Wall St. Journal takes on Solicitor General's brief

Sigh. I'm gonna say it again. It is apparent to us thinking members of the bench and bar (The Old Ebbitt, thank you very much) that our supposed intellectual superiors at the USDOJ/OSG have positively shat themselves over the possibility that their beloved machine gun ban (922(o)) might somehow find itself in constitutional jeopardy.

Seriously people, it's liable to be a major issue for the court. What rules are we going to suggest to the court for deciding that backpack nukes and stingers should be banned but not handguns? And what about silencers and machine guns? Silencers would be very useful to a militia fighting tyranny like the french resistance was during WWII. But they could be very politically unpopular. On the other hand maybe silencers would be good for gun rights because if all the criminals used silencers then people in cities wouldn't be hearing gun fire all night.

Strict scrutiny works fine for nukes:
-Compelling state interest in not having cities explode.
-Narrowly tailored ban on nuclear bombs addresses it.
-No less restrictive way to address that compelling interest short of banning nukes.

Strict scrutiny doesn't clearly ban stinger missiles because:
-although there is a compelling state interest in not having our planes shot down, the stinger is a very low altitude weapon meant for shooting down soviet helicopters as they attacked ground targets. Planes would only be in danger when taking off and landing. And only single engine planes would be in severe danger.
-making it a crime to possess them near airports might be a less restrictive measure than banning them altogether, so this would suggest against a ban.
-but I am willing to concede that a ban might be appropriate, or maybe heavy restrictions. This is the sort of line drawing exercise that courts and legislatures are more than capable of engaging in.

I don't think there is a compelling state interest that is served by banning machine guns or silencers. There is a lot of emotional rhetoric and hollywood bullshit but when you cut through it and look at the facts, you see that they are both essentially non-entities where crime statistics or any other undesirable behaviors are concerned. If handguns are protected, machine guns and silencers are protected. Once people sit down and look at the facts without all emotional smokescreen I really believe this will be the outcome.

You are all heading in the wrong direction. Better re-read Article 1 Section 8 which defines the missions of the militia. There are three of them - "the Militia to [1] execute the Laws of the Union, [2] suppress Insurrections and [3] repel Invasions
The right to "keep and bear weapons" necessary and proper for these ends is what "shall not be infringed." Any other approach gives the politicians and gun-grabbers (but I repeat myself) too much room for (un)reasonable regulation.

I'm sure this has probably been brought up elsewhere, but are we sure that this isn't strategery? If Heller turns out well it may increase Democrat turnout in November. By kicking it down the line another year or two, it keeps it an issue likely to motivate GOP voters.

I'm sure this has probably been brought up elsewhere, but are we sure that this isn't strategery?

I hesitate to think so, and certainly hope not. In an analogous hypothetical, there are some who would shoot one foot to make the other feel better. I am not one of those types, and I don't think we ought to play games with 2A rights as a "strategy" to motivate GOP voters. I hope and trust that the thinking among us see through the soap-opera politics of this issue and focus on the fundamental individual right that the 2A protects from gov infringement.

The 2A rights issue (as well as any other rights issue) is NOT a partisan affair. If you think it is, you are viewing the issue narrowly and superficially.

> I'm sure this has probably been brought up elsewhere, but are we sure that this isn't strategery?

In what world is "Bush sold out gun rights to try to help Repubs" a good thing?

The only argument for that plan is that it doesn't make any sense (a negative result from Heller will not increase Dem turnout in any swing elections), which says more about Bush's political tin-ear than anything else.

Bush's "strategery" consists of having clueless Dems as opponents.

I asked the same thing about the DOJ brief. Politics, or rather PARTY politics has been what is best for the party, not the people for some time now and I don't rule out the strong possibility of weaseling this to maintain party power, or regain it. The folks in power seem to think less of rights then they do of terrorists. Every day you have both parties chipping away at them, law by unconstitutional law.

Speech, talk about whatever you like, just don't talk about what we ARE doing 30-60 days before an election.

Guns, shall not means we can for the "greater good."

Illegal search and seizure...yeah right, it's legal if we say it is.

9th and 10th, forget it, they're already gone.

Eventually under strict scrutiny
of all the federal firearms laws
the National Firearms Act
and FOPA manufacturing ban
are the most Unconstitutional
law under the 2nd Amendment.

Notice how H.R. 9066 and
H.R. 9471 were written as
tax acts out of the House
Ways and Means Committee
and not as outright bans
coming out of the Judiciary
Committee.

Regarding the "strategery," I'm not saying that the DOJ wants it decided against gun owners. What I'm saying is that if they can get it kicked down to the district or appellate court for "clarification" then it may be after the elections by the time it works its way back up, at which point they can declare that with the clarification they're happy to support the Second Amendment. It would be a bit of a gamble, but if they feel pretty sure it'll turn out the way they want then trading however many months of uncertainty for an increased likelihood of getting a GOP candidate elected may be a worthwhile trade.

Gun rights shouldn't be a party issue, but the fact of the matter is that gun owners know which party tends to support them and which one tends not to.