LouisianaCarry
Tactibilly
Government files amicus -- on DC's side!
Posted by David Hardy · 11 January 2008 08:41 PM
PDF here.
Quick read: Gov't says, yes, it's an individual right. BUT we join with DC in asking Court to reverse the DC Circuit, because it applied strict scrutiny to the DC law. It should only have applied an intermediate standard. That is, the legal position of the US is that DC CIrcuit was wrong, a complete ban on handguns is NOT per se unconstitutional, it all depends on how good a reason DC can prove for it. Some quotes:
"When, as here, a law directly limits the private pos-
session 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 con-
siders (a) the practical impact of the challenged restric-
tions 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 enforce-
ment of the relevant restriction.
The court of appeals, by contrast, appears to have
adopted a more categorical approach. The court’s deci-
sion could be read to hold that the Second Amendment
categorically precludes 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 prohibit-
ing the possession of certain firearms, including
machineguns. However, the text and history of the Sec-
ond Amendment point to a more flexible standard of
review."
:The determi-
nation whether those laws deprive respondent of a func-
tional firearm depends substantially on whether D.C.’s
trigger-lock provision, D.C. Code § 7-2507.02, can prop-
erly be interpreted (as petitioners contend, see Br. 56)
in a manner that allows respondent to possess a func-
tional long gun in his home.8 And if the trigger-lock pro-
vision can be construed in such a manner, the courts
below would be required to address the factual is-
sue—not fully explored during the prior course of the
litigation—whether the firearms that are lawfully avail-
able to respondent are significantly less suited to the
identified lawful purpose (self-defense in the home) than
the type of firearm (i.e., a handgun) that D.C. law bars
respondent from possessing.9
To the extent necessary, further consideration of
those questions should occur in the lower courts, which
would be in the best position to determine, in light of
this Court’s exposition of the proper standard of review,
whether any fact-finding is necessary, and to place any
appropriate limits on any evidentiary proceedings.
Moreover, even if the existing record proved to be ade-
quate, initial examination of those issues is typically
better reserved for the lower courts."
"CONCLUSION
The Court should affirm that the Second Amend-
ment, 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. "
As I read this, the (Bush) Dept of Justice is asking that the Court hold it to be an individual right, but not strike the DC gun law, instead sending it back down to the trial court to take evidence on everything from how much the District needs the law to whether people can defend themselves without pistols and just what the DC trigger lock law means. THEN maybe it can begin another four year trek to the Supremes. That is, the DoJ REJECTS the DC Circuit position that an absolute, flat, ban on handguns violates the Second Amendment, and contends that it might just be justified, it all depends on the evidence.
There was a saying during my years in DC that the GOP operated on two principles: screw your friends and appease your enemies. Yup.
Posted by David Hardy · 11 January 2008 08:41 PM
PDF here.
Quick read: Gov't says, yes, it's an individual right. BUT we join with DC in asking Court to reverse the DC Circuit, because it applied strict scrutiny to the DC law. It should only have applied an intermediate standard. That is, the legal position of the US is that DC CIrcuit was wrong, a complete ban on handguns is NOT per se unconstitutional, it all depends on how good a reason DC can prove for it. Some quotes:
"When, as here, a law directly limits the private pos-
session 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 con-
siders (a) the practical impact of the challenged restric-
tions 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 enforce-
ment of the relevant restriction.
The court of appeals, by contrast, appears to have
adopted a more categorical approach. The court’s deci-
sion could be read to hold that the Second Amendment
categorically precludes 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 prohibit-
ing the possession of certain firearms, including
machineguns. However, the text and history of the Sec-
ond Amendment point to a more flexible standard of
review."
:The determi-
nation whether those laws deprive respondent of a func-
tional firearm depends substantially on whether D.C.’s
trigger-lock provision, D.C. Code § 7-2507.02, can prop-
erly be interpreted (as petitioners contend, see Br. 56)
in a manner that allows respondent to possess a func-
tional long gun in his home.8 And if the trigger-lock pro-
vision can be construed in such a manner, the courts
below would be required to address the factual is-
sue—not fully explored during the prior course of the
litigation—whether the firearms that are lawfully avail-
able to respondent are significantly less suited to the
identified lawful purpose (self-defense in the home) than
the type of firearm (i.e., a handgun) that D.C. law bars
respondent from possessing.9
To the extent necessary, further consideration of
those questions should occur in the lower courts, which
would be in the best position to determine, in light of
this Court’s exposition of the proper standard of review,
whether any fact-finding is necessary, and to place any
appropriate limits on any evidentiary proceedings.
Moreover, even if the existing record proved to be ade-
quate, initial examination of those issues is typically
better reserved for the lower courts."
"CONCLUSION
The Court should affirm that the Second Amend-
ment, 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. "
As I read this, the (Bush) Dept of Justice is asking that the Court hold it to be an individual right, but not strike the DC gun law, instead sending it back down to the trial court to take evidence on everything from how much the District needs the law to whether people can defend themselves without pistols and just what the DC trigger lock law means. THEN maybe it can begin another four year trek to the Supremes. That is, the DoJ REJECTS the DC Circuit position that an absolute, flat, ban on handguns violates the Second Amendment, and contends that it might just be justified, it all depends on the evidence.
There was a saying during my years in DC that the GOP operated on two principles: screw your friends and appease your enemies. Yup.
