Federal Govt. Files Brief In Support of the District of Columbia

[ctdonath]

Interesting tactics:

Accordingly, after taking the foundational steps discussed above, the better course would be to remand the case for further proceedings consistent with the Court’s opinion.

Translation: don't rule on Heller per se, bury it.

This Court should affirm the court of appeals’ threshold determination that the Second Amendment protects an individual right, but it should adopt a more flexible standard of review.

Translation: DC Circuit Court ruled correctly, but we don't like the result, so do something to fudge it our way.

Relying primarily on the Amendment’s prefatory language, petitioners contend that the Second Amendment “protects the possession and use of guns only in service of an organized militia.” Pet. Br. 8; see id. at 11-35. That is incorrect. <snip prolonged verbiage proving the "individual RKBA" view> Thus, by constitutionalizing the preexisting common-law right to possess firearms, the Second Amendment served in part to protect the individual’s lawful right to possess a firearm for self-defense.

Observation: with friends like that, DC doesn't need enemies.

Such a categorical approach would cast doubt on the constitutionality of the current federal machinegun ban, as well as on Congress’s general authority to protect the public safety by identifying and proscribing particularly dangerous weapons.

Observation: perhaps such doubt SHOULD be cast - considering machinegun owners are demonstrably one of the safest category of weapons owners.

Observation: the AG spends little time discussing pistols and a lot of time discussing machineguns. He knows Heller can take down 922(o) - if not directly, then trivially after.

because automatic rifles like the M-16 are now standard-issue military weapons for rank-and-file soldiers, the court’s reference to the “lineal descendant” of the weapons used in Founding-era militia operations, see Pet. App. 51a, on its face would cover machineguns and other firearms that represent vast technological improvements over the “Arms” available in 1791.

Observation: JACKPOT! The USA AG states to SCOTUS that if pistols should be legal in DC, then M16s will be too!

The Amendment’s text and history thus suggest that the substantive right secured did not guarantee an unfettered choice of “Arms.”

Poor tactic: First, the Founding Fathers surely recognized the value of someone showing up with something instead of nothing. Second, this view is incompatible with the notion of preventing one from showing up with the "right" weapon (don't tell me only M16s are "approved" and then prevent me from showing up with one).

Congress Has Substantial Authority To Ban The Private Possession Of Firearms By Persons Whom Congress Deems Unfit To Keep Such Weapons

Translation: the enumerated right applies to everyone except those whom Congress decides it does not apply to.

Observation: if the right in question applies to someone, then surely it applies to someone whose JOB it is to carry a FIREARM in one of the most RESTRICTED locations in the nation: the Capitol Building. Example of such a person: Mr. Heller. The irony is dripping all over the floor.

THE COURT SHOULD REMAND THIS CASE TO THE LOWER COURTS TO PERMIT THEM TO ANALYZE THE CONSTITUTIONALITY OF THE D.C. LAWS AT ISSUE UNDER THE PROPER CONSTITUTIONAL INQUIRY

Translation: now that the AG has made it clear that Congress has the power to forbid felons from having machineguns, let's just wrap the case up forever by having lower courts bicker over how to make that notion apply to forbidding model citizens (to wit: Mr. Heller) from having reasonable home-defense arms via a non-sequitor.

The greater the scope of the prohibition and its impact on private firearm possession, the more difficult it will be to defend under the Second Amendment. ... Under that analysis, the D.C. ban may well fail constitutional scrutiny.

Observation: again, with friends like this, DC doesn't need enemies.

Allowing lower courts to develop doctrines to address issues concerning the scope of the Second Amendment, its application to a variety of circumstances, and the relevance of particular historical materials has much to recommend it.

Observation: we tried that. That's why we're in the legal mess we're in, and why SCOTUS needs to step in and clean it up. Amateur hour is over.

The determination whether those laws deprive respondent of a functional firearm depends substantially on whether D.C.’s trigger-lock provision ... can properly be interpreted ... in a manner that allows respondent to possess a functional long gun in his home

Translation: hey, let's try the old Jedi Mind Trick ... <waves hand> "functional long guns are legal in DC."

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.

Translation: on behalf of DC we would like to concisely say that DC's argument is stupid, but if you agree that they're stupid then we'll lose our ban on machineguns, so please come up with some lame reason to throw the whole issue back to lower courts so we can continue banning machineguns.

 

[FieroCDSP]

Wouldn't it be a hoot to see the looks on BATFE's collective faces if SCOTUS decided to stick it to all of them (for their collective right to arrogance and foolishness) and rule everything from the '30's restriction to now as being unconstitutional, hand them their pink slips, and send them on their merry way?

No I don't honestly think that would happen, as they'd be legislating from the bench, not to mention the uproar from the people know don't know any better. I'd just like to see the look. Then I'd be ordering my M-4.

 

[Gunnerpalace]

Wayne LaPierre declared that repeal of the machinegun ban would be NRA's top priority in the next session of Congress. Even though Mr. LaPierre has been the Chief Executive Officer of the organization for more than 15 years now no bill to repeal the '86 ban has ever been put forward by NRA

:banghead: That sums up my opinions right there,

I read a book on this, expect a review tomorrow in General Topics.

 

[nicki]

Scotus

The Supreme court knows that the issue of the second amendment needs to be dealt with.

The 5th and now 2nd federal district courts have come down on the individual right model.

This case is being watched by the whole country by both sides of the gun debate.

The SCOTUS is going to have to directly deal with the 2nd amendment.

Alan Gottlieb of SAF believes we will get at least a 5 to 4, possible a 7 to 2 ruling.

It is a very narrow and tailored case, but the SCOTUS may surprise us and just give us a strong and clear ruling.

Regardless of how the court rules, we win.

Many gun owners al across the country have been complacent believing they have a constitution right to own guns. If the SCOTUS goes against us, those gun owners will get a rude wake up call and get off their ***es.

If the SCOTUS rules our way, we can start to use the courts to take back our rights.

Many elected officials promote gun control to avoid dealing with hard issues, a good ruling will force them to deal with hard issues, or try to find another scapegoat.

2009 is gearing up to be a serious year on many issues. We will either get back our rights or turn into a police state.

Nicki

 

[Robert Hairless]

Outlaws:

Once again the NRA is scared to mention the word "machinegun" even though the brief filed by the Feds states that word 10 times.

Heller v. DC does not involve machine guns. It also does not involve other red herrings.

Good NRA bashing as usual, though.

 

[GW]

Agreed
I am utterly disappointed (not surprised however) by this turn of events.
My one hope here is that SCOTUS will remember it is an independent branch of the government and judge this case on its constitutional merits alone.

 

[publius]

This is not phrased in terms which recognize any doubt regarding the existence of "individual RKBA" - and this question was written by SCOTUS. Correct me if I'm wrong: this literary construct axiomatically recognizes that individuals have Second Amendment rights, and proceeds to address an issue solely on that ground.

I think you are wrong. The answer they reach to the question they posed COULD be: No, because individuals who are not affiliated with any militia have no 2A rights. That is the answer petitioners are urging, and there is some chance they could succeed.

 

[publius]

Heller v. DC does not involve machine guns.

The DOJ is saying that if bans on entire categories won't withstand strict scrutiny, we need to find a standard which they will withstand. Handguns are a category. Machine guns are a category. They're clearly worried about 922(o), the machine gun ban, and how it relates to Heller. There are good reasons for their concern.

 

[PTK]

ctdonath

Good observations.

 

[Kharn]

ctdonath:
Before the Supremes, the entire question can be attacked/ruled upon. They could come back to say that there is no individual right to arms in the 2A.

Kharn

 

[Mike OTDP]

So 922(o) goes down. So what? The rest of NFA-34 is defensible. Some tuning required around the edges, but the basic requirement of a thorough background check remains. In the 74 years since the passage of NFA-34, there have been two incidents of a legally owned MG being used to commit a crime.

No, I suspect chicanery here...quite possibly behind the Bush administration's back.

 

[Outlaws]

Heller v. DC does not involve machine guns. It also does not involve other red herrings.

Good NRA bashing as usual, though.

Good NRA defending without even knowing what we are talking about. Thanks for joining the thread, now maybe you can go read the link in the first post....

 

[oldfart]

Y'know, I was pretty proud when Bill Clinton credited the gun-owners lobby for defeating Al Gore over Bush II but with stuff like this I have to wonder if we really made any headway. It may just be the pessimist in me but I'm beginning to believe that ALL politicians are anti-gun. Some are open about it while others lie about it but they're all cut from the same bolt of cloth.

All in all, it kinda makes the old argument about 'beating them at the ballot box' an empty threat, doesn't it? Other countries, with similar problems have resorted to organized terrorism to make their point. I'd hate to see that happen here and, at my age, I probably won't but my kids and grandkids may have to put up with it.

Welcome to the Third World, America!

 

[ctdonath]

So 922(o) goes down. So what?

Quite.

One must wonder why the feds are so incredibly keen on keeping machineguns banned - instead of, like all other NFA, tightly monitored. Yeah, I know the usual flippant response, but this seems to go well beyond that.

 

[doc2rn]

The machine gun ban is so important to the DOJ because they do not want to have to fork over the big $$$ it will take to equip police forces to deal with firearm owners of FA weapons systems. Not to mention that they will have to switch from shock and awe commandos to civil servants again. They fear loss of control.

 

[woerm]

doc2rn got it

Not to mention that they will have to switch from shock and awe commandos to civil servants again. They fear loss of control.

Gov't in it's current form at the fed and most local levels is very much about control,

see your local P and Z committes in action when their pet developers get cut out of projects,

all sorts of chicanery starts to happen to the non favored developer,

permits expire or are flat out denied, inspections are 'failed' usually til some one hires out of town lawyers that is.

happens here in Glitter Gulch all the time.

r

 

[shield20]

From the US Brief:

The greater the scope of the prohibition and
its impact on private firearm possession, the more difficult
it will be to defend under the Second Amendment. .... Under that analysis, the D.C. ban may well fail constitutional scrutiny.

From the DC Brief:

National limitations on what fire-arms may be possessed privately could conflict with a state’s ability to call forth a militia armed as the state sees fit. As the majority below recognized, the Amendment ensures “that citizens would not be barred from keeping the arms they would need when called forth for militia duty."

Somewhere in the middle we will find the truth; that federal AND State AND regional bans are unconstitutional. That the ONLY "reasonable restrictions" are those based on suspending this individual right via due process for just cause.

 

[Kharn]

Both the SG and DC are trying to throw the other's laws under the bus in order to save their own.

Hopefully, neither will be successful.

Kharn

 

[SWMAN]

Many elected officials promote gun control to avoid dealing with hard issues, a good ruling will force them to deal with hard issues, or try to find another scapegoat.

Its easier to say its the evil guns than our lack standards and care in raising our kids that lead to criminal behavoir.

 

[RP88]

well, I learned a bunch from this topic and the link; particularly about how individual rights have already been upheld.

Even if this case were to allow a movement against the MG ban, MGs could still be tightly regulated as they were before being import-banned and then banned outright.

What I'm getting out of this is either we win with minimal mess to be cleaned up, or we win and see Heller pt. 2 come up against other bans such as the ones on machine guns (thus, creating a fair mess). I hope it is not the latter due to my mixed feelings on machine guns and the fact that this country has other things to worry about other than guns at this time. If we can keep our handguns and rifles we have now via elimination of any actual threats to our rights, then that should be a fair settlement while we wait and decide whats best to aim for after that. (always clean up a mess before you go and make a new one)

 

[alan]

Funny, but I had thought that the role of the federal government was to secure the rights of the people. Seems as if some in government have confused the securing of the people's rights with attacks thereon, with attempts to destroy the rights of the people. How come this??

 

[molonlabe]

As much as I would like to believe in the success of the Heller case, I think the ultimate goal is to ban all firearms. Collapse of either with the monetary, fuel or food system cannot be controlled or dealt with in any effective manner with arms in the hands of the people. I leave it in with your imagination to infer what dealt with means.

Just my 2 cents and I hope I am wrong about this.

 

[RP88]

you mean, the gov't is trying to take our rights because they're afraid that they'll destroy the country and wont be able to fix it with guns around? Even without firearms in existence, they couldnt deal with such a situation anyway if it were so that it would leave our country in ruins.

Also, its been said before by many gun control advocates that banning of all privately owned firearms of any kind is the ultimate goal for them; many have a much ruder sentiment to their phrasing of it.

 

[green-grizzly]

I think this is the crux of the DOJ's argument:

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. Cf. Burdick v. Takushi, 504 U.S. 428, 434 (1992). Under that intermediate level of review, the “rigorousness” of the inquiry depends on the degree of the burden on protected conduct, and important regulatory interests are typically sufficient to justify reasonable restrictions. Ibid.

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 machineguns. However, the text and history of the Second Amendment point to a more flexible standard of review. Just as the Second Congress expressed judgments about what “Arms” were appropriate for certain members of the militia, Congress today retains discretion in regulating “Arms,” including those with military uses, in ways that further legitimate government interests. Under an appropriate standard of review, existing federal regulations, such as the prohibition on machineguns, readily pass constitutional muster.

Basically, because DC's ban goes beyond restrictions on the RKBA that existed at the time the constitution was enacted (felons, minors, insane, etc.), the court should apply an intermediate level of scrutiny. It is not difficult for the government to meet that burden. They just have to show that there is not much impact on the citizen ("just call 911") and that the restriction is important ("for the children!"). If the Supreme Court adopts the DOJ's approach the 2nd amendment will do nothing to restore our rights, although it may provide some cover from drastic future encroachments.

The DOJ and the court of appeals both agree that reasonable regulations of the RKBA is acceptable. Where they part ways is that that the court of appeals says that an outright ban on pistols, rifles and shotguns is automatically unconstitutional. The guns can not be made illegal, although certain person may not be able to possess them. The DOJ wants even the types of weapons that are legal to be subject to regulation, because they want government to be able to prevent the citizenry from possessing weapons perceived as too dangerous. The problem is that you could then use this reasoning to ban all firearms if you you got a court to believe you had a really good reason to do so. That could not happen under the court of appeals approach.

It is hard to square the DOJ's brief with Miller.

The first part of the brief discussing why the second amendment is an individual right is excellent.

 

[stevelyn]

Hey there Stevelyn, how do you like those Aleutian Islands?

They blow.............er I mean it blows too often and there are no trees. I'm actually still on the tip of the AK PEN on the Pacific side. More technically we're part of the Shumagins, but the indigenous folk and culture are all Aleut or Russian.

My take is the govt will protect the govt's interests and maintaining the People's right to keep and bear arms isn't in govt's best interest or part of the agenda.

If the SCROTUS has to engage in creative interpretation of 2A to achieve that end then that's what they'll do.

They didn't get to where they are by not compromising their principles. They owe someone for their positions and as Shrub said about the Constitution......"It's just a goddamned piece of paper".