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In a move that drives a stake into the heart of every remaining Bush-lover, the Bush
Department of Justice has filed an Amicus Brief with the U.S. Supreme Court defending
the Washington DC gun ban that was overturned on Second Amendment grounds by a
lower U.S. District Court.
As you all know, the Department of Justice would never file such a brief unless they had
instructions to do so by the Bush Administration and the president himself.
You can read the 35 page Brief filed by the Department of Justice by clicking here for the
PDF.
Quick read of the PDF: Gov't says, yes, it's an individual right. BUT we join with DC in
asking Court to reverse the DC Circuit, because it applied strict scrutiny to the DC law. It
should only have applied an intermediate standard. That is, the legal position of the US is
that DC CIrcuit was wrong, a complete ban on handguns is NOT per se unconstitutional,
it all depends on how good a reason DC can prove for it.
And this is filed in the name of the Solicitor General. Some quotes:
"When, as here, a law directly limits the private possession of “Arms” in a way that has no
grounding in Framing-era practice, the Second Amendment requires that the law be
subject to heightened scrutiny that considers (a) the practical impact of the challenged
restrictions on the plaintiff’s ability to possess firearms for lawful purposes (which
depends in turn on the nature and functional adequacy of available alternatives), and (b)
the strength of the government’s interest in enforcement of the relevant restriction.
The court of appeals, by contrast, appears to have adopted a more categorical approach.
The court’s decision could be read to hold that the Second Amendment categorically
precludes any ban on a category of “Arms” that can be traced back to the Founding era.
If adopted by this Court, such an analysis could cast doubt on the constitutionality of
existing federal legislation prohibiting the possession of certain firearms, including
machine guns. However, the text and history of the Second Amendment point to a more
flexible standard of review."
"The determination whether those laws deprive respondent of a functional firearm
depends substantially on whether D.C.’s trigger-lock provision, D.C. Code § 7-2507.02,
can properly be interpreted (as petitioners contend, see Br. 56) in a manner that allows
respondent to possess a functional long gun in his home.8 And if the trigger-lock
provision can be construed in such a manner, the courts below would be required to
address the factual issue—not fully explored during the prior course of the litigation—
whether the firearms that are lawfully available to respondent are significantly less suited
to the identified lawful purpose (self-defense in the home) than the type of firearm (i.e., a
handgun) that D.C. law bars respondent from possessing. To the extent necessary,
further consideration of those questions should occur in the lower courts, which would
be in the best position to determine, in light of this Court’s exposition of the proper
standard of review, whether any fact-finding is necessary, and to place any appropriate
limits on any evidentiary proceedings. Moreover, even if the existing record proved to be
adequate, initial examination of those issues is typically better reserved for the lower
courts."
CONCLUSION
The Court should affirm that the Second Amendment, no less than other provisions of the
Bill of Rights, secures an individual right, and should clarify that the right is subject to the
more flexible standard of review described above. If the Court takes those foundational
steps, the better course would be to remand. "
As I read this, the (Bush) Department of Justice is asking that the Court hold it to be an
individual right, but not strike the DC gun law, instead sending it back down to the trial
court to take evidence on everything from how much the District needs the law to
whether people can defend themselves without pistols and just what the DC trigger lock
law means. THEN maybe it can begin another four year trek to the Supremes.
That is, the DoJ REJECTS the DC Circuit position that an absolute, flat, ban on handguns
violates the Second Amendment, and contends that it might just be justified, it all
depends on the evidence.
There was a saying during my years in DC that the GOP operated on two principles:
Screw your friends and appease your enemies. Yup.
Department of Justice has filed an Amicus Brief with the U.S. Supreme Court defending
the Washington DC gun ban that was overturned on Second Amendment grounds by a
lower U.S. District Court.
As you all know, the Department of Justice would never file such a brief unless they had
instructions to do so by the Bush Administration and the president himself.
You can read the 35 page Brief filed by the Department of Justice by clicking here for the
PDF.
Quick read of the PDF: Gov't says, yes, it's an individual right. BUT we join with DC in
asking Court to reverse the DC Circuit, because it applied strict scrutiny to the DC law. It
should only have applied an intermediate standard. That is, the legal position of the US is
that DC CIrcuit was wrong, a complete ban on handguns is NOT per se unconstitutional,
it all depends on how good a reason DC can prove for it.
And this is filed in the name of the Solicitor General. Some quotes:
"When, as here, a law directly limits the private possession of “Arms” in a way that has no
grounding in Framing-era practice, the Second Amendment requires that the law be
subject to heightened scrutiny that considers (a) the practical impact of the challenged
restrictions on the plaintiff’s ability to possess firearms for lawful purposes (which
depends in turn on the nature and functional adequacy of available alternatives), and (b)
the strength of the government’s interest in enforcement of the relevant restriction.
The court of appeals, by contrast, appears to have adopted a more categorical approach.
The court’s decision could be read to hold that the Second Amendment categorically
precludes any ban on a category of “Arms” that can be traced back to the Founding era.
If adopted by this Court, such an analysis could cast doubt on the constitutionality of
existing federal legislation prohibiting the possession of certain firearms, including
machine guns. However, the text and history of the Second Amendment point to a more
flexible standard of review."
"The determination whether those laws deprive respondent of a functional firearm
depends substantially on whether D.C.’s trigger-lock provision, D.C. Code § 7-2507.02,
can properly be interpreted (as petitioners contend, see Br. 56) in a manner that allows
respondent to possess a functional long gun in his home.8 And if the trigger-lock
provision can be construed in such a manner, the courts below would be required to
address the factual issue—not fully explored during the prior course of the litigation—
whether the firearms that are lawfully available to respondent are significantly less suited
to the identified lawful purpose (self-defense in the home) than the type of firearm (i.e., a
handgun) that D.C. law bars respondent from possessing. To the extent necessary,
further consideration of those questions should occur in the lower courts, which would
be in the best position to determine, in light of this Court’s exposition of the proper
standard of review, whether any fact-finding is necessary, and to place any appropriate
limits on any evidentiary proceedings. Moreover, even if the existing record proved to be
adequate, initial examination of those issues is typically better reserved for the lower
courts."
CONCLUSION
The Court should affirm that the Second Amendment, no less than other provisions of the
Bill of Rights, secures an individual right, and should clarify that the right is subject to the
more flexible standard of review described above. If the Court takes those foundational
steps, the better course would be to remand. "
As I read this, the (Bush) Department of Justice is asking that the Court hold it to be an
individual right, but not strike the DC gun law, instead sending it back down to the trial
court to take evidence on everything from how much the District needs the law to
whether people can defend themselves without pistols and just what the DC trigger lock
law means. THEN maybe it can begin another four year trek to the Supremes.
That is, the DoJ REJECTS the DC Circuit position that an absolute, flat, ban on handguns
violates the Second Amendment, and contends that it might just be justified, it all
depends on the evidence.
There was a saying during my years in DC that the GOP operated on two principles:
Screw your friends and appease your enemies. Yup.
| DEPARTMENT OF JUSTICE FILES AMICUS TO DEFEND DC GUN BAN Carl F. Worden |
