DOJ brief: "This is bizarre."

[F4GIB]

Wall Street Journal
REVIEW & OUTLOOK

Misfire at Justice
January 22, 2008; Page A18

The Second Amendment's right to bear arms has rarely been considered by the Supreme Court, but this year the Court is hearing a case that could become a Constitutional landmark. So it is nothing short of astonishing, and dispiriting, that the Bush Justice Department has now weighed in with an amicus brief that is far too clever by half.

The case concerns a D.C. Circuit decision that overturned a Washington, D.C., law denying a handgun permit to plaintiff Dick Heller. Judge Laurence Silberman wrote for the majority that when the Second Amendment says "the right of the people to keep and bear arms, shall not be infringed," it means exactly that. He added that "the Second Amendment protects an individual right to keep and bear arms" (our emphasis), and is not limited to people serving in a modern "militia" such as the National Guard, as some gun-control advocates maintain.

The amicus brief filed by Solicitor General Paul Clement agrees with this part of the D.C. Circuit ruling. But then it goes on a bender about violent felons wielding machine guns, urging the Supreme Court to reject the legal standard applied by Judge Silberman. Instead, the SG invites the Supremes to hand down an elaborate balancing test that would weigh "the strength of the government's interest in enforcement of the relevant restriction" against an individual's right to bear arms.

This is supposedly necessary because of this single phrase in Judge Silberman's 58-page ruling: "Once it is determined -- as we have done -- that handguns are 'Arms' referred to in the Second Amendment, it is not open to the District to ban them" (our emphasis). This has alarmed the lawyers at Justice, eliciting their dire warnings that somehow Judge Silberman's logic would bar the regulation of M-16s, felons with guns, or perhaps even Sherman tanks.

This is bizarre. The key word in Judge Silberman's opinion is "ban." His opinion readily concedes that regulating guns and banning them are not the same. He explicitly notes that felons may be barred from owning guns without implicating the Second Amendment and points out that weapons of a strictly military nature are not encompassed by the right to bear arms. Nothing in Judge Silberman's opinion precludes reasonable restrictions on weaponry.

More ominously, if Mr. Clement's balancing test were adopted by the High Court, it would be an open invitation to judges nationwide to essentially legislate what is or isn't proper regulation. The beauty of Judge Silberman's standard is that it carved out wide Constitutional protections for arms -- such as "most" hand guns and hunting rifles -- that Americans now own and that might reasonably have been anticipated by the Founders. The Bush Justice Department is instead inviting the Supreme Court to uphold an individual right to bear arms in principle but then allow politicians and judges to gut it in practice.

The District of Columbia has argued that it has a strong governmental interest in a near-total handgun ban. To support its claims it has trotted out all manner of emotive appeals and dubious sociology to attenuate the right protected by the Second Amendment. Justice's balancing test would invite thousands of judges to allow fact-finding on the need for gun control and then issue what would essentially be their own policy judgments. This is precisely the kind of activist judicial nightmare that President Bush himself claims to oppose.

So why would his own Solicitor General do this? The speculation in legal circles is that Mr. Clement is trying to offer an argument that might attract the support of Anthony Kennedy, the protean Justice who is often the Court's swing vote. But this is what we mean by "too clever by half." Justice Kennedy would be hard-pressed to deny that the Second Amendment is an individual right, given his support in so many other cases for the right to privacy and other rights that aren't even expressly mentioned in the Constitution. No less a left-wing scholar than Laurence Tribe has come around to the view that the Second Amendment protects an individual right for this very reason. Mr. Clement is offering a needless fudge.

The D.C. Circuit's opinion in Heller is forceful, clearly reasoned and Constitutionally sound. By supporting that decision and urging the Supreme Court to validate it, the Bush Administration had the opportunity to help the Court see its way to a historic judgment. Instead, it has pulled a legal Katrina, ineptly declining even to take a clear view of whether Mr. Heller's rights had been violated. It dodges that call by recommending that the case be remanded back to the lower courts for reconsideration.

The SG's blundering brief only increases the odds of another inscrutable High Court split decision, with Justice Kennedy standing alone in the middle with his balancing scales, and the lower courts left free to disregard or reinterpret what could have been a landmark case. Is anybody still awake at the White House?

http://online.wsj.com/article/SB120096108857304967.html?mod=opinion_journal_main_stories

 

[3/325]

Instead, the SG invites the Supremes to hand down an elaborate balancing test that would weigh "the strength of the government's interest in enforcement of the relevant restriction" against an individual's right to bear arms.

This is what we call a RED FLAG. The government is not a body entitled to it's own interests. It exists to serve the interest of the people. This isn't a minor grammatical issue or a poor choice of words; this reflects the perspective of too many people who hold office.

 

[USAFNoDAk]

The key word in Judge Silberman's opinion is "ban." His opinion readily concedes that regulating guns and banning them are not the same. He explicitly notes that felons may be barred from owning guns without implicating the Second Amendment and points out that weapons of a strictly military nature are not encompassed by the right to bear arms. Nothing in Judge Silberman's opinion precludes reasonable restrictions on weaponry.


I'd say that it IS guns which are of a strictly military nature that the Second Amendment encompasses. It's not about duck or deer hunting Judge Silberman. I do agree with most of his opinion on this matter, but not with the part I emboldened above. On that, I completely disagree with him. Of course, who, other than Bill Clinton, really knows what the meaning of IS really is?

 

[BobbyQuickdraw]

Yeah, the founding fathers had just won a revolution against deer, rabbits, and small game.

In no way does the Second Amendment specify that arms should be used for hunting only, nor does it even imply that there are different kinds of arms. There are merely arms, and the people can keep and bear them. And let us not forget, that then, hunting arms and military arms were the same.

Back then it wasn't uncommon for an individual to own cannon. Blunderbuss or punt gun, anyone?

 

[RP88]

the exact quote above makes me cocnerned because of what they could try to further do to SA rifles, such as screwing with ammunition or banning hi-caps on a national level. Also, by technical standards, today's moden arms are hutning weapons as well, but there are limits on which ones and what ammo you can use for certain reasons.

I wholly agree with the fact that the constitution does not discriminate against certain kinds of guns; it doesnt in the 2nd, and it doesnt in any other amendment, yet people keep trying to imply it does

 

[ArmedBear]

I'd say that it IS guns which are of a strictly military nature that the Second Amendment encompasses.

I believe he means ICBM's, Fuel-air bombs, nuclear weapons, that sort of thing, not AR's.

"Strictly military" would refer to bombardment weapons, air-to-air missiles, etc., as opposed to "personal weapons."

 

[Deavis]

It's not about duck or deer hunting Judge Silberman.

Either you haven't read the decision which Silberman penned or you have a very very weird take on it. Where in the decision did Silberman say anything about individual rights and the reason being for hunting? He said,

"Once it is determined -- as we have done -- that handguns are 'Arms' referred to in the Second Amendment, it is not open to the District to ban them"

The fact is that most hunting rifles wqould fit that definition, it isn't outrageous to note that nor is it outrageous to mention that some military arms aren't for civillian consumption. Oh, say, like tanks or cluster bombs.

 

[BobbyQuickdraw]

"Strictly military" IMHO would apply to bombs, booby traps... Thats about it, really. Well, tanks are a vehicle, and not an arm. Fighter Jets are airplanes not arms. Self-propelled artillery is a vehicle.

But "Assault Rifles" and "machine guns" would surely be pushed into the definition of "strictly" military if the option was there. Allowing room for wiggle can be dangerous.

We have every right to military *small* arms (anything a man can carry and use by himself, really), from .22s to M2s, they are supposed to be ours.

 

[USAFNoDAk]

Quote:
I'd say that it IS guns which are of a strictly military nature that the Second Amendment encompasses.

I believe he means ICBM's, Fuel-air bombs, nuclear weapons, that sort of thing, not AR's.

"Strictly military" would refer to bombardment weapons, air-to-air missiles, etc., as opposed to "personal weapons."

You could be correct, but I don't put as much trust in our judges, especially at the federal level. Any other federal judge might say that "strictly military" means weapons which "are", or "should be", restricted to the military only, such as full auto M16's, and as such, the second amendment does not encompass such weapons.

The language is too loose to be about defending our rights.

Remember, the Second Amendment is about protecting our rights, not granting or defining them. This means our rights are protected against encroachment by the government, unless there is such widespread danger to the nation or the people at large from allowing such weapons to be in civilian hands. Such a case would be a nuclear warhead. You own one of those and have an accident with it, good-bye to you and 100's of thousands of others. Keeping hand grenades in compact housing areas might rise to a similar level of danger. Keeping handguns, rifles (full and semi auto), shotguns, etc. do not rise to that same level. Therefor, it should be unreasonable for any government to ban those things for all people in general. This seems to be the case with Washington, D.C.

If you have committed a violent crime, that's another story, once you've been through the legal process and have been found guilty.

 

[USAFNoDAk]

Deavis Wrote

Either you haven't read the decision which Silberman penned or you have a very very weird take on it. Where in the decision did Silberman say anything about individual rights and the reason being for hunting?

He didn't. But you didn't read my statement in the context of what Judge Silberman said. He said that the Second Amendment doesn't encompass weapons which are strictly military in nature. I don't believe the Second Amendment really has to do with the military at all, other than the fact that we have the right to keep and bear arms in order that we might contribute to the efficiency of the militia, among other things. That is a key reason, but not the only one. We also have a right to keep and bear arms for personal protection, defending our communities and to hunt if we wish. By stating that the Second Amendment doesn't encompass "strictly military in nature" weapons, one might surmise that he believes it's about protecting only hunting rifles, shotguns, and handguns for self defense. I agree with him that the Second Amendment protects those types of weapons as things we have the right to keep and bear. I also believe the Second Amendment would protect our rights to keep and bear an M16 if we so desire. Many people would say that an M16 is "strictly military in nature". His statement is loose enough to think that he is open to banning such firearms, even in light of his recognition of the rights protected by the Second Amendment.

 

[F4GIB]

Anything the new "standing army," that is the full-time police, can have "for personal defense" (which is the only constitutional reason they can shoot), I can have. If they need it, want it, or have had it, so can other Americans.

 

[littlegator]

Additionally, (because everyone has so thoroughly scrutinized the decision so far), the framers did not anticipate many of the guns we have in common ownership throughout the world today - because it wasn't necessary to draft the 2nd Amendment. The Constitution is not limited by our inadequate knowledge or foresight of future technology. According to the DC Cir. Ct., however, if it wasn't specifically contemplated, then the right doesn't exist. Here is where judicial activism at the expense of judicial wisdom is at its worst. Backing into the argument, lets say that the revolution was won with the use of the AK47. (Work with me here...) Don't you think the framers would have contemplated protecting a free society's right to keep and bear that specific firearm? Just because the gun itself was not in production at the time, does not mean that the protection of the right wasn't codified in the broad language of the 2nd amendment. The right to keep and bear arms is not (should not be) limited by the specific arms being used. Contemplation of the framers should, likewise, not be limited by their omission of future weapon systems, since that issue is not relevant to the 2nd amend query.

 

[F4GIB]

Technology was pretty far along in 1791.
DC has put their chips on the handgun ban.

http://ssrn.com/abstract=1081403

 

[markmc753]

Is anybody still awake at the White House?

Yeah, the same people sworn to "uphold and protect" the constitution and then gave us the "Patriot Act," are wide awake. In fact, restricting 2adm rights will go a long way in insuring the success of the Patriot Act. The folks at 1600 aren't stupid.

 

[Kipling79]

Instead, the SG invites the Supremes to hand down an elaborate balancing test that would weigh "the strength of the government's interest in enforcement of the relevant restriction" against an individual's right to bear arms.

This is what we call a RED FLAG. The government is not a body entitled to it's own interests. It exists to serve the interest of the people. This isn't a minor grammatical issue or a poor choice of words; this reflects the perspective of too many people who hold office.

I agree that the government should not have an "interest" of its own, but this wording of "government" interest is often used in legal writing to reflect the governemnts legitimate interest in public safety and such.... things like speed limits and FDA regulations... and gun regulations.

I think the state definitely has an interest in regulation.... but I do not believe in arbitrary regulation, as long as a person is sane and not a criminal, let him have a gun.

 

[3/325]

I understand what you're saying, but the interests you offered as an example are interests of the People and not the government (safety, clean food, etc). The only thing any government has an interest in is power: the power to regulate and the power to enforce.

Governments with too much or too little power are a danger to their own citizens. The problem is that governments cannot stand still, they are either moving toward one extreme or the other.

 

[F4GIB]

* * * Translated, that's a call for endless judicial meddling. Not to put too fine a point on it, but that's the sort of reasoning that has been used by liberals for years to inflict wound after wound on the notion of judicial restraint.

http://www.examiner.com/printa-1170688~Bush_shows_poor_aim_on_D.C._gun_law.html

 

[ctdonath]

I don't believe the Second Amendment really has to do with the military at all

'cept for that little "well-regulated militia" bit, and the thing about the "security of a free state" - you know, that whole why-we-have-this-right explanatory prefix to the sentence.

The Founding Fathers had just finished a revolt against the world's reigning superpower.
They wrote a Constitution which included allowing Congressional approval to private parties to go start private wars with foreign powers.
They made clear their general opposition to standing armies, and expected the defense of the nation to rest primarily in the hands of a well- and self-armed populace.

Nah. Doesn't have anything to do with military applications. Wouldn't cover "strictly military" hardware. Muskets are fine for breaching fort walls. Don't need more than a cutlass to board a ship. Bolt-action rifles will take down MiGs just fine. The government will protect us. Yeah.

 

[Beagle-zebub]

Correct me if I'm wrong, but you could buy all sorts of heavy-duty military weapons through the mail until 1968, at least in many states. Aren't all those 20mm Lahtis are surplus from that era, along with (I seem to recall) German anti-tank rifles? Now of course, that all changed after the Great Lahti Massacre of '67....

Honestly though, why would anyone shell out the money for a weapon like that when they could buy dynamite at the hardware-store? Even in the absence of the good stuff at Home Depot, it's still more efficient to make something like ANFO in OK-City quantities.

As legal philosophy goes, no one should have had any illusions about Dubya--he's a conservative who uses a liberal's strategies. (Indeed, it was understanding the obnoxiousness of being on the business-end of such measures that turned a hard-core Democrat into a libertarian.)

 

[Wes Janson]

20mm Lahtis and Solothurns are not particularly effective modern military weapons however. An M1A2 Abrams, F-22 Raptor, or even an AT4, is. However, private citizens are effectively barred from owning any of those, or most any other efficient contemporary weapon system. What isn't illegal outright is generally verboten in practice due to the extraordinary costs and small, heavily controlled markets. I could be wrong, but I strongly suspect that even if a private individual had enough money to purchase a Raptor, Boeing/Lockheed Martin would likely refuse to sell the airframe and avionics, and would certainly withhold any ordnance. Not to even begin to talk about the expense of training, maintenance, spare parts, fuel, etc.

 

[Aguila Blanca]

I believe he means ICBM's, Fuel-air bombs, nuclear weapons, that sort of thing, not AR's.

"Strictly military" would refer to bombardment weapons, air-to-air missiles, etc., as opposed to "personal weapons."

Don't forget, in colonial times it was common for wealthier gents to own their own cannons. Quite often the guy who owned the cannon was the guy who got to be the colonel in the local militia. And don't forget that the fledgling U.S. government granted letters of marque to privateers -- which were effectively privately owned warships. Roughly the equivalent today of the government encouraging you to own your own destroyer or frigate.

Arms means arms -- as one of the Founders wrote, "and all the terrible implements of war." The intent of the 2nd Amendment was to ensure a fully-armed and practiced populace that would always be capable and prepared to defend the country against all enemies, "foreign and domestic."

 

[ConstitutionCowboy]

Here's a new twist: Maybe this administration wants a civil war. I can't think of a better way to start one than the government intrusion that started the shooting in the Revolution.

Just thinking, as it were. It's not quite speculation - yet.

Woody

Look at your rights and freedoms as what would be required to survive and be free as if there were no government. If that doesn't convince you to take a stand and protect your inalienable rights and freedoms, nothing will. If that doesn't convince you to maintain your personal sovereignty, you are already someone else's subject. If you don't secure your rights and freedoms to maintain your personal sovereignty now, it'll be too late to come to me for help when they come for you. I will already be dead because I had to stand alone. B.E.Wood

 

[USAFNoDAk]

Quote:
I don't believe the Second Amendment really has to do with the military at all

'cept for that little "well-regulated militia" bit, and the thing about the "security of a free state" - you know, that whole why-we-have-this-right explanatory prefix to the sentence.

The Founding Fathers had just finished a revolt against the world's reigning superpower.
They wrote a Constitution which included allowing Congressional approval to private parties to go start private wars with foreign powers.
They made clear their general opposition to standing armies, and expected the defense of the nation to rest primarily in the hands of a well- and self-armed populace.

Nah. Doesn't have anything to do with military applications. Wouldn't cover "strictly military" hardware. Muskets are fine for breaching fort walls. Don't need more than a cutlass to board a ship. Bolt-action rifles will take down MiGs just fine. The government will protect us. Yeah.

You apparently misread what I wrote or just picked up on this one statement. I do believe the Second Amendment would protect military arms as well as non military arms. What I meant by my statement, that the Second Amendment doesn't really have anything to do with the military, was that you don't have to be a member of the military to have your right to keep and bear rifles, pistols, machine guns, etc. protected by the Second Amendment. The militia phrase is just one of the main reasons given for the protection of our rights, but it's not the ONLY reason.

 

[ilbob]

Here's a new twist: Maybe this administration wants a civil war. I can't think of a better way to start one than the government intrusion that started the shooting in the Revolution.

I don't think they are anywhere near that clever.

I also don't think people that won't even vote will start shooting either.

 

[revjen45]

"Technology was pretty far along in 1791."
Ref. Puckle Gun- capable of getting 100 projectiles in the air in 1 minute. It was the ancestral form of the machine gun.