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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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To: DuncanWaring

“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?


41 posted on 01/14/2008 9:20:45 AM PST by Old Teufel Hunden
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To: OCCASparky

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.


42 posted on 01/14/2008 9:21:38 AM PST by smoketree (the insanity, the lunacy these days.)
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To: smoketree

just being sarcastic in response to the sheer stupidity of the author of the article..... :)


43 posted on 01/14/2008 9:22:18 AM PST by joe fonebone (When in danger, when in doubt, run in circles, scream and shout)
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To: OCCASparky

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.......


44 posted on 01/14/2008 9:25:17 AM PST by joe fonebone (When in danger, when in doubt, run in circles, scream and shout)
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To: OCCASparky

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.


45 posted on 01/14/2008 9:27:36 AM PST by Doug Loss
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To: Old Teufel Hunden

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.


46 posted on 01/14/2008 9:34:46 AM PST by DuncanWaring (The Lord uses the good ones; the bad ones use the Lord.)
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To: DuncanWaring

“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.”

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


47 posted on 01/14/2008 9:45:16 AM PST by Old Teufel Hunden
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To: Old Teufel Hunden

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.


48 posted on 01/14/2008 9:57:29 AM PST by DuncanWaring (The Lord uses the good ones; the bad ones use the Lord.)
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To: jdm

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


49 posted on 01/14/2008 10:03:39 AM PST by KDD (A nod is as good as a wink to a blind horse)
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To: DuncanWaring

“My intent was to remark on the anomaly that we don’t “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.


50 posted on 01/14/2008 10:08:13 AM PST by Old Teufel Hunden
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To: KDD

I agree with a lot of what Ron Paul says about domestic issues. I only wish he had sane and sensible foreign policy beliefs. Then I could support him.

He brings up a good point in this article about how militias were not controlled by governments at the time that this amendment was written. Unlike today when liberals want to say that the state militia is the militia referred to in the 2A.


51 posted on 01/14/2008 10:12:04 AM PST by Old Teufel Hunden
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To: JoeFromSidney; hiredhand; Travis McGee; Lurker; Joe Brower

Excellent post JFS !


52 posted on 01/14/2008 10:15:23 AM PST by Squantos (Be polite. Be professional. But, have a plan to kill everyone you meet. ©)
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To: OCCASparky

What part of “arms” and “shall not be infringed” are you confused about?

“Arms” were described by a Founding Father as “ALL the terrible implements of the soldier”.

“Shall not be infringed” should be pretty clear.

Crew-served arms were not uncommon and not absurd for private ownership.

The Founding Fathers intended that the aggregate of common citizens should be self-armed to the point of being entirely effective - and that means some people (pooling funds or just rich) would acquire crew-served arms on their own.

No, sir, there is no limit on what the average citizen needs or wants for defense from any viable threat - save only those arms which, inherently, threaten far more innocents than enemies (to wit: WMDs).

There’s nothing magic about machineguns. And yes, you can own a howitzer TODAY if you have the money and can find a seller (or make one yourself), plus a little paperwork.


53 posted on 01/14/2008 10:25:10 AM PST by ctdonath2 (George Bush wept for those who suffer. Hillary Clinton wept for herself.)
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To: KDD; Allegra
Oh that nutty Ron Paul.....

L

54 posted on 01/14/2008 10:34:11 AM PST by Lurker (Pimping my blog: http://lurkerslair-lurker.blogspot.com/)
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To: harpseal; TexasCowboy; AAABEST; Travis McGee; Squantos; Shooter 2.5; wku man; SLB; ...
Otra vez...

"If the price I must pay for my freedoms is to acknowledge that the government was granted the power to infringe on them, then I am not free." -- Pol Anderson

Click the Gadsden flag for pro-gun resources!

55 posted on 01/14/2008 10:38:18 AM PST by Joe Brower (Sheep have three speeds: "graze", "stampede" and "cower".)
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To: OCCASparky
  1. Soap box
  2. Ballot Box
  3. Jury Box
  4. Cartridge Box

For those not keeping score on where we are at on the "Box" count. This IS the chance we have all been waiting for. If the system screws us here, there is only one recourse left that will be in any way effective...

56 posted on 01/14/2008 10:46:36 AM PST by Dead Corpse (What would a free man do?)
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To: davisfh

Show me where reasonable restriction is in the 2nd Amendment.

Obviously someone doesn’t understand “shall not be infringed” It isn’t difficult like “depends on what the meaning of is is.”

freaking idiots, wanna bet this doesn’t help us retake Congress or hold on to the Whitehouse?

Mike


57 posted on 01/14/2008 11:00:05 AM PST by BCR #226 (The BS stops when the hammer drops.)
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To: jdm
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.

Right on! Especially since felons have such a stellar track record of being law-abiding, anyways!

Government solution to this dilemma? Eventually make everyone a felon, one little crime at a time.

58 posted on 01/14/2008 11:05:25 AM PST by xrp (RON PAUL! To HELL with neo-cons!)
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To: KDD

If you agree with Ron Paul, you’re a traitor who hates Jews, errr, wait...


59 posted on 01/14/2008 11:21:18 AM PST by jmc813 (Don't screw this up, vote for Thompson.)
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To: BCR #226
"Show me where reasonable restriction is in the 2nd Amendment."

You might be responding to someone who responded to my original reply. All I said was "Define reasonable."

60 posted on 01/14/2008 11:21:48 AM PST by davisfh
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