« McCain, and an Oregon iniitiative on gun shows | Main | Interesting Taser development »
More on the Solicitor General's brief
In the WashPo.
"If the justices accept that advice when they hear the case in the spring, it could mean additional years of litigation over the controversial Second Amendment and could undo a ruling that was a seminal victory for gun rights enthusiasts.
Some were livid. One conservative Web site said the administration had "blundered in catastrophic fashion," and another turned Clement, usually a pinup for conservative legal scholars, into a digital dartboard. Rep. Eric Cantor (Va.), the Republicans' chief deputy whip, called the brief "just outrageous," and Republican presidential candidate and former senator Fred D. Thompson (Tenn.) accused the Justice Department of "overlawyering" the issue."
UPDATE: the Heritage Foundation weights in. A very good and objective piece. It is a good thing that the gov' t concedes there is an individual right, a proposition that has been hotly contested. But a bad thing that the gov't wants a limited standard of review. That the gov't concedes a right against itself is entitled to some deference. That it wants to limit that right is not; what else can we expect the Dep't of Justice to argue? We can thus hope that the Court considers the first significant, and the second "so what else is new?"
Hat tip to reader Ambiguous ambiguae...
ANOTHER update: here's, I think, a rational and balanced take on it. Hat tip to reader Jack Anderson.
9 Comments | Leave a comment
"It is no minor event when the national government clearly and forcefully admits to the highest court in the land that Americans enjoy a constitutional right that has been hotly debated for years, especially when that constitutional right is a limit on the government’s own power."
Exactly what constitutional rights are there that aren't a limit on the government's power?
Letalis,
Which is Constitutional why??
Gregg:
I didn't say the NFA and 922(o) were constitutional. The point is that they are a helluva lot more likely to be determined constitutional under intermediate scrutiny than strict scrutiny. Which is why the Bush DOJ wants intermediate scrutiny. Nobody in the Bush family has ever been our friend.
"Given the government's obligation to try to save as many federal gun statutes as possible, it is not surprising that the brief also urges the Supreme Court to limit the same individual right it asks the court to recognize."
Oh, bosh!
The strict scrutiny test is not inevitably fatal, especially for acts of Congress. The farther the law in question gets from race, religion, and speech, the higher the survival rate. Expect the important portions of the NFA and the GCA to survive.
No important federal gun statute is threatened (and NONE are at issue in Heller) or likely to be threatened. Oh, the courts might decide that 30 years of clean living should cancel out a bar fight conviction at age 18 but they won't reverse the 1934 machine gun law as the SG claims to fear.
"Courts routinely uphold laws when applying strict scrutiny, and they do so in every major area of law in which they use the test. [u]Overall[/u], 30 percent of all applications of strict scrutiny--nearly one in three--result in the challenged law being upheld [over 60% in some areas]. Rather than “fatal in fact,” strict scrutiny is survivable in fact."
Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 Vand. L. Rev. 793, 796 (2006).
This makes the SG's brief [b]so politically stupid[/b] for a Republican administration (in an election year too). I can understand BATF wetting it's pants (they might lose power, employees, and budget) but I thought better of the SG's Office.
DOJ had no need to enter this case. The Republican policymakers, like the SG and the WH staff, should have recognized that.
I guess Heritage's WebMemo is designed to give the White House some cover for it's blatant political stupidity.
[b]This action IS gonna hurt.[/b] For example, I have no need to continue voting for the Republican lavish spending, social reformers who call themselves "conservatives" because they can fool some of the people much of the time. If Heller results in a right without substance, I'll remember in November. I'll even spend money helping others to remember our backstabbing "conservative" friends in the REPUBLICAN administration.
P. S. Wasn't it the Heritage Foundation President who told Daddy Bush during a limo ride in 1990 that it was OK to issue the Executive Order banning foreign-made "assault rifles" because "Conservatives won't mind?"
30YEARPROF:
If the DOJ gets what it wants, remand, you won't know the final outcome by November.
"If the DOJ gets what it wants, remand, you won't know the final outcome by November.'
I'll know enough to plot my political course.
Anybody remember a little case called "Kelo" wherein the taking of property by eminent domain for private profit became an established principle, so long as the government says it's in the general public interest? Or the McCain Feingold Incumbent Protection and FreeSpeech Limitation Act? I believe those two were products of the current court or with only a couple of changes.
So much for responsible judges who should know better.
What part of "Congress shall make no law..." or "shall not be infringed"...do these folks not under-frigging-stand?
The DC Examiner had a good editorial about the USG's Heller brief:
"...Its argument amounts to this: Because some "pistols" are machine guns (or "machineguns" as the brief oddly puts it, repeatedly), and because the federal government has a compelling interest in limiting possession of weapons like Uzis, the courts shouldn't invalidate a law that keeps Uzis off the streets - even if it is unconstitutional and prevents law-abiding citizens from using firearms to protect their homes and families.
This logic is backwards. The Supreme Court's job is not to ask a lower court to find ways to salvage an unconstitutional law simply to preserve application of the law in a particular case. Instead, its job is to decide if the law violates the Constitution—and if so, to nullify it, while leaving the appropriate legislative body, not a court, to draft a new law that passes constitutional muster...."
www.examiner.com/a-1170688~Bush_shows_poor_aim_on_D_C__gun_law.html
Once again, and I will never tire of saying this because it is true, the SG's brief is 100% about the NFA and 922(o)'s ban on new transferable machine guns.