Bush Files Amicus Brief Questioning D.C. Ruling

This is a discussion on Bush Files Amicus Brief Questioning D.C. Ruling within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; As featured at the 'Of Arms & the Law' blog: Government files amicus -- on DC's side! Posted by David Hardy 11 January 2008 ...

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Thread: Bush Files Amicus Brief Questioning D.C. Ruling

  1. #1
    VIP Member Array Janq's Avatar
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    Government files amicus, on DC's side!

    As featured at the 'Of Arms & the Law' blog:

    Government files amicus -- on DC's side!
    Posted by David Hardy 11 January 2008 08:41 PM

    http://armsandthelaw.com/archives/07...itedStates.pdf

    Quick read: 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. Some quotes:

    "When, as here, a law directly limits the private pos-
    session 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 con-
    siders (a) the practical impact of the challenged restric-
    tions 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 enforce-
    ment of the relevant restriction.

    The court of appeals, by contrast, appears to have
    adopted a more categorical approach. The court’s deci-
    sion 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 prohibit-
    ing the possession of certain firearms, including
    machineguns. However, the text and history of the Sec-
    ond Amendment point to a more flexible standard of
    review."

    :The determi-
    nation whether those laws deprive respondent of a func-
    tional firearm depends substantially on whether D.C.’s
    trigger-lock provision, D.C. Code 7-2507.02, can prop-
    erly be interpreted (as petitioners contend, see Br. 56)
    in a manner that allows respondent to possess a func-
    tional long gun in his home.8 And if the trigger-lock pro-
    vision can be construed in such a manner, the courts
    below would be required to address the factual is-
    sue—not fully explored during the prior course of the
    litigation—whether the firearms that are lawfully avail-
    able 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.9
    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 ade-
    quate, initial examination of those issues is typically
    better reserved for the lower courts."

    "CONCLUSION
    The Court should affirm that the Second Amend-
    ment, 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) Dept 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.

    Parker v. DC - Of Arms and the Law: Parker v. DC Archives

    Source - Of Arms and the Law

    - Janq
    "Killers who are not deterred by laws against murder are not going to be deterred by laws against guns. " - Robert A. Levy

    "A license to carry a concealed weapon does not make you a free-lance policeman." - Florida Div. of Licensing

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  3. #2
    New Member Array Fast Metal's Avatar
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    Bush Files Amicus Brief Questioning D.C. Ruling

    I was very shocked to read this morning, that the Bush Justice Department filed an Amicus Brief, yesterday, along with 20 other jurisdictions, questioning the overturning by the lower D.C. court ruling declaring the D.C. gun prohibition unconstitutional. Very Disappointing.

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    Distinguished Member Array bandit383's Avatar
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    Quote Originally Posted by Janq View Post
    There was a saying during my years in DC that the GOP operated on two principles: screw your friends and appease your enemies. Yup.

    Parker v. DC - Of Arms and the Law: Parker v. DC Archives

    - Janq
    10 sq miles surrounded by reality...where people stab you in the eye and your best friends stab you in the eye with a smile on their face.

    Rick

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    Distinguished Member Array randytulsa2's Avatar
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    I am astounded.

    Being of the other political persuasion, I never thought much of Dubya, but was always thankful that while he was in power he would tend to that part of his base which thought more or less like I did on guns.

    Now he's stabbed a goodly number of his own people in the back.

    I really don't know what to think, 'cause whatever else you can say about him that's bad (and there's plenty, but this is NOT the place), he's always appeared to me to be fiercely loyal to those who've helped him out....
    "...bad decisions that turn out well often make heroes."


    Gary D. Mitchell, A Sniper's Journey: The Truth About the Man and the Rifle, P. 103, NAL Caliber books, 2006, 1st Ed.

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    VIP Member Array cphilip's Avatar
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    Interesting... an admission that it is an individual right then goes on to explain how they want to justify intrusions into the ability to bare them. Shouldn't hold any water. It either is or it isn't. And arguing that one could own one but the government should be able to configure the terms of ownership in such a way as to make them completely useless to own! Can't see that holding up to any scrutiny. I am, however, very optimistic that their admission of the individual right portion of that is going to be a real gold mine! The Glass is half full!

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    Like I've said in some other threads.

    It is going to come down to states rights! SCOTUS will find that yes, the 2A does mean individuals...BUT, the states have the right to limit firearms however they see fit.

    Nothing will change!

    (It's a good thing that a number of states have 'individual' clauses in their state Constitutions.)
    Quemadmodum gladius neminem occidit, occidentis telum est.-Seneca

    "If you carry a gun, people will call you paranoid. If I have a gun, what do I have to be paranoid about?" -Clint Smith

    "An unarmed man can only flee from evil, and evil is not overcome by fleeing from it." -Jeff Cooper

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    VIP Member Array edr9x23super's Avatar
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    Don't read too much into this; this is as much political doublespeak by the Bush administration as anything else. The government, by making the statement supporting an individual right, says it all - because that is precisely the DC assertion, is that the RKBA is only a collective right to be regulated by any municipal entity rather than a federally protected individual right. What we have going on here is reverse psychology on Dubya's part. His spokespersons come out and say 2 things, yet cover the issue. Like renewing the AWB. George W. said he would sign it if it reached his desk. Immediately, NRA folks began pressuring their congressmen to let the ban expire, which they did. This was a deliberate manuever by him to insure that it would not be renewed. I know this for a fact, because my brother-in-law is a lobbyist for the NRA and told me the inside story. The Bush administration employed a similar tactic when things looked bleak for the republicans a few months back in election politics. Remember that? what did Dubya do? He forced a whole bunch of democrats take a stand on an issue, one that would force their hands and show everyone where they stood. The issue? IMMIGRATION. What happened? Congress ended up with even lower approval ratings than the President, and the tables have in my opinion been turned on the democrats. Ever since then, George W. has managed to thwart the democrat-controlled congress at every turn. have you seen any gun-banning legislation pass since the demos took over? it should sail right on through, because they control both houses. they are virtually veto-proof at this point. yet it hasn't happened. What about tax cuts being revoked. What about tax increases, pulling our troops out of Iraq? they have accomplished none of this, and George W. is winning the war in Iraq by the way.

    So, in summary, I don't think George W. is hanging us out to dry on this one. I think that he is employing the same tactics he has used repeatedly to get things done on inflammatory issues, by manipulating people as he always has. The Demos greatest weapons have aways been an apathetic voter base, an uninformed or uneducated public and having control. Our president is merely fighting with the tools he has (politically active conservatives and gun owners) and continues to win no matter what the demos throw at him.

    His greatest victories my well go down in history as:

    His progress in Iraq may well be the turning point in the war on terror.

    His SCOTUS appointments may well make the most important decision on the RKBA in our history; they may affirm that it IS an individual right, and we will see a whole bunch of gun laws open for court challenges.

    So, you see, he isn't that dumb after all. it is all about knowing when and how to fight.....
    "Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined". - Patrick Henry

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    Distinguished Member Array randytulsa2's Avatar
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    edr9X23Super:

    Dude, I hope you're right. I prefer to think like you on this one.
    "...bad decisions that turn out well often make heroes."


    Gary D. Mitchell, A Sniper's Journey: The Truth About the Man and the Rifle, P. 103, NAL Caliber books, 2006, 1st Ed.

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    Member Array Obiwan's Avatar
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    I agree. You've stated it very eloquently. I really hope that you're right!
    When seconds count, help is minutes away!

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    I see it as Fence Sitting in search of a middle ground. If you read the brief, it tends to side more on the Pro side BUT my guess is that since DC does not have a real legislature, they are afraid what kind of can of worms a pro-2A decision may open in regards to guns and other items. I think it is trying to achieve a compromise as to say: "Yes it is restrictive but we can find a way to make everybody happy." It also, IMHO, lays the blame on the lower court who ignored the relevance of the 2A and made the Superior Court take a harder stance in its review of the DC Law and thus found it in violation.
    You have to make the shot when fire is smoking, people are screaming, dogs are barking, kids are crying and sirens are coming.
    Randy Cain.

    Ego will kill you. Leave it at home.
    Signed: Me!

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    Distinguished Member Array SonofASniper's Avatar
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    The way I read it, it could be summarized like this:

    "Yes it is an individual right secured by the Constitution, but we still want our power to take it away when we feel the need to."
    I will support gun control when you can guarantee all guns are removed from this planet. That includes military and law enforcement. When you can accomplish that, then I will be the last person to lay down my gun. Then I will carry the weapon that replaces the gun.

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    Member Array tabsr's Avatar
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    Super

    Everybody is super positive G jounior is dumb and slow. Apparently, his next approach is after leaving office, to totally tie the hands of any possible Dem president from leaving Iraq in the next 3 years. He does play the political game well and Super is correct in his assessment. Nancy and Harry are flummoxed.
    "Politicians and Bureaucrats, depend very much on the complicity of their victims, and like criminals, are flummoxed when we don't play the victim role."

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    Senior Member Array bobcat35's Avatar
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    ok so the bill or rights ARE individual rights BUT they are subject to state regulation. so lets get a law passed banning brady bunch-like propoganda and see how long it will stand.
    "Nothing in life is so exhilarating as to be shot at without result."
    -Winston Churchill
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    -Inara, firefly

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    Member Array ellerblr's Avatar
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    A couple of thoughts....

    First, I love how they argue 'the constitution allows for reasonable regulation of rights, because look at the laws we have against machine guns.' To which I sarcastically respond, 'Yes, since we have a law that goes against the wording in the constitution, it's constitutional, because those are constitutional laws.'

    Second, I also love how they admit if the circuit court is right, we might *gasp* have to allow citizens to have machine guns.

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    VIP Member Array cphilip's Avatar
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    An admission of individual rights is good. The reference to to what states can do is almost a moot point. For one thing this is not a state. And even if it was, its the Bill or Rights that puts limits upon what the states can do. The constitution prevents the Federal Government from infringing on those rights. The Bill of Rights prevents states from doing so. It may even be enforcible on the states by the 14th amendment if one wants to ague that to deny the right is a violation of a civil right.

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