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.