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Government files amicus -- on DC's side!

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.

· Parker v. DC

Yep. And I have soooo had it with the Republican party because of crap like that. It's just the kind of thing that really pisses me off. No! You can't have it both ways.

Posted by: Gary at January 11, 2008 09:28 PM

Fred Thompson would put a stop to this anti-gun rights DOJ stuff, that's for sure

Posted by: KSM at January 11, 2008 09:32 PM

It appears that there primary purpose is to protect their pseudo-ban on full auto and other 'destructive devices'. They make a good argument, to this layman. But it falls apart where they argue on one hand that 2A was in part intended to prevent govt. oppression and then on another that the govt can restrict dangerous arms from the people. Perhaps our numbers are meant to counteract the standing army's advantage in firepower? Oh and this argument is not intended as a vehicle for arguing the violent overthrow of the govt, but is meant in a purely philosophical manner for purposes of discussing the brief. (can't be tagged as a homegrown terrorist now can I?)

Posted by: dwlawson at January 11, 2008 09:33 PM

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