The Trouble with the DOJ's Stance on DC Gun Rights

Brian Doherty | February 14, 2008

Robert Levy, one of the major players in the 2nd Amendment case Heller v. D.C., is annoyed at the Bush administration's Department of Justice for its brief in the case. He explains why in the Washington Times. The problem with the DOJ's position?

According to the DOJ, the courts should consider the nature and functional adequacy of available alternatives. That may sound sensible at first blush, but it could be fatal to the Heller litigation.

Here's the rub: The Justice Department says the Court of Appeals ruling that overturned the D.C. ban might cast doubt on the constitutionality of existing federal legislation, including machine-gun regulations. So the administration urged that Heller be returned to the lower courts for appropriate fact-finding to determine whether rifles and shotguns in the home, as permitted by the D.C. Code, are an adequate substitute for handguns.

That came as quite a shock to those of us who believed the administration's professed fealty to gunowners' rights. What we got instead was a recommendation that could be the death knell for the only Second Amendment case to reach the Supreme Court in nearly 70 years.

Rather than a foursquare pronouncement that the D.C. handgun ban is unreasonable by any standard, the Justice Department has essentially endorsed years of depositions and expert testimony, and a rerun before a less hospitable Supreme Court.

In effect, a conservative administration has thrown a lifeline to gun controllers. Following the DOJ blueprint, they can pay lip service to an individual right while simultaneously stripping it of any real meaning. After all, if the D.C. ban can survive judicial scrutiny, it is difficult to imagine a regulation that would not.

Those eager for one-stop shopping on news, background, and briefs on the Heller case, see the DC Gun Case site.

Comments

|2.14.08 @ 12:58PM|#

Fucking idiots. The modern Court is highly unlikely to overturn a legislative "factual" finding that available alternatives are adequate substitutes for banned firearms.

Elemenope|2.14.08 @ 1:03PM|#

Not idiots. Assholes. They must know full well what effect such a argument in brief would have on the case.

jj|2.14.08 @ 1:05PM|#

You idiots rant and rave about the loss of your liberties, and then you go and vote for Obama, or Clinton. Apprarently the "racist", "anti-semite", freedom candidate was not good enough. I hope you like his pretty-boy face. Because it's all you will have left once you have sold your liberties to keep Hillary out of the White House.

Most of America are idiots who will willingly vote away their lives. But you pathetic libertarians who know better have no excuse. I bite my little finger at you!

jj|2.14.08 @ 1:07PM|#

And yes I'm a Jew who has all the supposed people group pedigrees necessary to bash Paul if I wanted to. But I'm not such a fucking idiot.

Episiarch|2.14.08 @ 1:10PM|#

Does this surprise anyone? The DOJ is part of the government. The government fears the people being able to have guns, which is why there is a 2nd Amendment in the first place. The government especially fears the possibility of the National Firearms Act of 1934 (which is when machine guns, silencers, etc. were highly regulated) because it's a government and that's just too much firepower for the peasants to have.

I mean, I don't care what the Administration's official 2nd Amendment stance is. Authoritarian fuckbags like Bush and his cronies don't want people having machine guns, besides fearing the shrieking which would come from their opponents and gun-banners if it happened.

I mean, their guards have machine guns and pistols. Fuck the rest of us.

|2.14.08 @ 1:15PM|#

Both the Republicans and Democrats are pro gun-control.

Republicans want to keep minorities disarmed and helpless serfs. Democrats want to keep all people disarmed and helpless serfs.

|2.14.08 @ 1:17PM|#

jj: uh, what?

shecky|2.14.08 @ 1:18PM|#

The overturned the D.C. ban might cast doubt on the constitutionality of existing federal legislation!?!?

We don't need no activist courts here!

Elemenope|2.14.08 @ 1:20PM|#

Both the Republicans and Democrats are pro gun-control.

So true.

Republicans want to keep minorities disarmed and helpless serfs. Democrats want to keep all people disarmed and helpless serfs.

Nothing so sinister. They both just want to snag that juicy soccer mom vote. Do you think the pols really give a damn who has what kind of gun? Short of an armed revolution (which, without food shortages is unbelievably unlikely) guns or not, the pols themselves have little to gain or lose.

On the other hand, they do have *voting blocs* to gain or lose. Suburban moms irrationally fear that their kid is going to get plugged at school, and they vote for whoever they feel will make this (ridiculously unlikely) event less likely to come to pass.

Other Matt|2.14.08 @ 1:21PM|#

You idiots rant and rave about the loss of your liberties, and then you go and vote for Obama, or Clinton. Apprarently the "racist", "anti-semite", freedom candidate was not good enough.

Actually, jj, you would have had fun with what happened when I pointed out the racist aspects of gun control. Watch out for joe, he gets really prime fucking moronic if you point it out, since you can't be a racist unless you're a white guy, or at least someone that fits his somewhat flexible definition of a racist, and the only people in the world qualified to judge exactly what is racist and what isn't are whiny white MA liberal apologists who have no concise train of thinking.

I mean, their guards have machine guns and pistols. Fuck the rest of us.

They work for the kind and benevolent government. Kind of like in Baltimore, which is prime Obama territory. They're all just very well trained even tempered measured representatives of the government type dudes. You don't know this? What, are you from the county or something?

Democrats want to keep all people disarmed and helpless serfs.. except the minority types who are doing it just because they have people in their history who were treated badly, so that makes it ok, it's society's fault.

|2.14.08 @ 1:24PM|#

The people I know at Justice tell me the brief was crafted to appeal to Justice Kennedy, who seems to be running the country these days. Ultimately, DOJ under any administration is a den un trustworthy cronies who will always take the law and order side over the civil rights side. This brief is an embarassment.

|2.14.08 @ 1:25PM|#

jj-

I would vote third party before I'd vote for Obama.

Jeebus.

shecky|2.14.08 @ 1:31PM|#

Republicans want to keep minorities disarmed and helpless serfs. Democrats want to keep all people disarmed and helpless serfs.

Lets not overplay our hand. Even without arms, it's difficult to paint the typical American as a helpless serf in any way. This is the kind hyperbole that gets even some sympathetic libertarian eyes rolling.

Modern life is quite good, which makes it an uphill battle regarding the freedom to own firearms, one side seeing no need for ownership, the other seeing no need for regulation. I can't even guess at which voting block carries more weight.

|2.14.08 @ 1:34PM|#

shecky-

Perhaps the proper answer is "if you don't like guns, that's fine. Don't own one then."

Keep the government out of my gun safe.

|2.14.08 @ 1:36PM|#

""Regrettably, the Bush administration - supposed proponent of gun rights and devotee of the Constitution - has added one more breach of promise to its growing list.""

Can Mr. Levy say that with a straight face? The Bush admin has never been a devotee of the Constitution.

Lurker Jack|2.14.08 @ 1:38PM|#

"Even without arms, it's difficult to paint the typical American as a helpless serf in any way."

You gotta be kiddin me. How else do you become a helpless serf?

|2.14.08 @ 1:40PM|#

except the minority types who are doing it just because they have people in their history who were treated badly, so that makes it ok, it's society's fault.

No. The Democrats are quite ruthless towards minorities when it comes to gun control. They will have no problem imposing a quite brutal police state largely on urban minorities with a drug-war style war-on-guns.

Remember, the Democrats are superficially against racism because it gives them an excuse to expand the state (i.e. the state needs to protect you from racism, so give the state more power to do so). But the Democrats have no actual problems with using racism to achieve their ends when it is the government commiting the racist acts.

Lets not overplay our hand. Even without arms, it's difficult to paint the typical American as a helpless serf in any way. This is the kind hyperbole that gets even some sympathetic libertarian eyes rolling.

I didn't call Americans serfs. I said that the political parties want Americans to be serfs. Disarming citizens is the first step in making that a reality.

Elemenope|2.14.08 @ 1:56PM|#

I didn't call Americans serfs. I said that the political parties want Americans to be serfs. Disarming citizens is the first step in making that a reality.

I don't follow. Sure, disarming the public may have been a good first step to enforcing serfdom two hundred years ago, but seeing as how arms find their ways into truly revolutionary hands anyway, it doesn't seem so efficacious. In America, you can own as many guns as you damn well please and still be every bit the "serf". You can't exactly *use* those guns to liberate yourself in any significant way, now, can you? What are you gonna do, shoot a cop? The taxman? Your boss? Next door neighbor? Good luck securing your freedom that way.

No, in the modern context, the first step to permanent serfdom is to ensure that people are comfortable and well-fed enough that revolution always seems to be more trouble than it is worth. With one historical exception likely never to be repeated, well-fed well-paid people NEVER revolt, regardless of what is done to them. In such conditions, guns are nothing more or less than Libertarian security blankets ("Well, the cops can pull me over, toss my car, and write citations with impunity...but I still got my gun, and they can't take that away!")

|2.14.08 @ 1:58PM|#

And now cometh 50+ Congresscritters filing their own brief, which apparantly pol-parrots the doj sophistry. 58 pages of ?*&^%I.

In response to my question to my rep, he bragged about signing on to this merde, ignored my direct request he sign on with Goode (VA), all the while reminding me of his devotion to the Constitution. Oh to breathe the rarified air of DC where the only rule is preservation of office

shecky|2.14.08 @ 2:10PM|#

You gotta be kiddin me. How else do you become a helpless serf?

Don't be a moron. The standard of living even in modern countries with highly regulated firearm ownership laws is higher than has even been in the history of the world. Not to mention the US with it's relatively lax firearm laws. To yell out the "we'll all be serfs!" flavor of bedwetting is an instant plea to be ignored by even the folks who are sympathetic to the cause.

The more convincing argument, aside from the 2nd Amendment itself, is that firearms themselves are not a significant cause of misery to people in the US, and on the contrary, a great source of enjoyment.

The Democrats are quite ruthless towards minorities when it comes to gun control.

This argument also breaks down when minorities themselves vote in favor of Democrats. You're put in the tenuous position of claiming that minorities are racist against themselves, when simple fear of firearms and their effects is a more reasonable (and non racial) explanation for being in favor of gun control.

The argument assumes people want freedoms for themselves, but not for others. But ignores the fact that folks are often quite willing to be regulated along with everyone else.

I say lets not play the race card when arguing in favor of our 2nd Amendment rights. It's cheap and looks disingenuous.

|2.14.08 @ 2:18PM|#

surprise? The bush administration wants to control the american public. what better way to control them than to infringe upon their ability for self defense?

Paul|2.14.08 @ 2:23PM|#

they can pay lip service to an individual right while simultaneously stripping it of any real meaning

Doesn't this describe the overall approach to constitutional rights in general?

Abdul|2.14.08 @ 2:27PM|#

This was the one thing I thought the Bush administration could get right. An individualist interpretation of the 2nd Amendment was one of John Ashcroft's first acts as AG.

Now I'll have to find another thing. Brush clearing, maybe?

|2.14.08 @ 2:28PM|#

This is all happening because God is punishing us for not nominating Huckabee as the GOP candidate as He wanted. Remember, Bush is just the right hand of God.

Paul|2.14.08 @ 2:32PM|#

Modern life is quite good, which makes it an uphill battle regarding the freedom to own firearms,

Shecky. You've convinced me. When adding up all the infringements to our basic freedoms: illegal wiretaps, congressional laws abridging speech vis. Campaing Finance Reform, firearms restrictions, property rights infringements vis. Kelo, regulatory red tape which implicitly restricts our basic persuit of happiness etc. etc., I do note that lifespans are longer, fewer people are going hungry (see Obesity epidemic), our healthcare system is actually pretty good and covers a very large range of people, and as of this moment in time (not adjusting for inflation) I'm making more money than at any other time in my life.

So why bother complaining about a petty outrage like, oh, the government listening to my phone calls? What direct suffering have I felt over the fact that my internet activity *migh* be monitored by the NSA?

|2.14.08 @ 2:47PM|#

This argument also breaks down when minorities themselves vote in favor of Democrats. You're put in the tenuous position of claiming that minorities are racist against themselves, when simple fear of firearms and their effects is a more reasonable (and non racial) explanation for being in favor of gun control.

Errrrhhhh... Wrong!

First of all, when minorities are given the choice to vote for or against gun control as a ballot initiative, minorities vote against gun control. The stereotype that minorities are all for gun control is entirely false. That is why Democrats fight so hard to keep gun issues off the ballot.

Just because minorities vote disproportionally for Democrats, and Democrats support gun control, it doesn't follow that minorities support gun control. Try actually visiting some place like Detroit and talk to people about politics. Democrats support all sorts of policies that are terribly unpopular with minorities.

Minorities vote disproportionally for Democrats because they percieve the Democrats as being *LESS* racist than Republicans. Minorities, however, would be the first ones to tell you just how racist the Democratic political machine is.

They realize that with either party, they are going to be harrassed and have their guns confiscated by the police. Neither Democrats nor Republicans are going to allow wide spread legal gun ownership in the inner cities. So therefore, someone who wants to take guns away from white people and black people (the Democrat) seems marginally less racist than someone who wants to take guns away from just black people (the Republican).

Don't believe that just because some minority group is forced to make the aweful decision between Democrats and Republicans, that it means that they actually support the agenda of the party they choose as the lesser of two evils.

robc|2.14.08 @ 3:16PM|#

Abdul,

An individualist interpretation of the 2nd Amendment was one of John Ashcroft's first acts as AG.

It should have told us something when Ashcroft resigned because he couldnt stand working for Bush.

|2.14.08 @ 3:37PM|#

Ah, the final stab in the back from Republicans to Libertarians after decades of money and support.

Any chance the NRA has anything about this in their magazine or funding request?

A Republican DOJ does this and 66% of the comments on here are vitriol towards the Democrats. Weird or delusional?

CFroh|2.14.08 @ 4:00PM|#

Brian, any loss by Cato's Levy et. al. in the Courts would be a horrible tease to we D.C.-ites who crave respect for our Armed Defense Right. For those of us who invested heavily in Dr. Paul, we could use an amazing victory to give us some hope that Liberty isn't totally DEAD. I blogged about your story at my blog today, http://www.commoninterest.info/2008/02/14/happy-valentines-to-all-except-the-state/, and invite Reasonoids to click on the link and leave a "comment," if for no other reason than to spread the news to yet another site. My blog is in the context of all those who deseve no Valentine's love, which mainly means "no love for the State".

Blessings.

|2.14.08 @ 4:55PM|#

Even without arms, it's difficult to paint the typical American as a helpless serf in any way

I think "helpless serf" is a perfectly good term for all those people begging the gubbermint to bail them out of mortgages they were too greedy/stupid to say no to

|2.14.08 @ 5:04PM|#

Patrick:
NRA has filed it's own brief; haven't looked at it yet.
NRA has also touted the CONgressional brief, authored by that bulwark of freedom Kay Bailey Hutchison (R-TX), whose photo adjoins Webster's entry RINO.
NRA did not examine the CONgressional brief, only stated it support the 'individual right'.
Good luck, we shall need it.

heh2k|2.14.08 @ 5:25PM|#

I'm surprised no one's mentioned dick cheney's brief in this thread.

http://www.google.com/search?hl=en&q=dick+cheney+gun+ban+brief&btnG=Search

|2.14.08 @ 5:25PM|#

Friends,

As we converse, news reports 18-20 shot at Chi area college.

As we close on elections, I expect more of this depradation, and political class will use such to come after all our arms, maybe letting us (legally) keep single shot top break 410 shotguns.

Suggest gun owners lay in spare parts and ammo, whoever takes the white house will be willingly endorse those 'reasonable' restrictions doj has touted, and have them pre approved by a gaggle of fed courts.

Good luck

|2.14.08 @ 5:41PM|#

That shooting is at NIU in Dekalb IL. I'd like to think the revolution has begun, but sadly it's probably some dickhead with emotional problems hurting innocents. (It better not be my son, or Im gonna kick his ass)

geekWithA.45|2.14.08 @ 6:06PM|#

Getting back on topic, getting around "the bazooka question" is on ~everyone's~ agenda, even Gura & Levy. In order to avoid the possibility of 2A being deemed to protect bazookas, they've thrown machine guns under the bus in their own brief, by inventing an extension of what was previously understood to be the Miller test by bolting "and in common civilian use" to the end of it.

|2.14.08 @ 6:13PM|#

Suggest gun owners lay in spare parts and ammo

You know, I was having the same thought.

I would love to get a .45 ACP carbine that took high-cap magazines, but I haven't seen any on the market. Any thoughts?

|2.14.08 @ 6:14PM|#

they've thrown machine guns under the bus in their own brief, by inventing an extension of what was previously understood to be the Miller test by bolting "and in common civilian use" to the end of it.

Silver lining: Cops are civilians, not military. Not sure what "common" means in this context, but it opens the door to a conversation that we should have the same gun rights that cops do.

|2.14.08 @ 6:28PM|#

RC

We'll not turn this to a Trashkanistan style gun bazaar but Vector Arms made (or makes) an Uzi style 45 carbine...how 'bout the old standby Thompson?

As to liberty; others have observed that we're way too comfortable to worry about either incremental or catastrophic loss thereof.

I used to joke (no longer a joke) that one could rape his neighbors wife, barbecue the kids and skin the dog, but said neighbor wouldn't lift a finger in defense or in vengeance.

As for the poor souls at NIU, they inhabited a criminal safety zone and none could quickly and decisevly come to their aid. Tha nattering nitwits are all over the news spouting that 'college campus security isn't what it should be'.

Good luck

LarryA|2.14.08 @ 7:36PM|#

So the administration urged that Heller be returned to the lower courts for appropriate fact-finding to determine whether rifles and shotguns in the home, as permitted by the D.C. Code, are an adequate substitute for handguns.

[expletive deleted] How is having a dismantled rifle or shotgun locked in a gun safe specifically to keep you from using it for self-protection an "adequate substitute" for a self-defense handgun?

At least Cheney came up on the right side of this.

Nothing so sinister. They both just want to snag that juicy soccer mom vote.

I'll see your soccer moms and raise you 80,000,000 gun owners. And if my classes are any indication, the soccer moms are coming over to our side as well. Why do you think Hillary and Barak are avowing their (fake) pro Second Amendment bonifides?

As for the poor souls at NIU, they inhabited a criminal safety zone and none could quickly and decisively come to their aid.

Bingo. Besides being a college campus, it's in Illinois, one of the only two states where licensed concealed carry is completely illegal.

Bingo|2.14.08 @ 7:45PM|#

Not to mention that, yet again, no one tried to protect their classmates by actively stopping the guy; they all ran away.

It may not be serfdom yet, but Americans are certainly turning into helpless sheep in need of a shephard.

|2.14.08 @ 7:59PM|#

Strange, considering the same DOJ issued this opinion on the 2nd amendment being an individual right a few years ago....

Well, maybe it's not the same DOJ, since the AG has been a revolving door. Maybe Mukasey is more of a gun control guy than Ashcroft?

Dave W.|2.14.08 @ 8:01PM|#

Silver lining: Cops are civilians, not military. Not sure what "common" means in this context, but it opens the door to a conversation that we should have the same gun rights that cops do.

Since I have been studying ConLaw for the NYS Bar, I have been meaning to ask you, RCD: do you think that 2A is incorporated against the States?

(yes I know that DC is not a State and that my question is, therefore, slightly OT.)

Other Matt|2.14.08 @ 8:47PM|#

RC-
I would love to get a .45 ACP carbine that took high-cap magazines, but I haven't seen any on the market. Any thoughts?

My thoughts . You might do better with with a 40SW

|2.14.08 @ 11:43PM|#

I would love to get a .45 ACP carbine that took high-cap magazines, but I haven't seen any on the market. Any thoughts?

Mech Tech make several products that will convert a .45 pistol into a nice little carbine.

For my money, though, it's all about AR15's and spare magazines.

|2.14.08 @ 11:45PM|#

[expletive deleted] How is having a dismantled rifle or shotgun locked in a gun safe specifically to keep you from using it for self-protection an "adequate substitute" for a self-defense handgun?

Very simple, really. It's kind of like how if you grow your own pot, on your own property, for your own personal use, that you're engaged in interstate commerce.

|2.15.08 @ 12:17AM|#

I think Obama has already sounded off that we need MORE gun control. It's so nice to know that no tragedy will stop a politicians from pandering to his nanny-state base.

Now all we need is for Dinesh D'Souza to crawl out from under his rock and blame this on atheists like he did with the Virgina Tech shooting.

|2.15.08 @ 12:28AM|#

Obama is a gun prohibitionist of the worst, most despicable kind.

|2.15.08 @ 8:04AM|#

Obama is a gun prohibitionist of the worst, most despicable kind.

Gunman kills 6 at N. Illinois U
http://www.latimes.com/news/printedition/california/la-na-shoot15feb15,1,2089436.story

Other Matt|2.15.08 @ 1:27PM|#

Gunman kills 6 at N. Illinois U
http://www.latimes.com/news/printedition/california/la-na-shoot15feb15,1,2089436.story

What's your point, Dave W?

Remember, this is in a state with "Firearm Owner ID Cards", restricted purchases, he purchased them passing a background check, etc, etc, etc. Even the Brady Bunch says they're in the top 10 in the nation.

It more than kind of shows how useless these kind of things really are. Now we see that he was on some kind of emotional medications, and went off them. Sad situation, and I'm sure that Helmke et al have already sent out some fundraising letter as a result.