More thoughts on the DOJ brief

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It’s probably because I’m “different” but Sebastian’s statement here just strikes me as odd:

The gun vote was a primary driver for making sure Bush won the White House in 2000 and 2004, and the NRA endorsements he received played a big role on that. The Heller case is arguably the most important struggle gun owners have ever faced, and I don’t think its unreasonable to demand something greater than lukewarm support from The Administration on this matter.

The first thought that crosses my mind is, “Did someone think we got a receipt when we gave Bush our votes?” In other words, are people irritated because Bush was “paid off” and didn’t stay paid off? But that is probably just because I think differently than most.

Bush said, essentially from day one, that he would sign the AWB if it came to his desk. Yet gun owners voted for him because he was better (much better) than the viable alternatives. So what should we expect? He didn’t say he was our lover, he just said he wasn’t our enemy.

I’m not happy with the DOJ brief, but I can’t say that I’m at all that surprised or even particularly unhappy with it. It’s better than the alternative had Gore or Kerry been elected.

And via local (Troy, Idaho) IPSC/Steel shooter Mike Brown is a lawyer and offered these thoughts on the DOJ brief:

The Solicitor General here is defending the interests of his client (the US Government). While the brief explicitly reaffirms that the Justice Department’s position is that the 2nd amendment guarantees an individual right they are apparently concerned that the DC circuit opinion establishes a two pronged “categorical” test for whether a weapon is protected:

  1. if it bears a “reasonable relationship to the preservation or efficiency of a well regulated militia,” and
  2. is “of the kind in common use at the time” the Second Amendment was adopted.

Their fear is that if the Supreme Court adopts this test then ALL federal gun control could be struck down especially where it concerns weapons that are especially suitable for militia service (i.e. full auto M4 carbine). The Solicitor General is arguing for a more wisy washy standard to be applied so that “reasonable” regulation of firearms are allowed.

As a sidebar on this topic: the Oregon Supreme Court adopted the same kind of standard for determining which weapons are protected under their state constitution- that is why switchblades are legal in OR: they are the “modern analogue” of swords which were in common use at the time of the adoption of the state constitution.

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3 thoughts on “More thoughts on the DOJ brief”

  1. I’m not surprised so much as disappointed, and hoping for better in 2008. That the solicitor general was doing what solicitor generals do doesn’t give me much comfort, because I think his brief has raised the stakes in this game, by dragging all the federal gun laws into a case where only the DC gun ban is at issue. It may not change the question before The Court, but I worry about the brief’s influence on people like Justice Kennedy, who has generally tended to side with preserving federal power.

  2. Also a concern is that, if remanded, the District Court will apply a level of scrutiny that’s barely heightened, and would in effect preserve DC’s gun ban, if not in its current form, perhaps in a form where DC retains a defacto, if not total ban. In my view, remanding the case back to the trial court will result in a defeat overall, even if the Supreme Court says it’s an individual right. This situation wouldn’t be an outright defeat, but it would be a big setback.

  3. I haven’t checked into this, but I’d be willing to bet that in every instance an AG, SG, or other DOJ personnel filed an amicus brief, the brief was for the Government’s side–from the founding of the USA till current. The Government has always sided with itself.

    We’ll see if it does on in Heller v DC too.

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