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.