Bush DOJ shoots at the Second Amendment

[BradLohaus]

http://article.nationalreview.com/?q=ZmIyM2ZlMDhkOTFkMTc5ZGZhMjU0ZDE4N2QzN2U2YzM=

A lot of Americans who believe in the right to own guns were very disappointed this weekend. On Friday, the Bush administration’s Justice Department entered into the fray over the District of Columbia’s 1976 handgun ban by filing a brief to the Supreme Court that effectively supports the ban. The administration pays lip service to the notion that the Second Amendment protects gun ownership as an “individual right,” but their brief leaves the term essentially meaningless...

As the lead to an article in the Los Angeles Times said Sunday, “gun-control advocates never expected to get a boost from the Bush administration.”

[Wild Cobra]

I think that's an incorrect interpretation, but I didn't read the entire brief. I just skimmed it fast:

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE (http://armsandthelaw.com/archives/07-290tsacUnitedStates.pdf)

I may fully read it when I have the time to comprehend it.

[FromWayDowntown]

As I read it, the government's argument says that the 2nd Amendment right protects an individual right to gun ownership, but also admits that there are important governmental purposes to be achieved by limiting ownership (and thereby limiting the right) in some circumstances.

The government ultimately argues that the case should be sent back to a lower court (remanded) for reconsideration because, the government says, the lower courts in this case applied the wrong standards for considering the constitutionality of the prohibitory law.

It argues that the lower courts held, in essence that limitations on gun ownership are categorically unconstitutional -- that creates a big problem for the government, which wants to enforce certain gun-control regimes that it deems important.

The government, therefore, asks the Supreme Court to conclude that limitations on Second Amendment rights should be analyzed by balancing the interests of the individual in gun ownership with the governmental interests in maintaining certain limitations on ownership. The government allows that the D.C. ordinance might be unconstitutional, but asks for that decision to be made in light of a new legal standard.

[Wild Cobra]

As I read it, the government's argument says that the 2nd Amendment right protects an individual right to gun ownership, but also admits that there are important governmental purposes to be achieved by limiting ownership (and thereby limiting the right) in some circumstances.

The government ultimately argues that the case should be sent back to a lower court (remanded) for reconsideration because, the government says, the lower courts in this case applied the wrong standards for considering the constitutionality of the prohibitory law.

It argues that the lower courts held, in essence that limitations on gun ownership are categorically unconstitutional -- that creates a big problem for the government, which wants to enforce certain gun-control regimes that it deems important.

Thanx

The government, therefore, asks the Supreme Court to conclude that limitations on Second Amendment rights should be analyzed by balancing the interests of the individual in gun ownership with the governmental interests in maintaining certain limitations on ownership. The government allows that the D.C. ordinance might be unconstitutional, but asks for that decision to be made in light of a new legal standard.
That's what I thought, but like I said, I only scanned it.

Doesn't seem like it's advocating the ban to me...

Seemed like it was pointing out the other rulings may be flawed!

[Oh, Gee!!]

That's what I thought, but like I said, I only scanned it.


:lol

sure you did. :lol

[FromWayDowntown]

That's what I thought, but like I said, I only scanned it.

Doesn't seem like it's advocating the ban to me...

Seemed like it was pointing out the other rulings may be flawed!

It's certainly not arguing that 2nd Amendment rights are more significant than any governmental interest -- the Solicitor's brief takes some pains to defend the constitutionality of other gun limitations.

I think the more specific point is to ask the Supreme Court to come up with an intermediate scrutiny test for reviewing 2nd Amendment cases -- one that doesn't necessarily favor the government or the individual. In constitutional law, a significant factor in assessing the constitutionality of governmental acts is the standard for reviewing those enactments. In some cases, courts employ a strict scrutiny test, which presumptively favors the individual; the test permits the governmental action to continue only if there is a compelling interest to be achieved by the governmental act and that interest is achieved by using the least instrusive means. In other cases involving less individualistic rights, courts ask whether the governmental action is rationally related to achieving a legitimate goal of government. In the middle are cases in which a law is upheld only if the government can demonstrate that the law seeks to achieve an important governmental interest and is substantially related to achieving that interest ("intermediate scrutiny").

Here, the government is arguing that courts should use the intermediate standard to assess gun control laws -- it must if it is to have any opportunity to regulate firearms without completely eviscerating any chance that there is an individual right to bear arms. The government argues that the problem in this case isn't necessarily the result of the decisions below -- the problem is the standard used to reach those results. It argues that the Supreme Court should articulate an intermediate scrutiny standard. It's not asking the Supreme Court to apply that standard to this case, though. It's asking the Court to send the case back to the lower courts and have those courts reconsider the constitutionality of the ordinance in light of the proper standard.

I'm not sure that either side of the 2nd Amendment debate is overjoyed at the government's position on this, but it strikes me as a sensible means to strike a necessary balance.