It is also significant that the Second Amendment refers, not to “a right of the people,” but to “the right of the people to keep and bear Arms.” The Framers’ use of the definite article indicates that the Amendment was intended to secure a pre-existing right rather than to create a new one.
[…]
The Court should affirm that the Second Amendment, 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.
Stephen R. Rubenstein
January 2008
Chief Counsel Bureau of Alcohol, Tobacco, Firearms and Explosives Department of Justice
Washington, D.C. 20226-0001
Brief for the United States as Amicus Curiae
[This is from a brief filed in favor of D.C. in the Heller case. If I read it correctly they are concerned that the ATF could be put out of a job because they might no longer be able to regulated the manufacture and sale of firearms and maintain their registry of machineguns. Hence, they want to be left with some power to regulate firearms. I’m not a friend of the ATF (individuals at the ATF is something different) but D.C. surely cannot consider them much of a friend either.–Joe
Joe, I’d agree with you, except that the DC Circuit’s decision in Heller already allows “reasonable” restrictions. And I would argue that the NFA-34 background checks fall within that envelope, provided that they are administered in a timely manner. The only Federal MG regulation at risk is section 922(o) – the MG manufacturing ban. Given the high effectiveness of the NFA-34 background checks, protecting 922(o) should be a negligible issue, legalities aside.
Not to mention that a remanding of the issue to lower courts leaves the poor victims in DC stuck in a near-infinite loop of legal actions.
There might be a vanishingly small possibility that somebody decided to get cute and try to soak up opposition time…but I think it far more likely that either deliberately or through inaction, the Bush administration decided to knife firearm owners in the back. To try to fob us off with a ruling that the 2nd Amendment protects our right to own SOME arms…but not the arms we DO own.
All I’m saying is that the ATF is saying it’s individual right. That is a big difference from the D.C. position. Compare this brief with that of Janet Reno et al:
I’m not a big fan of this administration but it’s a lot better than it could be and about as good as would I expect.