certain types of firearms from the general public. In essence, we traded our freedom for a bit of perceived security.
"That doesn’t make it right, or Constitutional."
Granted.
Poor choice of words on my part.
I was just trying to say that federal gun control laws are the ones that need to be struck down. Poorly expressed on my part.
bookmark
See above post to Bear_Slayer & SWAMPSNIPER.
“Moreover, under the Supreme Court’s 1939 precedent, U.S. v. Miller, machine guns are not protected by the Second Amendment without showing that they are in common use by civilians.”
The author lost me on this one. How does the fact that machine guns are uncommon due to a virtual ban justify the ban?
I disagree. The States are just as capable as the feds at enacting unconstitutional legislation, and just as deserving at having it struck down. (Although that may have to wait for another case.)
It lost me too. Aren't over 100,000 pre-1986 machineguns out there with the ATF blessing?
Getting rid of the Federal gun control laws is only a start. States like New Jersey, California, New York, etc have no more “just” power to infringe on a civil Right than the Fedgov does. In fact, USC Title 18 sect 241 and 242 make it a crime to attempt to do so.
In fact, the Constitution does mention felons, albeit indirectly - the Constitution provides that a person may not be deprived of life, liberty, or property without due process of law.
"Liberty" encompasses the right to arms.
Just as imprisonment is a punishment for a crime levied upon conviction by a jury persuaded beyond a reasonable doubt of your guilt, so is loss of your right to arms.
Likewise, someone insane would need to be deemed so by due process of law in order to be denied liberties.
If someone suggests that the Second Amendment applies to prisoners, you can tell they're not being intellectually honest about it and are simply grinding an anti-gun axe.
Incorrect. The 14th Amendment bound all the states to abide by the Bill of Rights, also.
No big surprise for Bush. He has betrayed the American people several times, and this is just further proof that he is, in fact, a traitor. He, along with several other traitors in our government have done all that they can to destroy middle class Americans, and they know we're mad! They think they have to take our guns before there is another revolution! They feel like they can control us if we can't defend ourselves.
Agreed... The Constitution mentiones felons (kinda) but the Second Amendment to that Constitution does not. As I understand these things, an amendment takes precedence over the original document, else we wouldn’t have a graduated income tax. While I’m not sure I’d want to go before the SC and argue that newly released convicts should be permitted to buy guns at Wal Mart, there does not appear to be anything in the Constitution to prevent it. Since the Constitution is a list of things the government can and cannot do it has to fall to other, lower authorities to make and enforce those rules. They have done so... with a vengeance.
“mentiones”??? My proof-reader needs new glasses.
It would be absurd to suggest that prison guards would need to get a warrant based on probable cause in order to search a prisoner in their custody. It would be silly to posit that the government could kill someone ("deprived of life") by due process of law, but not disarm someone. The "due process" clause was not repealed by any amendment, and is still the supreme law of the land.
As for felons who've completed their sentence and parole, that's certainly an issue with current law - if someone can't be trusted with a gun, then they shouldn't be released from prison. But that's another case down the road, with a carefully-selected plaintiff who was convicted, for instance, of felony child abuse at the age of 18 for making out with his 17 1/2-year-old high school sweetheart. We can cross that bridge down the road, once we win this case.
You speak Spanish and didn't know it! :D
This just keeps getting better and better...
Its going to go 6-3 against us...The only ones who will go our way (for sure) will be Alito, Scalia and Thomas...
The way (the question) was written is why Roberts won’t go our way, regardless of the intent...
Swing vote??? forgetaboutit...
Like I said last year when this was being formed up, I hope I am sooooo wrong on this, but with all the amicus being filed against our side of the case, it proves our government wants to difuse and take away the ability of us, the people, to resist...
Forget about the polls...This election proves its going to be difficult for conservatives to regain and protect this most basic and individual right...
Too may mush minds out there, not willing to see or understand how much of a real threat this is to this country...
The US Supreme Court has repeatedly talked about the Second Amendment in terms of an individual right over the years. I think you’re definitely going to turn out to be completely wrong about it.
I wouldn’t be surprised to see a 9-0 decision in favor, but I’d be happy with 6-3.
If the Second wasn’t an individual right, the Miller court would have dismissed for want of standing.
Well, I hope you are right...
I have a reason to not be optamistic about this...But I also have a reason to be pessamistic about our chances...
That way I am not going to be surprised later on this year...If it does go our way, expect nothing to happen anyway because D.C. and ALLLLLLL those briefs filed by the opposition will keep this in appeals till the next one comes along...
1) every gun owning lawyer reading this needs to be filing a pro gun brief in this case, or else you will soon be non-gun owning laywers (and what criminal prosecutor wants to be a non-gun owning lawyer?)
2) has any one else noticed how a lot of government agencies are slowly turning on “we the people”? what the hell, man? the DOJ no longer represents me. Nor does POTUS. Dont disappoint me SCOTUS!
3) they really need to get some professionals from Valhalla or Thunder Ranch to come to DC and explain to SCOTUS that, yeah, locked up disassembled rifles and shotguns are fine and dandy for home defense, except if you live in an apartment, or a town house, or have other people in the home in other rooms, or have narrow hallways, or have lots of tight corners, or need the gun available right away, or basically any other home defense scenario. Buck shot is... ok... as long as you hit your target, but drywall wont stop rifle rounds. Even fat bad guys wont stop some rifle rounds. I own an AK that can quickly be retrieved and loaded with 7.62x39 fmj but my first choice for home defense is going to be 45acp jhp. So much easier to wield a hand gun in the confines of a small house or apartment than it is a rifle, and there is less concern for over-penetration with a handgun round. Also a hand gun can be held with one hand while you hold your flashlight or telephone (to call 911) with the other.
This is just the latest in a long line of battles for the Second Amendment, and there will be plenty more battles after this one. The war is a long, long way from over, and I wouldn't fret too much about throwing in a bone about machine guns, which aren't even germane to the question before the court anyway.
The DOJ is engaging in "Dred Scott" reasoning, which goes: "if black people were citizens, then we wouldn't be able to legally oppress them, so they can't possibly be citizens." I expect that the Supreme Court will see right through that, considering that the Civil War was the fallout of that particular decision.
If they don't see through it, well, the justices will deserve the reaction they get.
1) every gun owning lawyer reading this needs to be filing a pro gun brief in this case, or else you will soon be non-gun owning laywers (and what criminal prosecutor wants to be a non-gun owning lawyer?)
IMHO, that's the best thing going for an individual right.
Court agrees to consider D.C. gun ban (The court...will limit its ruling to one question!!!)
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."...
Thank goodness we have a Republican in the White House.
I like your reasoning.
IMO, if a convict has served his sentence and is freed, then he should be able to have 2A rights restored.
If a convict is so dangerous that he cannot be trusted with a weapon he shouldn’t be walking the streets.
That is the question. The court will not be addressing the question of machine guns in any way shape or form that is anything other than dicta.
They will determine what is a Second Amendment right, how it applies to "handguns and other firearms," owned by private individuals who have no link to a militia, in their homes.
If throwing that machine gun bone prevents the court from engaging in "Dred Scott" logic of ruling on the implications ("machine guns? can't have that!!") rather than the principles, and thereby prevents another Civil War, it's worth the price of a slightly more uphill battle to rightfully expand Second Amendment protections to machine guns later on, as I see it.
OK, OK, I won’t worry! ;-)
(now what am I gonna do????)
I don't understand why you say this. Narrowing the question in this manner is a sensible thing to do and was necessary, according to comments I have read, because the original complaint filed by DC was legally unintelligible.
Roberts, as I recall, is very much of the opinion that the Court should rule as narrowly as possible with attention only to the case before them. The way the question is worded, the Court will have to find that the Second Amendment is an individual right and that strict scrutiny is the proper standard in order to uphold the DC Circuit opinion.
Because DC is totally under the control of Congress, this case will not address "incorporation" under the Fourteenth Amendment. That means that a proper decision will only be a triple, instead of a home run. We'll be only a sacrifice fly or a bunt down the first base line from scoring BIG TIME.
It was absolutely essential that Levy include all relevant arguments in support of Heller, given that the Miller decision is "binding" precedent. If it is possible to decide Heller without throwing out Miller, then that makes the argument for Heller stronger, regardless of the Constitutional errors in Miller.
It certainly does not mean that Levy agrees with Miller or that the Supreme Court should not dump Miller at the first opportunity. Levy is arguing that no decision overruling Miller is necessary to decide Heller.
My hope is that the Supreme Court will dump Miller. The plain language of the amendment protects all arms. If the Founders only meant to protect some, they knew how to say so.
...in their homes...
Thats a point where they can still regulate and infringe upon those folks “outside” their homes...
See, the question is written in a narrow fashion, yet there are those “expecting” a broad opinion...Thats not going to happen...
Sure, we may see an affirmation of the individual right, but it will never be given in a broad manner...
Sorry to be such a negative nancy on this for so long, I just see these amicus briefs and shake my head...
I guess we’ll just have to see how its going to go...
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