More on the DOJ and Heller

Over at Right Side of the Rainbow, word is we’re all emotional and that Bush isn’t betraying gun owners:

You could say that the administration hasnít gone far enough in defending gun rights. But I donít think you can fairly say that the administration has betrayed gun rights.

Read it all.

I disagree. Somewhat. See, the brief supports the proper interpretation of the amendment but leaves open regulation of particularly dangerous types of firearms, including certain types of handguns. That’s an awful big hole. As I said here, They say itís an individual right but, you know, not really. Now, it can be revised to They say itís an individual right until they decide it’s not.

Update 2: I guess the more accurate summary is We support the right to keep and bear arms but we like the current infringements on that right.

14 Responses to “More on the DOJ and Heller”

  1. illspirit says:

    Translation: “He’s not screwing over gun owners, he’s just defending the machine gun ban..”

    ..which screws over gun owners who want to buy new machine guns. Not to mention gun owners with non-MGs which the ATF magically reclassifies as such. In a roundabout way, he’s also screwing us over by defending the ban on imports of “non-sporting” firearms. Amongst other things.

  2. They likely outcome of the case is going to be to turn the second ammendment into something like the fifth ammendments eminent domain protections: there will be a theoretical individual right to own a firearm, but there will never be a a violation (no matter how egregious) that violates this right in practice.

  3. BobG says:

    I think Stormy Dragon is hitting it pretty close; neither party in power wants the people to have an inalienable individual right. They both want to have the power to grab guns if they deem it necessary to stay in power.
    Just my opinion.

  4. Carl in Chicago says:

    The word “amendment” contains only two “m” letters…

    I think most of us were taken back by the sheer number of briefs (20) and the amount of material contained in them (collectively, 1021 pages). It is a lot of material for any one person to read critically, let alone interpret rationally and to place in context.

    That said, what I am doing now is compiling the “Summary of Arguments” for all the briefs, and summarizing them, so I can get a broad view of what’s going on here with the amici…to see if some patterns emerge. At first glance, it seems clear that the amici for DC collectively bring up any and all ramifications imaginable. Some appear to be reasonable and legitimate, others appear to be based on the same faulty arguments as the DC brief on the merits.

    Regarding the greatly discussed DoJ brief, there has been a great deal of negative over-reaction to this (from our side, and in my mind…albeit some of it justified). First, they take a clear view that the 2A, consistent with other bill of rights amendments, protects the rights of individuals. Further, the prefatory clause does not constrain the operative clause. HOWEVER, thier notion to remand down the court is not unsubstantiated or even surprising. The fact is that there is very little case law regarding the 2A, particularly little from the SCOTUS. Miller shall be helpful, but not much. Both sides argue veheemently that Miller supports their own arguments. Miller says that the 2A must be interpreted in light of the militia purpose; likewise, it states that individuals have a right to possess militia-appropriate weapons. These are big issues, people, and complicated. It is too much to hope that one ruling by the SCOTUS (the upcoming Heller ruling) will settle these matters. That said, I disagree with the DoJ in their argument that “all current federal gun control law is legitimate, and we can not [afford to] have a SCOTUS ruling that can be used to call those federal laws into question.” In my mind, IF the constitutionality of those laws are indeed in question…then of course so too is the legitimacy of those laws. The DoJ doesn’t seem to acknowledge that, and that is not good at all.

    In all, these briefs and the groups who filed them make it crystal clear that the stakes are extremely high….higher than ever before. The case and the issues surrounding it has the potential of shaking the nation and the policies of it’s government (and policies of states and local governments) to their very core. In part, what the DoJ is saying is that “we should make damned sure we’ve thought this through, before shaking the very nation to it’s core.” And in some ways, I agree with that. I do not necessarily think that remandation would be bad….though I would prefer a strong ruling from SCOTUS so that we can get the show on the road (correcting long-standing unconstitutional law and policy decisions….even in light of the American Bar Assosiation’s argument of stare decicis…which effectively argues that established law should remain established law as a matter of course [and my reading between THEIR lines – EVEN IF such law is unconstitituional]).

    This is the big one, people.

  5. Tom says:

    In my mind, IF the constitutionality of those laws are indeed in questionÖthen of course so too is the legitimacy of those laws. The DoJ doesnít seem to acknowledge that, and that is not good at all.

    Why Carl? They really have nothing to say about it, their job is to enforce the laws that are passed and constitutional.

  6. Chris says:

    You know, I’m to the point where I think no gun control should be permitted. The slippery slope begins at “reasonable” attempts at gun control. Give them an inch, and they’ll try to take a mile. I don’t care what they deem “reasonable.” None of it is. I want an RPG-7 now. Screw ’em!

  7. Frankly I found Right Rainbow’s position poorly considered and condescending. The idea that the Bush Admin’s brief is merely trying to ensure that “drunks, lunatics, and felons” don’t suddenly get 2A protection for their firearms is bunk. Heller doesn’t make it possible for felons and the insane to own guns. Period.

  8. Mike M. says:

    Carl, I commend you for having the stomach to read over that much material.

    That being said, I would give long odds that the arguments fall into three categories:

    1. The Second Amendment does not protect an individual right.

    2. Even if it did, affirming the Heller decision would inconvenience gun control advocates.

    3. Guns are icky.

    My own assessment? All three general arguments parallel the arguments given in defense of segregation. And that is a comparison which I hope will be made.

    Now, a question….does our side incur a risk by not having as many amicus filings? I figure that we’ll have some…but not 1,000 pages worth.

  9. Mike M. says:

    I’ll add that I could see one long-shot possibility…that this is a scheme to eat up DC’s oral argument time. DOJ is in a position to grab some time – then use it to argue for an individual right.

    If we win that one, it’s a BIG step forward.

  10. I spent about 5 seconds on Right Rainbow’s blog.
    No comments = No magic

  11. Adam Lawson says:

    I’m with Standard Mischief; not interested in what someone has to say if I can’t talk back easily.

  12. anon says:

    Trojan Horse? or Wishful Thinking?

    “but leaves open regulation of particularly dangerous types of firearms, including certain types of handguns. ”

    If this argument fails for the Heller case…Does that set a precedent that could be very useful in getting rid of NFA’86?

  13. DoubleTapper says:

    How likely is Mike M’s hypotheses? How will we know?

  14. straightarrow says:

    I can read and comprehend, evidently a talent lacking at Rainbow.