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Thought on Solicitor General's position
From Pres. Bush's 2004 Platform:
"Republicans and President Bush strongly support an individual right to own guns, which is explicitly protected by the Constitution's Second Amendment."
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"We believe the 2nd Amendment and all the rights guaranteed by it should enable law-abiding citizens throughout the country to own firearms in their homes for self-defense...We oppose federal licensing of lawabiding gun owners & national gun registration as a violation of the 2nd Amendment and an invasion of privacy of honest citizens."
The SG's position may be consistent with the first sentence, but it's hard to see how it's consistent with the remainder. The core issue in Heller is ... owning firearms in the home for self-defense. If even a handgun ban is a difficult issue under the SG's legal position (hence requiring remand for gathering evidence), it's hard to see why licensing and registration would qualify as clear 2nd Amendment violations, as the Platform states.
In short, when it really comes down to the wire, the Administration turns its back on the Platform with which it won election.
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By implication of the Inter-American Commission on Human Rights (IACHR) Questionaire it can be implied that the Heller case has the attention of the IACHR.
IACHR CONSULTS WITH STATES AND CIVIL SOCIETY ORGANIZATIONS
A QUESTIONNAIRE ON CITIZEN SECURITY AND HUMAN RIGHTS
http://www.cidh.org/Seguridad_Ciudadana_Consulta.eng.htm
On one side are gun rights advocates who argue that the Second Amendment gives individuals the right to “keep and bear arms.” On the other side are gun control advocates, who believe that the Second Amendment only gives individuals associated with a militia this right.
I wasn't aware that we were arguing that the BOR gives us rights.
If the 2004 Republican platform conflicts with the SG Heller brief, then why can't Bush be personally sued for breach of promise, false advertising or another action based upon any number of legal theories?
David correctly identifies the point where the SG's brief shifts from being merely a missed opportunity to a slap in the face: the call for a remand.
First, it reveals that the executive branch is unwilling even to concede that a total ban on handguns would violate the Second Amendment. It would have been easy to write a brief that said: "The D.C. Circuit applied too strict a standard of scrutiny, so this Court should correct that error in its opinion. However, D.C.'s laws flunk even intermediate scrutiny, so the judgment below should still be affirmed." They deliberately did not do so. Gun rights proponents might not have been overjoyed by such a brief, but it wouldn't have been a big surprise, and certainly wouldn't have caused the uproar that the actual brief did.
Second, it took 70 years to get the U.S. Supreme Court to accept a case likely to yield a square holding on the interpretation of the Second Amendment. It's profoundly disappointing to see the SG ask for that case not to be resolved on the merits, but instead bounced back to the lower courts for more litigation.
The Solicitor General has authority to represent the United States before the Supreme Court in cases "in which the United States is interested."1 He also has broad power to supervise litigation conducted in the lower courts by lawyers representing the United States, its agencies, and its officials.2 The Solicitor General is often -- and correctly -- said to have special responsibilities to the Supreme Court, responsibilities different in kind from those of lawyers representing private clients. But the interesting and difficult questions about the Solicitor General's role do not directly concern his responsibilities to the Supreme Court ("his" because no woman has yet been appointed Solicitor General -- a situation that will surely change soon). Rather, the difficult questions have to do with the Solicitor General's responsibilities as a member of the Executive Branch. To what extent is he, like most other high-ranking executive branch officials, properly concerned with carrying out the policies of the Administration in which he serves? Or should he, instead, remain aloof from Administration policies and concern himself only with the institutional interests of the federal government? And if the latter, how does one define the institutional interests of the federal government?
It appears to be the personalities of both Bushes, father and son, that whatever one has said or promised in the past is no longer operative. W's position on the 2nd Amendment is just one of many abandonments of past pronouncements. Others inlcude, free trade, campaign finance, Supreme Court appointments, the Bush doctrine on terrorism and states that give aid and comfort to terrorists, the prerequisites to be met before support for a Palestinian state, etc. etc. And not forgetting, of course, Bush 41's "no new taxes" pledge. With the Bushes it's always, "that was then and this is now."