RE: USDOJ Brief On Heller

[ForeignDude]

[Note to Mods: This post may belong in "Activism", but it may get more views/traction here. I ask that you leave it in the Legal Sub-Forum.]

Folks,

John Lott, Jr., has an article in National Review Online in response to the Justice Department's brief in the Heller case. See here.

One part caught my attention:

"But all is not lost. The Supreme Court can of course ignore the Bush administration’s advice, but the brief does carry significant weight. President Bush has the power to fix this by ordering that the solicitor general brief be withdrawn or significantly amended. Unfortunately, it may take an uprising by voters to rein in the Justice Department."

Now, how can we go about putting pressure to get the brief amended or withdrawn? Do we contact the White House in numbers? The RNC (i.e., "If this travesty is not withdrawn, you can kiss my vote, money, and volunteer time goodbye!")? Do we contact our Congresspersons to release public statements on the brief?

What do we need to do? Those of you on this forum who are knowledgeable on this, please chime in. And whatever those avenues of involvement are, we need to make our presence felt NOW.

 

[Robert Hairless]

I think it's important for gun owners to become stable. The attorneys in Heller v. DC took great risks in developing and pursuing this case. Despite the hysterical celebrations when the DC appeals court ruled in favor of Heller and when the Supreme Court decided to hear the District's appeal, the case was never a sure thing. One of the many risks was that the Court ruling would lean towards the District.

When the NRA tried to pursue a safer and perhaps surer course, many gun owners were furious at what they considered a sellout and typical compromising.

When I pointed out in another thread a while back that Robert Levy (the Heller attorney who developed this case) was not a gun owner and had his own reasons for pursuing this case (some of which were irrelevant to gun ownership), my explanation generated fury too.

This kind of DOJ brief was one of those risks. It's not surprising to me that the brief introduces governmental concerns about machine guns. How could it be a surprise to anyone else either? This forum and other gun forums are filled with irresponsible declarations that once this case is won there will be attempts to strike down restrictions on machine guns. You want to be heard. You have been heard. When gun owners insist upon raising red flags and press hot button issues, they need to recognize that they will set off explosions. They always make those explosions someone else's fault. This one isn't anyone else's fault. It's an obvious response to the red flag that gun owners have insisted upon raising most unwisely.

Of course John Lott knows more than I do but I don't think it's possible to unring a bell that has been sounded. The DOJ brief has been submitted already. There are no pressures that voters can bring to bear on a President serving out the last few months of his final term in office. Storming the Republican National Committee is equally unlikely to produce useful results and is likelier to be counterproductive. The RNC already is unhappy with the President's pursuit of the Iraq War and has been unable to change his course. Even if it were motivated to pressure him on this issue, there is little chance it would succeed. Why would it bother to do so when there are other issues significant to more unified voting blocs: gun owners no longer speak with one voice. They are fragmented by splinter groups and quarrel amongst themselves.

Surely there is no one so naive as to believe that this brief will not impact the Court even in the unlikely event it were withdrawn. It's done. It is public knowledge.

This particular hot potato is one that only the Heller lawyers can handle. I hope they can handle it. If not, we lose big. And that was the major risk in this course of action.

Stabilize. When you do the dance of joy at the onset of a horribly risky venture, be prepared for the possibility that the venture will crash. I'm not sure that this venture will crash but I am sure that there's nothing anyone other than the principals can do to alter its direction.

 

[Mike OTDP]

I disagree, largely because we have been successful in getting some firearms-related material from the FAA changed.

Now, I'm not 100% sure whether this was a deliberate betrayal, a deliberate creation of a legal bolthole (I think this brief makes a ruling in favor of an individual right very likely, the debate will be over the limits of it), or the bureaucracy slipping one through the cracks. That's a decision that everybody will have to make for themselves.

That being said, if I wanted to protest, I would either call the White House or fax them. Don't bother writing...by the time the letter is through security, it will be too late. This will have to be changed in the next week if it is to be changed at all.

 

[Standing Wolf]

Perhaps the Justice Department’s position isn’t too surprising. Like any other government agency, it has a hard time giving up its authority. The Justice Department’s bias can been seen in that it finds it necessary to raise the specter of machine guns 10 times when evaluating a law that bans handguns. Nor does the brief even acknowledge that after the ban, D.C.’s murder rate only once fell below what it was in 1976.

During the past 30 years or so, the leftist extremists have succeeded in equating machine guns with hand guns with so-called "assault rifles" with school murderers with snipers with...

Deliberately muddying the waters has worked very well since at least Lenin's time.

 

[Mike OTDP]

I'll add that if you are getting fundraising mailings from any Republican candidate, you should send them a polite letter back stating that since the Republican Party has seen fit to betray us, we wash our hands of them...and any donations will be going to the NRA or similar groups.

THAT will get their undivided attention.

 

[TexasRifleman]

I just don't see how this is going to be pulled back. Mukasey has been on the job for a whopping 2 months, his new boss isn't going to mess with him yet.

When we had an AG that actually wrote a position paper on 2A being very much an individual right everyone wanted to hang him because he was in favor of the Patriot Act.

Bush himself said he'd sign the AWB if it made it to his desk.

This is going to the Supremes, there's no way to stop any of it.

We're just along for the ride from here on in, there's no "activism" or anything going to change things.

Wait til Feb when the other side begins to file briefs before the panic.

There is still another side to this argument that remains to be seen.

The Supremes historically have kind of "enjoyed" telling the Exec branch where to stick it now and then, maybe this will be one of them

 

[oldfart]

While I am a member of the NRA I'm not an unqualified supporter of everything it does. Still, Mike's suggestion regarding the fundraising letters does seem like a good idea.

 

[Mazeman]

Am I the only one who doesn't feel this is so bad?

It seems that almost everyone, on both sides of the argument, is agreeing that the 2nd guarantees an individual right. If that's how SCOTUS rules, that alone would have been considered a major victory not that long ago.

Let's say SCOTUS rules as the DOJ recommends. Then, we get an individual right (victory), but nothing else changes; restrictions will still need to be hammered out in state legislatures and the courts. Sure, we could hope for a better ruling, but all-in-all it could be *a lot* worse.

 

[everallm]

One word sums up what we SHOULD be aware of and continue to work towards.

Incrementalism

Over the last 10-15 years, continual, small steps have been taken that have added to the rights of the firearm owner.

The sunsetting and non renewal of the AWB and the expansion of CCW to circa 40 states are but two.

The current activity is A next step not THE next step.

Irrespective of which way the ruling comes down we have just received an enormous albeit incremental boost.

The federal government and the DOJ/BATFE have commited, effectively in open court that 2A is an individual right. They can't retract or step back from that without exposing themselves to (for them) horrendous risk.

This lawsuit was never intended to be or going to lead to a wholesale sweeping aside of existing laws. It's intention is to build on existing positive case law and open the door another inch or so to move to the next step.

On another thread I used the analogy of the law as a slow moving avalanche built on precedent, ruling and case law. The only way to combat such a thing is by building the same sort of mass and momentum in opposition. This current activity is simply the latest and possibly one of the more if not most significant steps. It remains however a step and the most important part is to act to build and not dissipate the momentum.

As Robert Hairless has stated, rational acts and activity help us all more and count for more than rash impulses and yelling and screaming.

Irrespective of the ruling we all need to participate in some manner to press forward our views and beliefs.

As an example, we need to continue to firmly decouple the concept that 2A is about "The Militia". We also have to work with our own brethern in the hunting fraternity to press the message that gun control doesn't end with the evil black rifle, their own "high powered, military style, long range sniper rifles" are also in the sights (pardon the pun) of those who push a control agenda.

An analogy from hunting is useful here, if you are after that spectacular game beast you invest time, effort, energy, training and luck.

You need to pick your hide, know your adversary and it's habits, it's favourite food locations, it's temperament.

You don't want to spook it or any of the others, especially the ones that are not permissible to hunt and you know that often you have to return several times before the target is in your sights.

Step by step, build your background, don't backslide and bring others along.

It's going to be a long and bumpy ride, may as well enjoy it........

 

[RP88]

its bad, because if they were to find some stupid reason to uphold the DC ban despite ruling that the 2nd is individual, then it could make it hard to get rid of state or city-level bans just because of the 'interest to the area's unique problems' argument that was made. Such a thing could give alot of anti-gun areas a loophole. Another thing is that the case hasnt been ruled in our favor despite that it looks like it will (or should), so nothing is certain.

 

[ilbob]

is irrespective a word?

 

[everallm]

Yep, real $2 word

Websters definition

Without regard for conditions, circumstances, or consequences; unbiased; independent; impartial; as, an irrespective judgment

http://webster-dictionary.net/definition/irrespective

 

[Mike OTDP]

Mazeman, the issue is the level of scrutiny that gun laws would undergo.

Strict scrutiny (what Heller got from the DC Circuit ruling) does not wipe out all gun laws. The ruling was very specific about that. What it does is require the Government to prove that any legislation is of restricted scope and impact. Forget trying to overturn the NICS check.

What DOJ is asking for is a lesser level of scrutiny...one which makes the task of proving a law unconstitutional much harder. Now, I will admit that they DO concede that the DC gun ban would probably not pass this level of scrutiny.

The problem is, it only kicks the can down the road and back to lower courts...with the potential for the courts to rule that as long as you can have some sort of weapon, the 2nd Amendment is being complied with. Never mind that the only "arms" you are allowed to have are clubs and steak knives. It's too open to abuse.

 

[Mike OTDP]

I'll add that I concur with everallm. The DOJ brief DOES acknowledge that the 2nd Amendment describes an individual right...which is a BIG concession, and I suspect that SCOTUS will rule in our favor on that point. A remanding of the DC laws for re-review at a lower level of scrutiny? Well, if I were Mr. Gura, I'd be requesting that such a remand be accompanied with an injunction requiring that DC register pistols until such review is accomplished. Particularly since the DOJ brief states that the DC ban would probably not stand the level of review they want.

After all, Mr. Heller is not getting any younger.

 

[green-grizzly]

Unfortunately, the Bush administration has a habit of being 'moderate' on civil rights. For example, he signed the McCain-Feingold law while admitting that it was unconstitutional. The DOJ filed a weak brief in the Michigan affirmative action matter, which split the difference as is the case here. The Bush people are socially conservative, but they are not libertarian or conservative in other respects. They really just do not care much about these issues, and thus never take a strong stance on them.

I don’t think it would do much good to write the White House. Bush does not seem to react well to criticism, and I think he could really care less about the whole issue. This is the guy who said he would sign the AWB after all (even while winking that it would never reach his desk); the brief seems entirely consistent with his principles. Our influence with the administration IMHO is purely through the medium of the NRA, and the fact that Bush is a lame duck has liberated him from having to pay much attention to them.

 

[Robert Hairless]

Winners don't panic or go off half-cocked. They assess situations and respond to them appropriately. "Appropriately" means in a manner calculated to have a positive effect towards reaching the goal. They respond only when it is to their advantage. Sometimes they don't respond at all. They choose their fights and avoid being pushed into them.

They never make threats and they never use the word "betrayal" or any form of it. "Betrayal" is a declaration of weakness, a signal that you have given someone else decisive power over you and they failed to exercise it on your behalf. You have then not only made yourself powerless but you also have told everyone else that you are powerless.

Winners work incrementally, in stages, moving always towards clearly defined goals that are reasonable and capable of achievement. They never play "winner take all" because they never want to risk losing all. They aim and they hit. Little by little they make solid wins.

 

[Harley Quinn]

The two Bush boys have in some way been pretty tough on the right to own firearms (importing) now this with the Younger of the two. Hmmm is my thought.

 

[esq_stu]

Lots of interesting thread comments on the briefs:

http://volokh.com/posts/1200292558.shtml
http://volokh.com/posts/1200277286.shtml

I can't get enough of this stuff.

 

[SWMAN]

No one should be surprised at this developemnt. Bush has been hostile to the BORs throughout his administration in the guise of protecting the public. Patriot Act anyone? AG Gonzolaes, Sullivan at ATFE and now this new AG from New York.

 

[Daemon688]

This is a carry over from the previous thread.

IlBob: I was refering to the quote below. If this is the DOJ argument, then any ban is reasonable as long as people can have firearms for protection. What firearms is open to government interpretation and with the erosion of rights, the 2nd amendment would still remain intact the only weapons we would have is....probably black powder rifles.

The Department of Justice argument can be boiled down pretty easily. Its lawyers claim that since the government bans machine guns, it should also be able to ban handguns. After all, they reason, people can still own rifles and shotguns for protection, even if they have to be stored locked up.

 

[revjen45]

Is it just coincidence that the Bush Administration is supporting gun control at a time when various sources are indicating economic downturn and possible real ugliness? They don't want all those angry peons to be armed when the Fedgov's credit rating goes to "junk."

 

[ilbob]

I think it is just coincidence. Bush is a go along kind of guy. He thinks being president is mostly about running foreign policy and the war. I think he really just does not care so much about domestic issues and is inclined to leave that to congress.

 

[nezumi]

Well I'm not voting for Bush again!

Truthfully though, it seems the argument that the 2nd Amendment doesn't apply because of 'local conditions' is a much weaker argument than saying it doesn't apply because it's not an individual right. Maybe Bush is actually working for our side by putting forward a self-defeating argument and putting his name (less than 30% popularity) on the side he wants to crash and burn? Not saying he's doing it consciously, but still...

 

[ArmedBear]

Bush is a go along kind of guy.

True.

It might be hard for a lot of us to understand, but he doesn't seem to have really strong convictions about a lot of things.

He's more of a "manager" type. Like Mitt Romney, one gets the notion that there are many political issues that he never really thought much about before.

 

[TexasRifleman]

Patriot Act anyone? AG Gonzolaes, Sullivan at ATFE and now this new AG from New York.

Problem is that the AG of the Patriot Act was Ashcroft ,and from appearances and publications is appears that Ashcroft was just about as pro 2A as they came. His office published the reversal of opinion from Janet Reno days that the Second Amendment was an individual right in the first place.

Until that the Reno opinion of the collective rights model was still the "official" position of the .gov.

So the work up over the Patriot Act seems to have run away the one AG that was on our side and we end up with Mukasey, who probably doesn't know which end of the gun the bullets exit.