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Candidates Must Trump Justice Department in DC Gun Case
Townhall ^ | 1-15-08 | Sandy Froman

Posted on 01/15/2008 11:52:32 AM PST by SJackson

The Bush administration missed a golden opportunity to stand up for the Second Amendment when it filed a Supreme Court brief that only gives lukewarm support to gun rights, asking the Court to send the case back down to apply a lesser standard of legal protection to the Second Amendment. Presidential candidates should tell us where they stand on the government’s position.

The Office of the Solicitor General (OSG) is the Justice Department branch representing the federal government in the Supreme Court. Its briefs carry great weight as the official position of the United States. OSG filed a brief in DC v. Heller, the case regarding the DC gun ban (previously titled Parker v. DC).

This brief reaffirms the Bush administration position that the Second Amendment guarantees an individual right applying to private citizens. It says that right should be subject to what is called “heightened scrutiny.” And it makes it clear that the DC gun ban should be abolished.

But the brief filed by OSG is nonetheless disappointing. Though calling for heightened scrutiny, it says the Court should apply “intermediate scrutiny.” While intermediate scrutiny may be appropriate in some situations, it’s not a strong enough standard to apply to a law that says a person cannot have a handgun in their own home for self-defense, as the DC gun ban does. Such a law should be categorically unconstitutional, which is what the DC Circuit Court held. Such a law should be subject to the highest level of scrutiny, called “strict scrutiny,” to make sure that the law is narrowly tailored to achieve the desired result.

Also—disturbingly—though OSG affirms that the Second Amendment secures an individual right, it does not call it a “fundamental right”—which is very important for legal reasons—and asks the Court to deny it the level of protection of a fundamental right.

This brief is a mixed bag. Some say it takes the side of DC. Not so. Asking the Supreme Court to reverse the DC Circuit Court’s decision would take the side of DC, and OSG clearly does not do that.

But it does not ask the Court to affirm the DC Circuit Court judgment in favor of Heller, either. Instead, it asks the Court to vacate (or throw out) the lower court opinion, and send the case back for a rehearing applying a lesser standard of review to the rights embodied in the Second Amendment than are typically applied to other amendments in the Bill of Rights, like the First and Fourth Amendments.

Each presidential candidate must speak out on this brief. The Justice Department has not gone far enough to support the fundamental rights guaranteed under the Second Amendment, and so those who aspire to lead our nation must step up and call on the Supreme Court to affirm the judgment of the DC Circuit striking down the ban.

This is a chance for all the GOP candidates to show what they’re made of, distinguishing themselves from the Democrats. With Bill Richardson out of the race, the remaining Democrat candidates all have an “F” rating from the NRA.

Mike Huckabee and Fred Thompson have outstanding records supporting the Second Amendment. Here’s their chance to make that an issue in the campaign, reminding gun owners of their unwavering support for our civil rights.

John McCain has had a rough time with gun owners, mostly over campaign finance reform and efforts to federally regulate private sales at gun shows (dealer sales are already federally regulated.) But for many years before that he had a solid record on the Second Amendment, and he’s stepped back up to the plate in recent years, opposing reauthorization of the Clinton Gun Ban, becoming a cosponsor of the tort reform bill to end junk lawsuits against gun makers, and cosponsoring federal legislation to repeal the DC gun ban. Speaking out on this issue would be welcomed by gun owners.

Rudy Giuliani should take every chance he can get to impress gun owners. After years of unfriendly policies and actions in NYC, the former mayor has to make the case that he’s worlds apart from Hillary and Obama on the Second Amendment. To his credit, Giuliani has said that the DC Circuit was correct in this case, that the Supreme Court should affirm that judgment, and that the DC gun ban is unconstitutional. He needs to make that a theme in his campaign. As the legal heavyweight in the GOP field, he should make the most of this opportunity.

Mitt Romney has the opportunity to gain back the ground he lost with gun owners last month when he endorsed the Clinton Gun Ban and the Brady Bill on Tim Russert’s Meet the Press. Unless he wants to lose Second Amendment supporters by the droves, he had better come out on the right side of this OSG brief. In fact, Romney should retract his ill-advised endorsement of the cornerstone legislation of the Clinton gun control agenda.

All of these Republican candidates should speak out on his issue, and challenge their Democrat opponents to do the same.

The OSG brief calls on the Court to have the DC Circuit decide the case over again using a lesser standard of protection for the Second Amendment. That would be a defeat for gun owners. And such a rehearing would delay a Supreme Court pronouncement on the Second Amendment for at least a year. With several Supreme Court vacancies likely during the next president’s term, it’s becoming all too clear that the Second Amendment is at stake in this election.


TOPICS: Editorial; Government
KEYWORDS: banglist; dc; heller; parker

1 posted on 01/15/2008 11:52:34 AM PST by SJackson
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To: SJackson

Bush’s thinking on this is beyond me, and his stance on this issue will not help the GOP in November.

Not at all - It is outright eerie.


2 posted on 01/15/2008 12:02:45 PM PST by bill1952 (The right to buy weapons is the right to be free)
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To: bill1952

I don’t think it will hurt the GOP, the candidates will have to stand on their own. I agree his stance is mystifying, as have been many of his actions.


3 posted on 01/15/2008 12:05:18 PM PST by SJackson (If 45 million children had lived, they'd be defending America, filling jobs, paying SS-Z. Miller)
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To: SJackson
My point is that the President still has every opportunity to do things to help in 08 and there is no way that this helps any of us.

Staying away, or apart from, the race because of perceived voter displeasure will not help the eventual candidate any more than Clinton’s absence helped Gore.

4 posted on 01/15/2008 12:09:09 PM PST by bill1952 (The right to buy weapons is the right to be free)
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To: SJackson

If the so called candidates continue to ignore gun owners,
they will pay the price at voting time.

Fred is the only one courting the gun owners.

Thats why he will win SC.


5 posted on 01/15/2008 12:14:23 PM PST by kennyboy509 (Ha! I kill me!)
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To: SJackson

The silence is
http://www.mydamnchannel.com/channel.aspx?episode=323


6 posted on 01/15/2008 12:16:01 PM PST by Tigen (Illegals=cheap votes for libs=cheap labor for republicans and this can not be refuted!)
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To: harpseal; TexasCowboy; AAABEST; Travis McGee; Squantos; Shooter 2.5; wku man; SLB; ...
My take on this galling Brief from the DOJ is this: The FedGov, no matter what party is running the show, simply doesn't want to give up one inch of its enormous aggrandizement of power and authority, the Constitution be damned.

After all, to gradually grow in both size and ability is the natural tendency of government, is it not?

Click the Gadsden flag for pro-gun resources!

7 posted on 01/15/2008 12:19:12 PM PST by Joe Brower (Sheep have three speeds: "graze", "stampede" and "cower".)
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To: bill1952
My point is that the President still has every opportunity to do things to help in 08 and there is no way that this helps any of us.

You're right, that would be nice, but I don't see that as being on GWB's agenda. Even if he doesn't care, he should have supported the 2nd amendment as a fundamental right on the merits.

8 posted on 01/15/2008 12:21:05 PM PST by SJackson (If 45 million children had lived, they'd be defending America, filling jobs, paying SS-Z. Miller)
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To: SJackson

Good piece, thanks for posting. This is one of the main reasons I don’t think Huckabee wouldn’t be quite as bad as most freepers make him out to be.


9 posted on 01/15/2008 1:19:46 PM PST by jmc813 (Don't screw this up, vote for Thompson.)
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To: jmc813

The Huckster is surprisingly pro-gun. He’s a complete nutter on government socialist spending though. Have you seen his health care stuff? May as well make Hillary Care a GOP plank if we elect him.


10 posted on 01/15/2008 1:30:36 PM PST by Dead Corpse (What would a free man do?)
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To: bill1952
Also—disturbingly—though OSG affirms that the Second Amendment secures an individual right, it does not call it a “fundamental right”—which is very important for legal reasons—and asks the Court to deny it the level of protection of a fundamental right.

Which is patently absurd on its face. It is specifically mentioned in the Constitution, how can it be anything other than a fundamental right?

11 posted on 01/15/2008 1:37:55 PM PST by mvpel (Michael Pelletier)
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To: kennyboy509

Nothing would give me greater pleasure than Thompson coming in at least 2nd in SC, but I doubt he will make 3rd.


12 posted on 01/15/2008 1:52:00 PM PST by Mister Politics (www.misterpolitics.com)
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To: bill1952

“My point is that the President still has every opportunity to do things to help in 08”

You must not have heard about the Real ID Act’s (or as I call it, The Democrat Politician Full Employment Act), partial implementation on May 11.

As of May 11, if your State doesn’t agree to a national driver’s license, you will not be able to get onto an airplane or enter a Federal building without your passport. The resulting fury will guarantee no Republican can get elected to anything.

Put the 2nd Amendment position on top of the Real Id Act and what other interpretation can you get: The President is doing everything he can to get a Democrat elected to every office from President to Dog Catcher.


13 posted on 01/15/2008 1:56:21 PM PST by live+let_live
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To: Joe Brower

The GOP has been blowing smoke with all their talk about smaller, less intrusive government. They are at least as bad as the dims.


14 posted on 01/15/2008 2:31:50 PM PST by paul51 (11 September 2001 - Never forget)
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To: Joe Brower

“The natural progress of things is for liberty to yield and government to gain ground.”

Thomas Jefferson to Edward Carrington, 1788. ME 7:37

Anyone else think we’ve yielded more than enough??


15 posted on 01/15/2008 3:21:32 PM PST by Dick Bachert
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To: bill1952

He can’t get re-elected so now he doesn’t care what his numbers look like. He has an agenda and he doesn’t care who he tramples to accomplish it. We knew several years ago that his support for the 2nd Amendment was only superficial.

Now we see that he believes that the government can restrict your RKBA rights if it can dream up a good enough reason. And who decides what reason is good enough? Why, the government, of course!


16 posted on 01/15/2008 3:37:30 PM PST by Blood of Tyrants (G-d is not a Republican. But Satan is definitely a Democrat.)
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To: Mister Politics
Nothing would give me greater pleasure than Thompson coming in at least 2nd in SC, but I doubt he will make 3rd.

If Fred publicly calls on the President to withdraw this brief, then he'll score big points with voters. As an attorney, he can explain well why this brief is actually very anti-2nd Amendment.

Further, it is possible that it'll actually get done - I'm not sure that this was even on Bush's radar. It sounds suspiciously like some career gov't lawyer's way of screwing individual rights in a fait accompli. Bush might decide to withdraw the brief if he knows about it, comes under pressure from Republican candidates, and if the NRA actually emails its members and asks them to melt the White House phone lines. Of course, I'm not holding my breath - Bush isn't exactly a friend of the 2nd.

17 posted on 01/15/2008 3:47:44 PM PST by Ancesthntr (Iíve joined the Frederation.)
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To: SJackson

The candidates should speak out as if this were a modern-day Brown v BOE or Plessy v Ferguson.

The position taken by the Justice Department is that repulsive.


18 posted on 01/15/2008 5:25:16 PM PST by Abundy
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To: SJackson
Also—disturbingly—though OSG affirms that the Second Amendment secures an individual right, it does not call it a “fundamental right”—which is very important for legal reasons—and asks the Court to deny it the level of protection of a fundamental right.

Yep, fundamental rights generally get "incorporated" against state government infringement via the "due process" clause of the 14th amendment. Which is utter rubbish, the 14th's Privileges and Immunities Clause already did that for all of the rights protected against federal infringement by the Constitution, including the first 8 (or 9) amendments.

19 posted on 01/15/2008 5:26:23 PM PST by El Gato ("The Second Amendment is the RESET button of the United States Constitution." -- Doug McKay)
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To: Dick Bachert
Anyone else think we’ve yielded more than enough??

I'll bet even Claire thinks it's just about time.

20 posted on 01/15/2008 5:29:27 PM PST by El Gato ("The Second Amendment is the RESET button of the United States Constitution." -- Doug McKay)
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To: El Gato

How a clearly defined individual right isn’t a fundamental right I haven’t a clue, though I admit I haven’t a clue why the Bush Justice Dept. came down with this brief. Is he planning on running for Governor somewhere?


21 posted on 01/15/2008 5:30:00 PM PST by SJackson (If 45 million children had lived, they'd be defending America, filling jobs, paying SS-Z. Miller)
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To: Abundy
The candidates should speak out as if this were a modern-day Brown v BOE or Plessy v Ferguson. The position taken by the Justice Department is that repulsive.

Would be nice. While the decision rests with the Supremes, the brief is significant, and may have an impact. And is the direct responsibility of the President. Of course they won't, this will be over by the time the general election rolls around.

22 posted on 01/15/2008 5:31:41 PM PST by SJackson (If 45 million children had lived, they'd be defending America, filling jobs, paying SS-Z. Miller)
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To: Ancesthntr
I'm not sure that this was even on Bush's radar.

You could be right, but it's his responsibility. I won't belabor the number of issues that weren't on his radar.

23 posted on 01/15/2008 5:33:27 PM PST by SJackson (If 45 million children had lived, they'd be defending America, filling jobs, paying SS-Z. Miller)
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To: Blood of Tyrants
He can’t get re-elected so now he doesn’t care what his numbers look like. He has an agenda and he doesn’t care who he tramples to accomplish it. We knew several years ago that his support for the 2nd Amendment was only superficial.

But what's the upside here.

I understand his position changes on Israel. And Dubai Ports. And immigration, he was always an open borders guy. And Harriet Myers. And McCain Feingold, maybe, though that was a breach of his responsibility. No child left behind, medicare drugs, ok votes.

What's going on here?

24 posted on 01/15/2008 5:35:51 PM PST by SJackson (If 45 million children had lived, they'd be defending America, filling jobs, paying SS-Z. Miller)
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To: Ancesthntr
It sounds suspiciously like some career gov't lawyer's way of screwing individual rights

It seems to have been written by the BATFE. Their chief counsel's name is on it, all rest of the government lawyers, show as just being "Department of Justice", of which the BATFE is a part, but the rest are Deputy or Assistant Attorney Generals (IE. HQ types), other than Solicitor General who is in effect the lawyer for not just the Justice Department, but for the whole federal government.

Letting the BATFE write a brief on the meaning of the Second Amendment is definitely letting the coyote guard the chicken coop.

25 posted on 01/15/2008 5:36:03 PM PST by El Gato ("The Second Amendment is the RESET button of the United States Constitution." -- Doug McKay)
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To: Abundy
The candidates should speak out as if this were a modern-day Brown v BOE or Plessy v Ferguson.

Perhaps "Dred Scott" would be a more predictive analogy?

26 posted on 01/15/2008 5:37:44 PM PST by El Gato ("The Second Amendment is the RESET button of the United States Constitution." -- Doug McKay)
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To: SJackson
Is he planning on running for Governor somewhere?

Nah, Secretary General, usurping the slot from Billy Jeff.

27 posted on 01/15/2008 5:38:50 PM PST by El Gato ("The Second Amendment is the RESET button of the United States Constitution." -- Doug McKay)
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To: El Gato

Funny you mention that. I was thinking the other day that if he can’t be First Fellow, Bubba would probably have a ball in the Senate. Reinstitute an old tradition, party with Ted, show up when you want, and recapture a bit of power and pork.


28 posted on 01/15/2008 5:40:42 PM PST by SJackson (If 45 million children had lived, they'd be defending America, filling jobs, paying SS-Z. Miller)
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To: SJackson
As bad as this brief is, it’s not nearly so bad as the one filed by a bunch of ex DoJ “officials”, all Democrats, mostly from the “It’s OK to take sexual advantage of the interns” era, but at least one from the Kennedy/Johnson administration. That brief maintains that the second amendment protects the states’ right to arm their militias, which is the National Guard. Never mind that every rifle and bullet they have is owned not by the state, but by the US Army or Air Force, that is the federal government. Every one of their members is also a member of the US Army or US Air Force reserve. Been there done that.

They also maintain that the second is no bar to complete and total bans on firearms, by class or in toto, in the hands of ordinary citizens.

29 posted on 01/15/2008 6:00:07 PM PST by El Gato ("The Second Amendment is the RESET button of the United States Constitution." -- Doug McKay)
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To: SJackson

What many people are quietly stating here and there is that if SCOTUS trips up on the Heller case, we will see bloodshed, brief or no brief. This scares the hell out of me but it looks like a lot of Americans are just sick and tired of the crap that is happening. I’ve seen comments on “the soapbox hasn’t worked, the ballot box obviously isn’t working, time for the ammo box.” and others.

If these people are correct, I wonder how a civil war would effect the upcoming elections? If Bush is smart, he’ll get a clue and get the brief withdrawn and STFU. The presidential candidates really need to make comment on this issue or they will find a lack of voters this November.

As it stands now, we can only wait and see and pray that SCOTUS will stand head and shoulders above the rest of the Government by doing the right thing.

Mike


30 posted on 01/15/2008 6:45:03 PM PST by BCR #226 (The BS stops when the hammer drops.)
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To: SJackson

Face it, “compassionate conservative” is code for liberal.


31 posted on 01/15/2008 7:06:02 PM PST by Blood of Tyrants (G-d is not a Republican. But Satan is definitely a Democrat.)
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To: BCR #226
What many people are quietly stating here and there is that if SCOTUS trips up on the Heller case, we will see bloodshed, brief or no brief.

I don't see that at all, nor would I in any way be supportive.

32 posted on 01/15/2008 7:28:24 PM PST by SJackson (If 45 million children had lived, they'd be defending America, filling jobs, paying SS-Z. Miller)
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To: BCR #226
As it stands now, we can only wait and see and pray that SCOTUS will stand head and shoulders above the rest of the Government by doing the right thing.

A very thin reed that is, but Hope springs eternal. And we haven't seen the briefs of *our* side yet. That comes about February 4th.

33 posted on 01/15/2008 11:22:33 PM PST by El Gato ("The Second Amendment is the RESET button of the United States Constitution." -- Doug McKay)
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To: El Gato

To obvious...but you are correct.

the president should order the brief withdrawn and re-written.

hopefully SCOTUS will do the right thing, since the government’s position could be applied equally to other individual rights with frightening results

and if the underlying issue was not about guns you can be damn sure that all manner of subversive organizations like the media and the ACLU would be rioting over this brief they’d be that pissed off


34 posted on 01/16/2008 2:45:02 AM PST by Abundy
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To: SJackson
In several other threads, I have pointed out just how weak the legal argument is in the US brief. I have let that weakness lull me into believing that no action need be taken.

Now, I have changed my mind. Though weak, the US brief is treason.

The argument in the US brief is that the right of US citizens to keep and bear arms is no more than the common law right to use arms in defense of self and state.

This is equivalent to stating: "The protection of the right to keep and bear arms of the citizens of Boston in 1791 under the US Constitution was no different than the protection of the right of those same citizens of Boston on April 19th, 1775; the date when government troops killed their own citizens while attempting to disarm them."

The weakness of the argument lulled me into believing that the Supreme Court would view such an argument with the scorn that it deserves. Unfortunately, I am guilty of assuming the best when I should be preparing for the worst.

I will be writing a letter explaining the above to both the President of the United States and to the Solicitor General of the United States. The issue is too important to permit this brief, however weak and wrong, from going unchallenged by those who know better.

35 posted on 01/16/2008 10:24:43 AM PST by William Tell (RKBA for California (rkba.members.sonic.net) - Volunteer by contacting Dave at rkba@sonic.net)
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