No, the Bush Administration has not betrayed gun rights; UPDATE: Should the president do himself?
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A .45 Glock Model 30KEYGEN WINDVD 5.0 |
Glenn Reynolds is a law professor. I am not. In fact, I’m not even a lawyer. But I can still read a brief. And in a brief on the most important Second Amendment case ever, the Bush Administration does not betray gun rights, as Professor Reynolds avers.KEYGEN WINDVD 5.0
The administration argues that the “the Second Amendment, no less than other provisions of the Bill of Rights, secures an individual right.” Further, the administration thinks that the gun control statutes at issue in DC v. Heller may well be unconstitutional. But, says the administration, gun control is subject only to “heightened scrutiny,” and not to the “categorical rule” adopted by the court of appeals. The administration wants the case “remand[ed] for application of the proper standard of review.”KEYGEN WINDVD 5.0
Or, as Lyle Denniston at SCOTUS Blog put it:KEYGEN WINDVD 5.0
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.
You could say that the administration hasn’t gone far enough in defending gun rights. But I don’t think you can fairly say that the administration has betrayed gun rights.KEYGEN WINDVD 5.0
For what it’s worth, I think we should pay close attention to the legal framework outlined in the administration’s brief. I’d wager that the Supreme Court adopts it, or something close to it.KEYGEN WINDVD 5.0
UPDATE —KEYGEN WINDVD 5.0
The dextrosphere is abuzz today with critical commentary about the administration’s brief in Heller. Unfortunately, a lot of that commentary is uninformed, i.e., it comes from people who plainly haven’t read the brief. (Blogger’s Rule No. 1: When you’re ready to emote, don’t let the facts stop you!)KEYGEN WINDVD 5.0
As for the commentary of those who have read it, the objection is this: Under the standard of review proposed by the government, i.e., “heightened scrutiny,” an outright ban on handguns might not be unconstitutional per se. KEYGEN WINDVD 5.0
Fair enough. The government’s brief does leave the door open to a ban on handguns. Or rather, it leaves the door slightly ajar: KEYGEN WINDVD 5.0
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. Under that intermediate level of review, the “rigorousness” of the inquiry depends on the degree of the burden on protected conduct, and important regulatory interests are typically sufficient to justify reasonable restrictions. (pdf, p. 8; citations omitted.)
Of course, no burden on protected conduct is as heavy as an outright ban, as the government expressly acknowledges:KEYGEN WINDVD 5.0
Given that the D.C. Code provisions at issue ban a commonly-used and commonly-possessed firearm in a way that has no grounding in Framing-era practice, those provisions warrant close scrutiny under the analysis described above and may well fail such scrutiny. (pdf, p. 9; emphasis added.)
As its brief makes clear, the government doesn’t want the courts adopting a standard of review so strict as to imperil the federal ban on machine guns, or the federal prohibition on the possession of firearms by felons, or the District of Columbia’s prohibition on militia service by “idiots, lunatics, common drunkards, vagabonds, paupers, and persons convicted of any infamous crime …” (pdf, p. 54)KEYGEN WINDVD 5.0
As I said before, you could argue that the government hasn’t gone far enough in defending gun rights, i.e., it didn’t slam the door shut on a handgun ban. But it did file a brief that 1) argues for an individual right to keep and bear arms, and that 2) calls for applying a fairly rigorous standard of judicial review to any infringement of that right. KEYGEN WINDVD 5.0
To my mind, that doesn’t qualify as a betrayal, or as a “screw over;” it doesn’t make the administration “bastards;” it doesn’t require the president to fuck himself; and it doesn’t constitute a watering down of the Second Amendment. In fact, in view of extant firearms law, which leaves the states to do as they jolly well please with no judicial oversight at all, it’s a watering up of the Second Amendment.KEYGEN WINDVD 5.0