Bush Administration’s Amicus Brief in D.C. Gun Case

Patterico's Pontifications ^ | Jan. 14, 2008

[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.

[B4Ranch]

>if one owns a rifle in DC it must be broken down and rendered unusable.<

The City fathers recognize that the average person who just mortgaged their home to pay their property taxes is liable to flip out when she/he sees a city politician having lunch or dinner at a fine restaurant on the public tab. They don’t want to be stuck with writing all the reports and going to the investigation committee meetings. You can understand that, can’t you?

[KDD]

More insanity!!!

Assault Weapons and Assaults on the Constitution

The Bush administration recently surprised and angered many pro-gun conservatives by announcing its support for an assault weapons ban passed in 1994. The law contained a ten-year sunset provision, and is set to expire in 2004 unless reauthorized by Congress. A spokesman for the administration stated flatly that the President “supports the current law, and he supports reauthorization of the current law.”

Perhaps this should have surprised no one. President Bush already stated his support for the ban during the 2000 campaign. The irony is that he did so even as the Democratic Party was abandoning gun control as a losing issue. In fact, many attribute Gore’s loss to his lack of support among gun owners. The events of September 11th also dealt a serious blow to the gun control movement, as millions of Americans realized they could not rely on government to protect them against terrorism. Gun sales have predictably increased.

Given this trend in the American electorate away from support for gun control, the administration’s position may well cost votes in 2004. The mistaken political premise is that while Republicans generally support gun rights, so-called “assault weapons” are different and must be controlled. The administration clearly believes that moderate voters from both parties support the ban. “Who could possibly need such weapons?” is the standard question posed by gun control advocates.

Few people asking that question, however, know much about the banned weapons or the Second amendment itself. The law in question bans many very ordinary types of rifles and ammunition, while limiting magazine capacity for both rifles and pistols that are still legal. Many of the vilified “assault rifles” outlawed by the ban are in fact sporting rifles that are no longer available to hunters and outdoorsmen. Of course true military-style automatic rifles remain widely available to criminals on the black market. So practically speaking, the assault weapons ban does nothing to make us safer.

More importantly, however, the debate about certain types of weapons ignores the fundamental purpose of the Second amendment. The Second amendment is not about hunting deer or keeping a pistol in your nightstand. It is not about protecting oneself against common criminals. It is about preventing tyranny. The Founders knew that unarmed citizens would never be able to overthrow a tyrannical government as they did. They envisioned government as a servant, not a master, of the American people. The muskets they used against the British Army were the assault rifles of the time. It is practical, rather than alarmist, to understand that unarmed citizens cannot be secure in their freedoms. It’s convenient for gun banners to dismiss this argument by saying “That could never happen here, this is America”- but history shows that only vigilant people can keep government under control. By banning certain weapons today, we may plant the seeds for tyranny to flourish ten, thirty, or fifty years from now.

Tortured interpretations of the Second amendment cannot change the fact that both the letter of the amendment itself and the legislative history conclusively show that the Founders intended ordinary citizens to be armed. The notion that the Second amendment confers rights only upon organized state-run militias is preposterous; the amendment is meaningless unless it protects the gun rights of individuals. Georgetown University professor Robert Levy recently offered this simple explanation:

“Suppose the Second amendment said ‘A well-educated electorate being necessary for self-governance in a free state, the right of the people to keep and read books shall not be infringed.’ Is there anyone who would suggest that means only registered voters have a right to read?”

[Old Teufel Hunden]

Semper Fi brother,

I think that the DC city fathers need to watch that clip on youtube of Suzanna Haupp where she is testifying before Congress and tells them that the second amendment is in place to protect us from them. No truer words have ever been spoken...

[KDD]

HON. RON PAUL OF TEXAS
IN THE HOUSE OF REPRESENTATIVES
January 9, 2003

Restoring the Second Amendment

Mr. Speaker, I rise to restore the right the founding fathers saw as the guarantee of every other right by introducing the Second Amendment Protection Act. This legislation reverses the steady erosion of the right to keep and bear arms by repealing unconstitutional laws that allow power-hungry federal bureaucrats to restrict the rights of law-abiding gun owners.

Specifically, my legislation repeals the five-day waiting period and the “instant” background check, which enables the federal government to compile a database of every gun owner in America. My legislation also repeals the misnamed ban on “semi-automatic” weapons, which bans entire class of firearms for no conceivable reason beside the desire of demagogic politicians to appear tough on crime. Finally, my bill amends the Gun Control Act of 1968 by deleting the “sporting purposes” test, which allows the Treasury Secretary to infringe on second amendment rights by classifying a firearm (handgun, rifle, shotgun) as a “destructive device” simply because the Secretary believes the gun to be “non-sporting.”

Thomas Jefferson said “The constitutions of most of our States assert that all power is inherent in the people; ...that it is their right and duty to be at all times armed.” Jefferson, and all of the Founders, would be horrified by the proliferation of unconstitutional legislation that prevents law-abiding Americans form exercising their right and duty to keep and bear arms. I hope my colleagues will join me in upholding the Founders’ vision for a free society by cosponsoring the Second Amendment Restoration Act.

Where was everyone else on this Bill?

[Repeal 16-17]

Define reasonable.

Whatever the government thinks is reasonable. Let's hear for circular reasoning!

[azhenfud]

“Reasonable” was nowhere near what Dense City inflicted upon its citizenry nor was what Guiliani imposed upon New Yankers to be considered “reasonable”.

When imposed restrictions take away the ability for otherwise lawful citizens to acquire the same firepower in arms as the police state, the police state has then exceeded its authority granted it by the governed and the governed then become subjects to the state.

JMO...

[GladesGuru]

“Problem is, the Second Amendment states “well-armed militia”, not firearms, although I rather doubt you’d have a guy in a tricorner hat back in 1790 with a few cannon in his garage.”

As a matter of well recorded fact, large land owners often owned cannon which they kept to protect their property from Indians.

Those cannon were the equivalent of today’s “crew served weapons” like cannon and howitzers.

Might I also note that the ownership of tanks is legal, including the cannon and machine guns. Of course, the gubment does collect taxes on such play toys. Think $200 for each machine gun and $400 for the cannon.

Hope some BATF idiot child doesn’t try to tax each shell for the cannon.

[from occupied ga]

Hope some BATF idiot child doesn’t try to tax each shell for the cannon.

If you have explosive shells I believe this is the case, but for solid rounds it isn't.

[William Tell]

From the article: "I don’t think any of us thinks the absolutism goes this far. "

Thank goodness the Framers of the Constitution included the "automatic adjusment provision". Otherwise, when technologies make changes necessary to the Constitution, we might have to AMEND IT.

The Second Amendment is probably as close to an absolute right as will be found anywhere.

Too bad the Founders didn't say, "Congress shall make no law..." in the Second Amendment. This leaves little to consider. If they can't make a law, then it simply doesn't matter how reasonable the law is. The law would be unConstitutional, no matter how reasonable, healthy, inspired, or appreciated. Words are supposed to have meaning.

I see no reason to suspect that "shall not be infringed" was intended to be any less absolute than "shall make no law".

[William Tell]

Old Teufel Hunden said: "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?"

No doubt whatever. On another thread I posted that the pro-gun community will need to erect a monument to GW Bush if this case is decided properly. We will owe it all to Bush's appointments to the Supreme Court.

Somebody should also look at who appointed the two judges who wrote the majority opinion in Parker. There may be more credit to pass around.

[El Gato]

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.

Strange then that it wasn't until 1938 that Congress passed such a law, and that didn't forbid possession, but rather forbid the newly required FFL dealers not sell to them and that they not receive any firearm that had moved in interstate commerce. Why didn't the founders or subsequent generations of Congress pass such a law? You think they had no criminals, then or in the ensuing 136 years?

BTW, that 1938 law, the Federal Firearms Act, the first substantive federal gun control law, was shepherded through Congress by the NRA as a "compromise" to stave off handgun registration, which the Roosevelt Justice Department was forever trying to get through Congress. (Eventually if you keep giving up a half a loaf, you soon have not enough bread to see with a microscope).

[El Gato]

However, the restriction on machine guns is, IMO, unconstitutional, despite being upheld over the years since it’s creation in the late 1930’s.

It's only been upheld in the lower courts, the Supreme Court has never ruled on it, not in a Second Amendment context at least. Of course a few lower federal courts have overturned it, especially after the 1986 total ban, which removed the "taxation" fig leaf.

[El Gato]

Problem is, the Second Amendment states "well-armed militia", not firearms, although I rather doubt you'd have a guy in a tricorner hat back in 1790 with a few cannon in his garage.

Muskets yes, howitzers no.

I don't doubt it, I know they had them. While they didn't have garages, they had ships, and some of those privately armed ships mounted cannon. When issued a letter of Marque, they became lawful Privateers, which were used against the British in both the Revolution and the War of 1812.

It was three privately owned cannon that the British were after that April 19th of 1775. They didn't find them BTW, but hiding them took them off their carriages (which were found and burnt) and out of action, otherwise probably not a single Regular would have made it back to Boston. It was a similar cannon brought up later by the Regulars that prevented the militia from concentrating against the Regulars on the Battle Road back down to Boston.

We have a United States, rather than A British North American Colony, in no small part because there were privately owned cannon.

There was an attempt to confiscate a locally owned cannon involved in the Texas Revolution of 1835 as well. A representation of it was put on a flag.

[El Gato]

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.

The key is "due process". The legislature can't mandate it for all cases. It can be a recommended sentence, or an optional one. It could even be manadatory, at least in a federal court, or a state court if the requirement is part of state law. But it must be an explicit part of an individual sentence or adjudication. A bunch of politicians voting on a law is not due process.

Originally the '38 law exempted most non-violent felonies from the prohibition, but the '68 "improvements" did not.

[William Tell]

ScottfromNJ said: That being said, from a technical standpoint a nuclear weapon is an “arm” as defined by the 2nd amendment."

Absolutely. And the keeping of it shall not be infringed. It's entirely conceivable that the Constitution may need to be modified from time to time, as it has been over two dozen times. The Constitution does not automatically become whatever people think that it should become.

At the time of our nation's founding, the keeping and bearing of ALL ARMS was to be protected from infringement.

It took a Constitutional amendment to restrict anybody from being President for more than two full terms. Just because this idea was so reasonable that a super-majority of Congress and a super-majority of state legislatures thought it should be enforced, the Constitution did not automatically modify itself to achieve that end.

[FreeInWV]

“Harriet would have consulted with George Bush first to see how he wanted her to vote.”

You betcha. And he is the guy who begged congress to put an AWB renewal on his desk. He is the guy who hired a couple thousand DOJ lawyers to support the BATF. After his term ends, who knows how she would vote. That is the problem with hiring cronies without constitutional track records.

The issue becomes more complicated in this election. The democrats fear the RKBA crowd due to beating they have taken in past elections. They also have had their numbers diluted by the bumper crop of blue dogs. It would be risky for them to swerve hard left and embrace gun control. The constituents would hate it and future elections would be at risk.

If however Giuliani gets elected, it would be over the loud objections of the RKBA crowd. He would bear animosity toward them and consider them irrelevant. His administration would be very anti-gun. McCain would have the same issues to a lesser degree.

[William Tell]

joe fonebone said: ".......guess i’l have to go out and buy me one now.....[ a nuclear arm]"

I suggest that you do your shopping with North Korea, Iran, or some of the ex-Soviet states. I have heard that Libya is no longer in the business. If you are of the proper religious persuasion, you might also try Pakistan.

You will need to take plenty of money and/or a utilization plan of which the seller approves.

[William Tell]

Old Teufel Hunden said: "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?"

What is "reasonable" about pretending that a law prohibiting possession of arms by felons will prevent the commission of other criminal acts by felons?

Perhaps you could point out a single case of a felony prevented by prohibiting keeping and bearing arms by felons. Just one.

[William Tell]

FreeInWV said: "And he [Bush] is the guy who begged congress to put an AWB renewal on his desk. "

That's not my recollection of it. Bush said very passively that he would sign one if it reached his desk. I never heard him encourage ANYBODY to pass one, despite the fact that Congressional leadership at the time stated that there was no chance whatever that such a bill would see the light of day.

If you can document Bush asking for such a bill, I would like to hear of it.

[El Gato]

Where was everyone else on this Bill?

While not the same bill, as I recall the repeal of the Ugly Gun Ban passed in the House, as promised by Chairman Newt, but failed in the House of Lords, er the US Senate.

The 2003 version of the Second Amendment Protection Act had 4 cosponsors in the House. It went to the judiciary committee and the Homeland Security subcommittee, and died.

However HR 125, a bill To repeal the ban on semiautomatic assault weapons and the ban on large capacity ammunition feeding devices, passed the House of Representatives on 3/22/96 as promised by Chairman Newt in the Contract with America. It was sponsored by Rep. Chapman (TX-1_) and had 76 cosponsors. It went on to die in the Judiciary Committe of the House of Lords, aka the US Senate, without reaching a floor vote.

That passage was one reason Mr. Newt HAD TO GO. (Interestingly Rep. John Murtha was one of those co-sponsers!)