XCR Forum banner
1 - 4 of 4 Posts

· Registered
163 Posts
Discussion Starter · #1 ·
Its seems that our own Govt believes that the DC Ban should stand and is not a violation of our rights. :duh:

U.S. supports gun rights, but more narrowly
Posted By Lyle Denniston

January 11, 2008 @ 10:19 pm

The Bush Administration urged the Supreme Court Friday night to rule that the Second Amendment protects an individual right to have a gun for private use, but argued that the D.C. Circuit Court went too far in applying that personal right view. The appeals court, the new brief said, seems to have adopted a “more categorical approach” to gun control laws than is proper.

In a move designed at least in part to protect federal gun laws from being struck down, the new brief urged the Justices to uphold an individual right to a gun and adopt a flexible standard for judging specific laws, and then return the pending test case from the District of Columbia back to the Circuit Court for another look. Tellingly, the government’s friend-of-court brief was not labeled as a supporting brief for either side in the case of District of Columbia v. Heller (07-290).

The government brief can be downloaded [1] here.

Filed by U.S. Solicitor General Paul D. Clement, the brief took no direct position on the constitutionality of the 1976 D.C. law that is at issue: a flat ban on private possession of handguns. The Circuit Court, in a ruling last March, struck down the law, finding that it violates the Second Amendment on the understanding that the Amendment protects an individual, not a collective, right. Clement did comment that the D.C. pistol ban “may well fail” if tested under the approach he recommended, but he did not argue that it would necessarily fail.

“The Court,” Clement summed up at the close of the brief, “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 [to the Circuit Court}.”

The “more flexible standard of review” the brief proposed is, according to the government, a form of “heightened scrutiny.” Here is how it is spelled out:

“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.”

The brief added: “Under that intermediate level of review, the ‘rigorousness’ of the inquiry depends on the degree of the burden on protected conduct, and important regulatory intgerests are typically sufficient to justify reasonable restrictions.”

The D.C. handgun ban, the brief contended, is the kind of gun control that would call for the kind of “close scrutiny” being proposed. That law, it said, bans “a commonly-used and commonly-possessed firearm in a way that has no grounding in the Framing-era practice.”

The Circuit Court, Clement commented, “appears to have adopted a more categorical approach” that he was advocating. The Circuit Court decision, he said, “could be read to hold that the Second Amendment categorically prohibits 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.”

The brief continued: “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.” Some machineguns that are banned by federal law might meet the D.C. law’s definition of a pistol, the brief said.

It was not at all surprising that the Administration brief supported the individual rights view of the Amendment’s scope. Although the Justice Department had taken no part in the lower courts as they weighed the D.C. gun ban, then-Attorney General John Ashcroft in 2001 publicly adopted the individual rights view.

And neither was it a surprise that the position the Department took was motivated at least in considerable part by the felt need to assure continued enforcement of some federal gun control laws. Even though the government for more than six years has held the individual rights view of the Amendment, it has yet to take a position in a court case that a particular gun law was invalid under that view.

In arguing in the end that the case should be returned to the Circuit Court, Clement’s brief said that there are factual and legal issues that the lower court did not consider in its March ruling.

It suggested that one issue that deserves further airing is the practical impact of another part of the D.C. gun law that requires that any other kind of firearm kept in the home be kept unloaded or with a trigger lock in place. The local man who challenged the gun law has argued that the trigger lock provision may bar a resident of the city from even having a working shotgun or rifle at home.

Whether the law puts a “functional firearm” out of local residents’ reach, the government brief said, may depend on whether the local law can be read to allow possession at home of a working long gun.

If the law can be read that way, there would then arise, Clement suggested, the factual issue of whether the guns that remained available are not as well suited to self-defense in the home as a handgun would be.

Those questions, the brief said, are better left, in the first instance, to the lower courts. In a footnote at the end of the brief, Clement suggested that, if the Circuit Court ultimately held that some or all of the D.C. gun law’s restrictions are unconstitutional, “a remand will also give that court the opportunity to state more precisely the scope of its remedial holding” — that is, just what parts of the law are being invalidated.

Friday was the due day for friend-of-court briefs by groups supporting the D.C. government’s appeal in the case, or briefs by anyone joining in the case without taking sides with either the local government or with the gun law challengers. As of Friday night, 19 briefs had been filed to support the District of Columbia appeal.

Briefs by the gun law’s challengers, and friend-of-court briefs supporting that side, are due in about a month. The case is expected to be heard by the Court in March.


Article printed from SCOTUSblog: http://www.scotusblog.com/wp

URL to article: http://www.scotusblog.com/wp/uncate...-more-narrowly/

· Registered
163 Posts
Discussion Starter · #2 ·
Date: Jan 12, 2008 3:18 PM
Please reply to feedback [at] FirearmsCoalition.org using appropriate email format.

In typical, "screw your friends and appease your enemies,"
Republican fashion, the Bush Justice Department has filed an amicus
brief defending the DC gun ban in the DC v. Heller case currently before
the Supreme Court. The Justice Department calls on the Court to
acknowledge the Second Amendment as an individual right, but asks that
the Circuit Court's decision in the case be reversed and remanded
(thrown out and sent back to the Circuit Court) with instructions to
determine whether DC's laws unreasonably restrict resident's ability to
exercise their rights. It appears that the "pro-gun," Republican
Department of Justice fears that any decision from the Supreme Court
which held that banning any class of weapons was an infringement of the
Second Amendment, might open the door to challenges against bans on
dreaded machineguns.

It is worth noting that Congress recognized back in 1934 that
banning machineguns would be a violation of the Second Amendment so they
instead devised a plan whereby they could control such firearms with
burdensome taxes and paperwork restrictions. It was not until 1986 that
the first ever federal firearms ban was enacted when NRA accepted a ban
on private purchase or possession of any newly manufactured machineguns
as an amendment to the McClure-Volkmer, Firearms Owner's Protection
Act. At that time, NRA-ILA chief, 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 and receives a
compensation totaling more than a million dollars a year, no bill to
repeal the '86 ban has ever been put forward by NRA.
If the Supreme Court follows the government's request in this
matter, no firm decision about the practical value of the Second
Amendment could be expected for at least another four years; many
thousands of dollars, and at least two new Justices from now.
Republican politicians and operatives across the country need to
hear and feel the wrath of GunVoters over this latest in a long list of
betrayals from our oh-so-reliable, pro-gun friends. Write to the
President, the Vice-President, your Republican Senators and
Representatives, your local Republican officials and your County Central
Committee and let them know that your anger will be reflected at the
ballot box.

This is just another example of why Republicans like Rudy Giuliani,
Mitt Romney, and John McCain are completely unacceptable presidential
candidates and why Republicans are likely to lose the Presidency and
additional Congressional seats due to a poor showing from GunVoters in
the coming elections.


We will continue to keep you informed about the important events in
the gun rights fight. Thank you for staying on the front lines and
helping us play a role. If you do not currently subscribe to our
bi-monthly newsletter, The Hard Corps Report, or have not made a
contribution to our cause recently, we would appreciate your help right
now. Contributions can be made through our web site:
www.FirearmsCoalition.org, over the phone at 703-753-0424, or by mail to
The Firearms Coalition, PO Box 3313, Manassas, VA 20108.
Your support is the only way we can stay in the fight so please help
if you can.

Yours for the Second Amendment,

Jeff Knox
The Firearms Coalition

P.S. Special thanks to Dave Hardy, Second Amendment scholar and good
friend (http://armsandthelaw.com/archives/2...rnment_file.php)
for alerting us to this important development and giving us the, "screw
your friends and appease your enemies," quote. JAK

· Registered
6,835 Posts
Here is what the NRA has to say about it>>>

Statement of the National Rifle Association
By Wayne LaPierre And Chris Cox
On The Pending U.S. Supreme Court Case
In the coming months, the U.S. Supreme Court will consider the constitutionality of Washington, D.C.'s ban on handgun ownership and self-defense in law-abiding residents' homes. The Court will first address the question of whether the Second Amendment to the U.S. Constitution, as embodied in the Bill of Rights, protects the rights of individuals or a right of the government. If the Court agrees that this is an individual right, they will then determine if D.C.'s self-defense and handgun bans are constitutional.

The position of the National Rifle Association is clear. The Second Amendment protects the fundamental, individual right of law-abiding citizens to own firearms for any lawful purpose. Further, any law infringing this freedom, including a ban on self-defense and handgun ownership, is unconstitutional and provides no benefit to curbing crime. Rather, these types of restrictions only leave the law-abiding more susceptible to criminal attack.

The U.S. Government, through its Solicitor General, has filed an amicus brief in this case. We applaud the government's recognition that the Second Amendment protects a fundamental, individual right that is "central to the preservation of liberty." The brief also correctly recognizes that the D.C. statutes ban "a commonly-used and commonly-possessed firearm in a way that has no grounding in Framing-era practice," the Second Amendment applies to the District of Columbia, is not restricted to service in a militia and secures the natural right of self-defense.

However, the government's position is also that a "heightened" level of judicial scrutiny should be applied to these questions. The National Rifle Association believes that the Court should use the highest level of scrutiny in reviewing the D.C. gun ban. We further believe a complete ban on handgun ownership and self-defense in one's own home does not pass ANY level of judicial scrutiny. Even the government agrees that "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." A complete ban is the kind of infringement that is the greatest in scope. The U.S. Court of Appeals for the D.C. Circuit correctly ruled that D.C.'s statutes are unconstitutional. We strongly believe the ruling should be upheld by the U.S. Supreme Court.

The National Rifle Association will be filing an amicus brief in this case and will provide additional information to our members as this case moves through the legal process.

Please refer questions to NRA Grassroots at 1-800-392-8683.
1 - 4 of 4 Posts
This is an older thread, you may not receive a response, and could be reviving an old thread. Please consider creating a new thread.