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Bush Administrationís Amicus Brief in D.C. Gun Case
Patterico's Pontifications ^ | Jan. 14, 2008

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 respondent’s Second Amendment claim. Like other provisions of the Constitution that secure individual rights, the Second Amendment’s 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 Amendment’s protections. Nothing in the Second Amendment properly understood—and certainly no principle necessary to decide this case—calls for invalidation of the numerous federal laws regulating firearms.

Allah seems to treat this as though it’s weakness on the part of the Administration — although it’s hard to know whether he’s 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 don’t want felons carrying firearms, and I don’t 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 guy’s briefcase, they should wave him though — right? Second Amendment, baby!

I don’t think any of us thinks the absolutism goes this far. So yes, there will have to be “balancing.” That’s okay — we do it for the First Amendment all the time, and that is also a cherished freedom and individual right. For example, you can’t libel people without consequence. All rights have some limits. What those limits are is the real question.


TOPICS: Constitution/Conservatism; Culture/Society; Government; US: District of Columbia
KEYWORDS: banglist; bush; bushadministration; dc; doj; heller; parker; scotus
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1 posted on 01/14/2008 7:32:43 AM PST by jdm
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To: jdm
"The Administration agrees that gun ownership is an individual right, but says it is subject to reasonable restrictions."

Define reasonable.

2 posted on 01/14/2008 7:35:10 AM PST by davisfh
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To: jdm

when did a nuclear weapon become a firearm?


3 posted on 01/14/2008 7:37:11 AM PST by joe fonebone (When in danger, when in doubt, run in circles, scream and shout)
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To: jdm
We shall see. When you lie down with dogs like the DA’s from Washington DC, Chicago, New York, San Fran. I question where this limitation starts and ends but it’s bound to produce fleas.
4 posted on 01/14/2008 7:40:47 AM PST by Recon Dad (Marine Spec Ops Dad)
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To: joe fonebone

I think that was a bit of a hyperbole on the author’s part.


5 posted on 01/14/2008 7:41:03 AM PST by jdm (A Hunter Thompson ticket would be suicide.)
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To: jdm

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.


6 posted on 01/14/2008 7:42:14 AM PST by Atlas Sneezed ("We do have tough gun laws in Massachusetts; I support them, I won't chip away at them" -Mitt Romney)
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To: jdm

Perfect example of why you don’t compromise to get “electable.”


7 posted on 01/14/2008 7:42:30 AM PST by mysterio
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To: jdm

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.


8 posted on 01/14/2008 7:42:59 AM PST by gridlock (300 Million Americans will not be elected President in 2008. Hillary Clinton will be one of them.)
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To: davisfh
the Second Amendment, properly construed

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?"

9 posted on 01/14/2008 7:47:44 AM PST by Thommas (The snout of the camel is in the tent..)
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To: jdm

“such as the rule that convicted felons may be denied firearms because those persons have never been understood to be within the Amendment’s 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.


10 posted on 01/14/2008 7:53:31 AM PST by ScottfromNJ
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To: Beelzebubba
In the decades before the ban, registered machine guns in private hands were responsible for ZERO homicides

Please. no facts. We're dealing with feeeeeeelings here.

11 posted on 01/14/2008 7:54:59 AM PST by Puppage (You may disagree with what I have to say, but I shall defend to your death my right to say it)
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To: jdm

“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!!


12 posted on 01/14/2008 7:58:33 AM PST by Old Teufel Hunden
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To: Old Teufel Hunden

Another unreasonable restriction is to ban a whole category of arms, like modern machine guns, and so-called assault weapons.


13 posted on 01/14/2008 8:01:23 AM PST by Atlas Sneezed ("We do have tough gun laws in Massachusetts; I support them, I won't chip away at them" -Mitt Romney)
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To: jdm

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.


14 posted on 01/14/2008 8:01:54 AM PST by Hazcat (We won an immigration BATTLE, the WAR is not over. Be ever vigilant.)
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To: mysterio

“Perfect example of why you don’t 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...


15 posted on 01/14/2008 8:03:15 AM PST by Old Teufel Hunden
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To: Hazcat

“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.


16 posted on 01/14/2008 8:05:44 AM PST by Old Teufel Hunden
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To: jdm
I only agree that felons, those that can actually be proven to be mentally unstable, NON-US citizens, should not have guns. Other than that, THE GOVERNMENT DOES NOT HAVE ANY RIGHTS WHAT SO EVER to deny us our God given right and the Rights given to us by the Founders in the Bill of Rights under the 2d Amendment. We have a RIGHT to possess, carry and USE a gun. I am sick of socialist, liberals, communists, dimocrats, envirowacksos, and BUSH telling us we don’t.
17 posted on 01/14/2008 8:09:36 AM PST by RetiredArmy (Better prepare, come Nov 08, we have a Marxist Commissar President and Marxist Congress.)
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To: Old Teufel Hunden

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.


18 posted on 01/14/2008 8:10:08 AM PST by PubliusMM (RKBA; a matter of fact, not opinion...)
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To: jdm
I could possibly go along with that until I hit this:

"Nothing in the Second Amendment properly understood—and certainly no principle necessary to decide this case—calls for invalidation of the numerous federal laws regulating firearms."

I must call BS on that.

jw

19 posted on 01/14/2008 8:16:03 AM PST by JWinNC (www.anailinhisplace.net)
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To: Old Teufel Hunden
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.

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.

20 posted on 01/14/2008 8:17:31 AM PST by Hazcat (We won an immigration BATTLE, the WAR is not over. Be ever vigilant.)
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