Skip to comments.Bush Administrationís Amicus Brief in D.C. Gun Case
Posted on 01/14/2008 7:32:42 AM PST by jdm
The Bush Administration has filed an amicus brief in the D.C. gun case, which you can read here. The Administration agrees that gun ownership is an individual right, but says it is subject to reasonable restrictions. Here is a representative paragraph:
Although the court of appeals correctly held that the Second Amendment protects an individual right, it did not apply the correct standard for evaluating respondents Second Amendment claim. Like other provisions of the Constitution that secure individual rights, the Second Amendments protection of individual rights does not render all laws limiting gun ownership automatically invalid. To the contrary, the Second Amendment, properly construed, allows for reasonable regulation of firearms, must be interpreted in light of context and history, and is subject to important exceptions, such as the rule that convicted felons may be denied firearms because those persons have never been understood to be within the Amendments protections. Nothing in the Second Amendment properly understoodand certainly no principle necessary to decide this casecalls for invalidation of the numerous federal laws regulating firearms.
Allah seems to treat this as though its weakness on the part of the Administration although its hard to know whether hes just having a little fun throwing red meat to his readers.
But I think the Administration is correct. I support the Second Amendment but I dont want felons carrying firearms, and I dont think the Founding Fathers would have been upset at a law preventing that.
Where the rubber hits the road is in the application of the principle in other contexts. Can the government ban say, machine guns? Purists would say no but would they say the same thing about nuclear weapons? If the idea behind the Second Amendment is to give the citizenry a credible threat of violence against an oppressive government, then citizens need nukes, right? Which means that when the TSA finds one in some guys briefcase, they should wave him though right? Second Amendment, baby!
I dont think any of us thinks the absolutism goes this far. So yes, there will have to be balancing. Thats okay we do it for the First Amendment all the time, and that is also a cherished freedom and individual right. For example, you cant libel people without consequence. All rights have some limits. What those limits are is the real question.
when did a nuclear weapon become a firearm?
I think that was a bit of a hyperbole on the author’s part.
The “big lie” in the brief is machine guns in private hands present an unreasonable danger (if the 1986 ban were overturned.) In the decades before the ban, registered machine guns in private hands were responsible for ZERO homicides.
Registered machine gun owners are the least threat to public safety of any demographic, contrary to the Bush DOJ brief.
Perfect example of why you don’t compromise to get “electable.”
We may like one politician more than another, but at the end of the day the state is always the state, and we cannot expect it to be otherwise.
1. Felons and convicts are a subset of "the People" and are restricted by many laws that safeguard the citizenry.
2. What is properly construed by "shall not be infringed?"
“such as the rule that convicted felons may be denied firearms because those persons have never been understood to be within the Amendments protections”
Which has nothing to do with the 2nd amendment per say. It’s the 5th amendment that would deny felons firearms after due process.
Please. no facts. We're dealing with feeeeeeelings here.
“To the contrary, the Second Amendment, properly construed, allows for reasonable regulation of firearms”
Here is where the Bush administration’s argument falls down. Let’s define reasonable. Does reasonable restrictions mean that one cannot own a handgun in DC and if one owns a rifle in DC it must be broken down and rendered unusable. I would think that in any normal persons thinking, this is very unreasonable to completely ban a set of firearms and render another set of firearms unusable.
Reasonable restrictions are not allowing convicted felons or people who are deemed physcho or minors to be able to own firearms. Unreasonable restrictions is to ban working firearms from everyone in the city!!
Another unreasonable restriction is to ban a whole category of arms, like modern machine guns, and so-called assault weapons.
If we consider a person to have served his time (paid his debt to society) then he should get ALL of his rights back or he is not fit for society and should not be released.
“Perfect example of why you dont compromise to get electable.”
Normally I would agree with you. However, the only reason that this case has a pretty good shot at POTUS defining the 2nd A as an individual right is because we have Roberts and Alito on the bench. If Gore or Kerry would have been elected, is there any doubt that two libs would be on POTUS now to replace O’Connor and Renquist with one of them being the Supreme Court Justice?
John Jay would be turning over in his grave right now, if he’s not already...
“If we consider a person to have served his time (paid his debt to society) then he should get ALL of his rights back or he is not fit for society and should not be released.”
Perhaps there should be some type of review board to review cases if someone wants his rights back. However, I would not arbitrarily give all convicted felons their rights back. That encompases a lot of bad guys I don’t want to see legally allowed to own firearms or vote for that matter.
The long and the short of it is whether we will continue to tolerate a too intrusive government, from any level, in our daily lives.
The answer, I fear, is yes. And we will rue the day.
There is no ambiguity in the Second Amendment. It is plain, succinct, and logical. Restrictions on felons and mentally incompetent persons, may be within the constraints of reasonable, but there is no provision for ‘reasonsble’ constraints in the text. Does that open a can of worms for many folks? Probably.
The argument often used is that common sense restrictions on the Second Amendment are not unlike the “yelling fire in a crowded theater” argument applied to the First Amendment. I’m not sure I fully agree with that notion, at this point, but I’m open to further discussion.
However, the restriction on machine guns is, IMO, unconstitutional, despite being upheld over the years since it’s creation in the late 1930’s.
There’s an argument elsewhere in this thread that alludes to nuclear weapons. Explosive devices are not generally considered to be firearms, which is the subject of this action.
"Nothing in the Second Amendment properly understoodand certainly no principle necessary to decide this casecalls for invalidation of the numerous federal laws regulating firearms."
I must call BS on that.
Not trying to be a jerk but I do belive that we removed any possibility of having "partial citizens" from the constitution.
Maybe a law that says after completion of your sentence and "X" years (say 5) without arrest you get all rights retored automatically.
“...compromise...However, the only reason that this case has a pretty good shot at POTUS defining the 2nd A as an individual right is because we have Roberts and Alito on the bench.”
Actually, it was the unwillingness of the conservative base to compromise that gave us those fine gentlemen.
How do you think Miers would have voted?
Once a person is convicted of a crime that involved the use of a gun, he should be severely punished--no parole given, no excuses made.
Our rights should not be infringed because there are folks who commit crimes using a gun.
Ignorant, stupid, or evil. They've gotta be one of 'em...
The problem with using the analogy of falsely shouting fire in a crowded theater to banning possesion of arms is that the person still has his means to shout fire, i.e., his vocal chords. Banning the implements of self defense would be the same as removing our vocal chords so we can’t shout fire and thereby cause injury.
The Court should affirm that the Second Amendment,
no less than other provisions of the Bill of Rights,
secures an individual right, and should clarify that the
right is subject to the more flexible standard of review
described above. If the Court takes those foundational
steps, the better course would be to remand.
Why is it that a `made up’ constitutional right like “the right to privacy” or a “suspect category” receives the `strict scrutiny’ standard of review, while the 2nd Amendment should be subject to—at least according to this administration `mouthpiece’: “a more flexible standard of review”?
“When the government can define the limits of your rights, you don’t have any.”
A right is a right. A privilege is how Bush’s DOJ views firearms ownership.
How about seeing them legally allowed to own cars, knives, gasoline, matches and baseball-bats?
“Theres an argument elsewhere in this thread that alludes to nuclear weapons. Explosive devices are not generally considered to be firearms, which is the subject of this action.”
The power of a nuclear weapons can’t be controlled by an ordinary citizen and would threaten the lives of others, therefore, the banning of nuclear weapons is within the constitution since the rights of others are threatened. The same argument can be made regarding biological weapons ownership. A Firearm on the other hand can be controlled by it’s owner and is not indiscriminate in nature, therefore firearm ownership falls under the protection of the second amendment.
That being said, from a technical standpoint a nuclear weapon is an “arm” as defined by the 2nd amendment.
strict scrutiny is the correct standard - and SCOTUS needs to realize that adopting any other standard will let the government’s nose under the tent farther than it already is wrt the 1st, 4th, and 5th amendments...
Exactly. Are they putting America on the road to gun restriction?
Where in the Second Amendment do you see the word "firearm"? Nuclear weapons are commonly referred to as arms, as in a "nuclear-armed Iran".
sorry.......guess i’l have to go out and buy me one now.....
Let me know what kind of a price you find; I'm in the market myself.
“Actually, it was the unwillingness of the conservative base to compromise that gave us those fine gentlemen.
How do you think Miers would have voted?”
You bring up a great point. However, a liberal like Gore or Kerry would not have been beholden to the conservative base. They would have been beholden to the liberal base which would have made them nominate as liberal a judge as possible. We have sway over Bush. We have no sway over a Kerry or Gore.
BTW, in answer to your question, Harriet would have consulted with George Bush first to see how he wanted her to vote... : )
I’m sure nobody here even remotely thinks Bush has EVER been one to stand up for the Constitution concerning the 2nd Ammendment. He always said that he would reinstate the AWB if it ever came across his desk!!!
So your point is that since nuclear arms should be restricted then all arms should be restricted. Or are you just being sarcastic for the heck of it?
“How about seeing them legally allowed to own cars, knives, gasoline, matches and baseball-bats?”
The Fifth amendment says that no one shall be deprived of life, liberty or property without due process of law. This means by implication that these things (life, liberty and property) can be taken away by due process of law. That’s why the death penalty is constitutional and why paying fines and jail time are constitutional. It is also why you can be denied other liberties (such as owning a gun or voting) by due process of law.
It is completely constitutional to say that a person will be deprived of certain liberties that other people enjoy because they have been convicted of a crime in a court of law.
I’m willing to say that it’s okay to take these liberties away from felons and certain liberties given back only by a review board. Owning a gun should be one of them.
When we as 2A supporters do not sound reasonable (like supporting a convicted murderer getting his gun rights back upon leaving jail) how can we make sound arguments (such as owning fully auto weapons or allowing concealed carry) to the public?
Muskets yes. Cannon yes. Those that could afford cannon had cannon. Some even had fully armed warships and were granted letters of marque and reprisal.
The amendment states “well regulated militia”, “not well armed militia”.
Back then well regulated meant well functioning. They did not want citizens showing up for militia duty with unworkable arms.
And it is not a bill of needs or wants it is a bill of RIGHTS.
just being sarcastic in response to the sheer stupidity of the author of the article..... :)
like i have always said, in any situation there are 3 types of action to action to take, positive, legal and lever...first is positive action, talk to the people and try to work it out...if that fails, then there is legal action...get a cop, attorney, judge or work at the ballot box to get it handled...if that fails, then there is lever action on the old 30.30.......
You’re just wrong on this. Most of the artillery used by the Continental Army during the Revolution was loaned to it by private owners and was returned to them after the cessation of hostilities. And the term is “well-regulated militia.” “Militia” was defined by Jefferson as all free-born males in the population between the ages of 15 and 60 (as I recall). “Well-regulated” was a generally understood term that meant knowledgeable and skilled in the use of whatever was appropriate to the “well-regulatedness.” In this case, it would mean knowing how to use firearms properly and being able to hit what you fire at.
My real question is “If we can’t trust them with guns, how can we trust them with knives, etc?”
If we can’t trust them with guns, they probably should still be in the Graybar Hotel.
“My real question is If we cant trust them with guns, how can we trust them with knives, etc?
If we cant trust them with guns, they probably should still be in the Graybar Hotel.”
I’m not sure if this was supposed to be posted to me. I did not write the above post about trusing them with guns how can we trust them with knives, etc
I wrote it in response to your post 41, discussing the process by which rights are legitimately abridged.
My intent was to remark on the anomaly that we don’t “trust” released felons with guns, but we do “trust” them with knives.
The DC Gun Ban
March 12, 2007
Last Friday a federal appeals court in Washington DC issued a ruling that hopefully will result in the restoration of 2nd Amendment rights in the nation’s capital. It appears the Court rejected the District of Columbia ‘s nonsensical argument that the 2nd Amendment confers only a “collective right,” something gun control advocates have asserted for years.
Of course we should not have too much faith in our federal courts to protect gun rights, considering they routinely rubber stamp egregious violations of the 1 st, 4th, and 5th Amendments, and allow Congress to legislate wildly outside the bounds of its enumerated powers. Furthermore, the DC case will be appealed to the Supreme Court with no guarantees. But it is very important nonetheless for a federal court only one step below the highest court in the land to recognize that gun rights adhere to the American people, not to government-sanctioned groups. Rights, by definition, are individual. “Group rights” is an oxymoron.
Can anyone seriously contend that the Founders, who had just expelled their British rulers mostly by use of light arms, did not want the individual farmer, blacksmith, or merchant to be armed? Those individuals would have been killed or imprisoned by the King’s soldiers if they had relied on a federal armed force to protect them.
In the 1700s, militias were local groups made up of ordinary citizens. They were not under federal control! As a practical matter, many of them were barely under the control of colonial or state authorities. When the 2nd Amendment speaks of a “well-regulated militia,” it means local groups of individuals operating to protect their own families, homes, and communities. They regulated themselves because it was necessary and in their own interest to do so.
The Founders themselves wrote in the Federalist papers about the need for individuals to be armed. In fact, James Madison argued in Federalist paper 46 that common citizens should be armed to guard against the threat posed by the newly proposed standing federal army.
Today, gun control makes people demonstrably less safe— as any honest examination of criminal statistics reveals. In his book “More Guns, Less Crime,” scholar John Lott demolishes the myth that gun control reduces crime. On the contrary, Lott shows that cities with strict gun control—like Washington DC—experience higher rates of murder and violent crime. It is no coincidence that violent crime flourishes in the nation’s capital, where the individual’s right to defend himself has been most severely curtailed.
Understand that residents of DC can be convicted of a felony and put in prison simply for having a gun in their home, even if they live in a very dangerous neighborhood. The DC gun ban is no joke, and the legal challenges to the ban are not simply academic exercises. People’s lives and safety are at stake.
Gun control historically serves as a gateway to tyranny. Tyrants from Hitler to Mao to Stalin have sought to disarm their own citizens, for the simple reason that unarmed people are easier to control. Our Founders, having just expelled the British army, knew that the right to bear arms serves as the guardian of every other right. This is the principle so often ignored by both sides in the gun control debate. Only armed citizens can resist tyrannical government.
Congressman Ron Paul
“My intent was to remark on the anomaly that we dont trust released felons with guns, but we do trust them with knives.”
Gotcha, I guess it is strange but then where would it end. Baseball bats? Box cutters? Almost anything could be fashioned into a weapon. I feel that private ownership of a firearm is a civil right enumerated by the 2A. I believe that the 5th and 14th gives the government the power to take away those enumerated rights from people convicted of crimes. That is why I personally believe that after being convicted of a serious crime you should not be guaranteed to get all of your rights back.
The government has the authority to protect all of our civil rights. When someone has been convicted of a serious felony such as murder they forfiet some of their civil rights and it is the government’s duty to try to protect our civil liberties (such as life) from these people as much as possible.