Saturday, January 12, 2008

On Heller: Shot in the Back by the Bush DOJ

It's safe to say that no one, not a single person involved with or informed on the Heller vs DC Second Amendment case, foresaw that the Bush Administration would come out shooting the good guys.

While DOJ has pasted a fig leaf over its center of mass by arguing for an interpretation of the Second Amendment as an individual right, more troubling, much more troubling is its call for the Supreme Court to determine that rights recognized by the Second Amendment are uniquely open to restriction by the government.

According to the DOJ brief filed at SCOTUS in Heller

(T)he text and history of the Second Amendment point to a more flexible standard of review.
DOJ argues that only the government can determine which arms are suitable for which exercise of individual rights.

DOJ argues that SCOTUS find this (now useless) individual right and then remand the Heller case back to the DC circuit court to determine whether a ban of handguns is a legitimate restriction of such a right.

I'm at a loss. What part of the text "shall not be infringed" points to a more flexible standard of review? To my knowledge, that is the strongest directive language in the entire Constitution. What are these guys smoking?

I'm reminded of a man with whom I once (only once) did business. When I argued about the propriety of the bill he responded, "If you can't screw your friends, who can you screw?"
President Bush needs to be a little less concerned with his legacy in Gaza and a whole lot more concerned with his legacy on the streets at home.

I'll have a complete review of the brief later today. Until then, read How Many Lawyers Does It Take to Make a Circular Argument? In Heller, a Lot!


Brazentide said...

Another example of the "new tone" biting him in the rear.

Hopefully our next republican president will have learned from Bush's mistakes and do some heavy housecleaning on day one in not only the DoJ but the State Dept, and the Pentagon as well.

Anonymous said...

DOJ Brief in DC Gun Case Distorts the Truth About Machine Guns

In 1939, the Federal government perpetrated a fraud upon the Supreme Court, and it led to bad law that undermined the Second Amendment. Last week, they did it again.

In 1939 in US v. Miller, the Supreme Court ruled that because there was no evidence that a short-barreled shotgun had any relation to militia use, it was not protected under the Second Amendment. A Department of Justice brief claimed that short-barreled shotguns weren’t used by the military, when in fact they were. But because defendant Miller had disappeared and was unrepresented by counsel, this fraud went unchallenged, and became the foundation for the Miller decision.

Now, the Bush Department of Justice (DOJ) has filed a brief with the Supreme Court in the District of Columbia v. Heller case, which overturned the DC handgun ban. The DOJ brief perpetrates another critical misconception in an apparent attempt to protect a questionable federal machine gun ban from Constitutional challenge.

Since 1934, machine guns have been heavily restricted, requiring purchasers to submit to a rigorous background check including fingerprints and a $200 tax. Since 1934, about 100,000 machine guns have passed lawfully into civilian hands by this strict procedure, which no one is proposing to repeal, even though it was upheld only by the Constitutionally shaky Miller decision.

In 1986, a new federal law banned any more machine guns from ever reaching the hands of ordinary, law-abiding citizens. That meant that the existing collection of about 100,000 privately-owned machine guns would be the only ones ever to be lawfully possessed. That’s well less than one machine gun for every thousand American gun owners.

Under the 1986 federal machine gun ban, ordinary people will never again own modern rifles of the type normally carried by troops in the “standing army.” Over the generations, this collection of 100,000 legally “grandfathered” machine guns is becoming worn from use, and functionally obsolete as firearms technology advances. Because of their scarcity, these arms find their way into the hands of wealthy collectors and museums, escalating their market price to extraordinary levels at least ten times what they would be without the ban, compared to modern semi-auto equivalents.

The recent DOJ brief in Heller seeks to preserve this 1986 federal machine gun ban through the back door, even though the issue has not been litigated, and is irrelevant to the question before the court.

In the Heller opinion, the Court of Appeals ruled that banning one whole category of arms (pistols) was as impermissible as banning all firearms. The opinion pointed out that a government could ban all guns, and argue that one still had the right to keep and bear some “arms” if one could still lawfully own a saber. The DOJ brief worries that this prohibition on banning whole categories of arms would be extended to overturn the 1986 machine gun ban.

The DOJ’s brief justifies its fears of machine guns in the hands of law-abiding citizens only by unsupported references to “particularly dangerous types of firearms,” and “types of firearms that are particularly susceptible to misuse.” It raises the issue of whether a type of firearm “poses specific dangers.” The brief states that the federal machine gun ban is “carefully targeted to firearms that have little or no legitimate private purpose,” and that “the government’s interest in regulating firearms like the machine gun to protect the public safety is paramount.”

The apparent fear of the Bush DOJ is that we return to the 52-year era from 1934-1986 when any law-abiding citizen that passed a rigorous background check could purchase a new machine gun from any manufacturer willing to sell to him.

So, just how dangerous was that era? The DOJ brief doesn’t offer a shred of evidence that any lawfully-owned machine guns were misused, or ever endangered public safety. The reality is that during the 52-year period before the 1986 machine gun ban (when hundreds of thousands of conventional firearms homicides occurred) there were exactly zero homicides committed using these registered machine guns. Zero.

The DOJ brief perpetrates the misconception that lawfully-owned machine guns are a danger, when in fact they represent by far the safest category of firearms and owners. It would be a grave error if the Justices were to be misled by the false fears raised by the DOJ brief, and extended their ruling on the DC handgun ban to prop up the Constitutionally questionable 1986 federal machine gun ban.

The Constitutionality of the federal machine gun ban is in serious doubt because it bans from private hands the arms most relevant to militia service, and it undermines the benefit of an armed citizenry as a bulwark against a standing army. But the Court should limit its ruling to the case before it, and not be goaded by the DOJ to inject improper dicta about a Constitutional question that deserves to be addressed only after a proper hearing of the evidence.

In Miller, the Court ruled in the absence of proper evidence and generated questionable law. That mistake must not be repeated.