U.S. supports gun rights, but more narrowly
The Bush Administration urged the Supreme Court Friday night to rule that the Second Amendment protects an individual right to have a gun for private use, but argued that the D.C. Circuit Court went too far in applying that personal right view. The appeals court, the new brief said, seems to have adopted a “more categorical approach” to gun control laws than is proper.
In a move designed at least in part to protect federal gun laws from being struck down, the new brief urged the Justices to uphold an individual right to a gun and adopt a flexible standard for judging specific laws, and then return the pending test case from the District of Columbia back to the Circuit Court for another look. Tellingly, the government’s friend-of-court brief was not labeled as a supporting brief for either side in the case of District of Columbia v. Heller (07-290).
The government brief can be downloaded here.
Filed by U.S. Solicitor General Paul D. Clement, the brief took no direct position on the constitutionality of the 1976 D.C. law that is at issue: a flat ban on private possession of handguns. The Circuit Court, in a ruling last March, struck down the law, finding that it violates the Second Amendment on the understanding that the Amendment protects an individual, not a collective, right. Clement did comment that the D.C. pistol ban “may well fail” if tested under the approach he recommended, but he did not argue that it would necessarily fail.
“The Court,” Clement summed up at the close of the brief, “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 [to the Circuit Court}.”
The “more flexible standard of review” the brief proposed is, according to the government, a form of “heightened scrutiny.” Here is how it is spelled out:
“When, as here, a law directly limits the private possession 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 considers (a) the practical impact of the challenged restrictions 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 enforcement of the relevant restriction.”
The brief added: “Under that intermediate level of review, the ‘rigorousness’ of the inquiry depends on the degree of the burden on protected conduct, and important regulatory intgerests are typically sufficient to justify reasonable restrictions.”
The D.C. handgun ban, the brief contended, is the kind of gun control that would call for the kind of “close scrutiny” being proposed. That law, it said, bans “a commonly-used and commonly-possessed firearm in a way that has no grounding in the Framing-era practice.”
The Circuit Court, Clement commented, “appears to have adopted a more categorical approach” that he was advocating. The Circuit Court decision, he said, “could be read to hold that the Second Amendment categorically prohibits 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 prohibiting the possession of certain firearms, including machineguns. However, the text and history of the Second Amendment point to a more flexible standard of review.”
The brief continued: “Just as the Second Congress expressed judgments about what ‘Arms’ were appropriate for certain members of the militia, Congress today retains discretion in regulating ‘Arms,’ including those with military uses, in ways that further legitimate government interests. Under an appropriate standard of review, existing federal regulations, such as the prohibition on machineguns, readily pass constitutional muster.” Some machineguns that are banned by federal law might meet the D.C. law’s definition of a pistol, the brief said.
It was not at all surprising that the Administration brief supported the individual rights view of the Amendment’s scope. Although the Justice Department had taken no part in the lower courts as they weighed the D.C. gun ban, then-Attorney General John Ashcroft in 2001 publicly adopted the individual rights view.
And neither was it a surprise that the position the Department took was motivated at least in considerable part by the felt need to assure continued enforcement of some federal gun control laws. Even though the government for more than six years has held the individual rights view of the Amendment, it has yet to take a position in a court case that a particular gun law was invalid under that view.
In arguing in the end that the case should be returned to the Circuit Court, Clement’s brief said that there are factual and legal issues that the lower court did not consider in its March ruling.
It suggested that one issue that deserves further airing is the practical impact of another part of the D.C. gun law that requires that any other kind of firearm kept in the home be kept unloaded or with a trigger lock in place. The local man who challenged the gun law has argued that the trigger lock provision may bar a resident of the city from even having a working shotgun or rifle at home.
Whether the law puts a “functional firearm” out of local residents’ reach, the government brief said, may depend on whether the local law can be read to allow possession at home of a working long gun.
If the law can be read that way, there would then arise, Clement suggested, the factual issue of whether the guns that remained available are not as well suited to self-defense in the home as a handgun would be.
Those questions, the brief said, are better left, in the first instance, to the lower courts. In a footnote at the end of the brief, Clement suggested that, if the Circuit Court ultimately held that some or all of the D.C. gun law’s restrictions are unconstitutional, “a remand will also give that court the opportunity to state more precisely the scope of its remedial holding” — that is, just what parts of the law are being invalidated.
Friday was the due day for friend-of-court briefs by groups supporting the D.C. government’s appeal in the case, or briefs by anyone joining in the case without taking sides with either the local government or with the gun law challengers. As of Friday night, 19 briefs had been filed to support the District of Columbia appeal.
Briefs by the gun law’s challengers, and friend-of-court briefs supporting that side, are due in about a month. The case is expected to be heard by the Court in March.
Why does the SG suggest that the Court look at “Framing-era practice” as to restrictions on guns without looking at the type of “arms” in the “Framing-era”? In other words, maybe the Court should find that flintlocks and breech-loaders are protected as “Arms” but not multiple-round weapons like revolvers, weapons with magazines or clips, and the like. Consider this a Modest Proposal.
Comment by Edward Still — January 11, 2008 @ 10:42 pm
It is perhaps impossible to find a more ardent supporter of President Bush than I. I went to both inaugurations, his pictures decorate my home and I have spent many hours over the past seven years as the lone voice of support for Mr. Bush in countless conversations.
As of Saturday, January 12, when I learned of the brief filed by Solicitor General Clement in the DC gun case, I have been transformed into an opponent of Mr. Bush. The pictures of Mr. Bush that decorate my home will come down.
I cannot think of day in my life than has been sadder than this January 12, 2008.
Comment by James Madison — January 12, 2008 @ 10:13 am
If the court rules that the 2nd amendment only protects arms that “..can be traced back to the Founding era”, Wouldn’t that necessarily mean that the 1st Amendment only protects means of free speech that could be traced back to the founding era as well? I think it would be easier to argue that the ‘founding fathers’ could have more easily grasped/imagined a repeating rifle (e.g. a machine gun) than they could have imagined television or the internet (both of which had no precursors in their day). Therefore, under that flavor of ruling, your internet blog would enjoy less protection under the 1st Amendment than a pamphlet maker.
Comment by Mike Wilson — January 12, 2008 @ 2:04 pm
Mike Wilson. WOW. That was exactly my reaction as well. I am not a gun owner but I have always believe that the plain text of the 2nd amendment means exactly what it says, no matter how much people try to twist it. And I believe that precisely because of the point you raise. Regulating the meaning of the content of “arms” is no different that regulating the content of “speech”. I get wary of the idea that one term should been seen broadly and the other term narrowly as there is no rational basis for such a position.
Comment by Daniel Thomas — January 12, 2008 @ 10:01 pm
The goverment is attempting to split hairs on this issue do to the long reaching effects the ruleing would have on gun laws. If the court rules in faver of the individule right, that could vary well bring down the National Firearms Act that taxes and regulates machine guns and short barrel shot guns exctra. After all…..How can you tax a constitutional right???? I am a strong supporter of indidvidule right. Wahington D.C. is a war zone. If gun control worked, how could this be??????
Comment by Tim A. Brown — January 13, 2008 @ 6:17 am
I’m not sure how useful the “militia” discussion is here when the question posed specifically spoke of use of arms outside of the state regulated militia context.
As to the trigger lock provision, this was barely addressed by the lower court and in a haphazard way worthy of remand:
“Heller does not appear to challenge the requirement that a gun ordinarily be kept unloaded or even that a trigger lock be attached under some circumstances. He simply contends that he is entitled to the possession of a ‘functional’ firearm”
I’m not sure what this means. “does not appear” is a rather paltry factual context to decide a question.
As to the “original understanding” deal, rightly or wrongly, a majority of the Court thinks constitutional understanding to some degree develops over time. So, this focus in the lower court is likely to be changed by the Supreme Court.
But, I think some comments might be misreading what “traced” means. By analogy, the Internet can be “traced” back to 1789 fairly easily. A blog looks pretty much like a broadsheet of that era in many ways. Thus, a Bork or Thomas can find a connection fairly easily.
I think that harder question is that there is no easy answer where this would take you, even if you accept it, which as I noted the SC has not in a strict way that some regulars here prefer.
BTW, JM’s comments are interesting in that even Ashcroft’s support (including a famous letter) of the individual’s view opened up the possibility of various limitations that might not have been allowed under certain readings of the lower court. (use of dangerous arms, let’s say, arms that might be connected to 1789 all the same)
Comment by Joe — January 13, 2008 @ 9:42 am
I, too, view this is another in a long line of disappointments by the Bush administration. But, we must remember that throughout the last century the Federal government enacted several pieces of unconstitutional legislation limiting “The People’s” right of access to firearms (some of which has, thankfully, sunsetted) and now they find themselves in a position of having to defend that legislation.
As other submitters have mentioned, the reference to “Founding era” is most troubling to me. Who in their right mind would advance the argument that the Second Amendment should be held to a different standard than all the others?
Comment by Carmon Liversedge — January 13, 2008 @ 10:41 am
The DOJ brief probably changes the equillibrium somewhat. I think that Gura’s (Heller’s) brief now needs to address more precisely the details of what a standard of review should be with respect to firearms. Gura gets a pretty clear shot at suggesting details of a standard of review without a rebuttal in the D.C. brief. Even if the Court does not accept all of the details of a standard review as suggested by Gura, it may still be the starting point in the Court’s thinking. So, I think Gura really needs to say something about the details of a standard of review.
Comment by Robert Hilton — January 13, 2008 @ 1:32 pm
“Heller does not appear to challenge the requirement that a gun ordinarily be kept unloaded or even that a trigger lock be attached under some circumstances. He simply contends that he is entitled to the possession of a ‘functional’ firearm”
I believe what is being referred to is a true “storage” law–the guns have to be locked up when stored–as opposed to D.C.’s law, which makes it illegal to have an unlocked gun in your possession.
Comment by Munango-Keewati — January 13, 2008 @ 10:31 pm
Joe: I think the difference with “traced” is whether one is tracing the founder’s original intent or the original facts at the time. The goverments brief suggests that they are making a determination of original intent based upon the technological situation of the period. I see that as dangerous in the extreme. While it may be true that someone like Scalia could trace a blog back to a broadsheet, there is no logical reason why he must do so. It seems a very very shaky basis on which to hang the future of the first amendement. It should be the original intent that matters, regardless of the historical situation that gave rise to that intent. Indeed, this is precisely why I support the right to bear arms, even if I don’t own a gun or have ever been in a militia. The obvious intent was to allow people to bear arms freely; their motivation (a well regulated militia), while worth a historical footnote, is not important.
Comment by Daniel Thomas — January 13, 2008 @ 10:44 pm
The connection between a blog and an eighteenth century broadsheet seems to be about the same as that between an M-16 and a Revolutionary War musket. The Founding Era argument seems absurd.
Comment by Jon Sandor — January 14, 2008 @ 2:00 am
There are many ways to effectively nullify the right to keep and bear arms.
The Colorado Supreme Court upheld the Denver AW ban by essentially claiming that any law short of a total prohibition on all firearms would not violate the Colorado constitution.
I’m not sure it’s the right state, but I think the Kentucky Supreme Court essentially ruled that only weapons in use at the time the constitution was adapted in the 19th Century were protected by the constitution!
The claims by S.G. Clement regarding DC vs Heller is just another means by which to emasculate the 2nd Amendment and preserve government power over the people.
Comment by Brad Tyler — January 14, 2008 @ 8:43 am
The Founders protected “speech,” not broadsheets, pamphlets, newspapers, blogs, or books. That is why all of those items are protected. Similarly, the Founders protected “arms,” not muskets, pistols, swords, or cannons.
If we go with the “founding era’s” treatment of arms, we see that private citizens were able to own just about anything that the army used — indeed, the “privateers” of the time were privately-owned warships. The implication of that is to allow tanks and the like for private ownership.
Comment by James N. Markels — January 14, 2008 @ 10:00 am
As a resident of southeast DC, I vigorously object to Tim A. Brown’s description of my city as a “war zone.” Yes, there are certain blocks of certain neighborhoods that are scenes of regular violence, but that hardly makes this city a war zone. DC is, in fact, a beautiful city with many vibrant neighborhoods, friendly people and fascinating cultural sites. It also just happens to have the most restrictive gun laws in America.
Personally, I don’t like the substance of the District’s gun laws. But, as an expression of the political will of an overwhelming majority of my fellow DC residents residents which, while strict, does not seem to unreasonably infringe on my 2nd Amendment rights, these gun laws seem nominally constitutional. Trying to argue something demonstrably false (i.e., that DC is a war zone) in order to call the efficacy of these laws into question isn’t going to change that fact.
Comment by Everett Volk — January 14, 2008 @ 1:51 pm
Everett Volk: The whole point of having constitutional rights is so that a mere majority in one little area can’t vote away freedoms willy-nilly. I imagine after the 13th Amendment was enacted that “overwhelming majorities” of those deemed legal residents of the southern States would have voted to keep slavery legal anyway.
And I am curious: how does an effective gun ban NOT “unreasonably infringe” 2nd Amendment rights, if that Amendment is found to enshrine an individual right to keep and bear arms?
Comment by James N. Markels — January 14, 2008 @ 3:46 pm
NRA WRONG ON DOJ BRIEF
I read the statement of Chris posted January 12 on the nraila.org site. It seems to me that Mr. Cox or someone did not read the entire brief. As far as I am concerned, the brief is mostly a disaster for gun rights advocates and here is why. There is section titled “Congress Has Authority To Prohibit Particular Types Of Firearms, Such As Machineguns”, and here is a quote from that section: “Such a categorical approach would cast doubt on the constitutionality of the current federal machinegun ban, as well as on Congress’s general authority to protect the public safety by identifying and proscribing particularly dangerous weapons.”
For those of us who have been active in the gun rights movement, that language is similar to that which has been used by every politician who wanted to regulate or ban firearms. It is difficult to see what working firearm future Congresses would not be able to ban in the name of public safety, if the court adopts Clement’s view.
DC will sure be sure to parrot Clement’s view before the court and argue that it (DC) concedes there is an individual right to arms, but handguns pose a serious threat to public safety, and thus according to the Bush administration, DC can prohibit handgun ownership.
Cox needs to rework his post because it paints a rosy and false picture of the brief.
I am sure that Schumer, Feinstein, Brady, DC, the NY Times and all the other gun grabbers are cheering Clement’s “reasonable approach” to the Second Amendment.
Comment by James Madison — January 14, 2008 @ 4:28 pm
The notion of a “trace” from a 18th century musket to an M16 rifle is interesting. The VPC/Brady have argued that since modern M16 versions have automatic select fire (3 rounds per trigger pull), that a semi-automatic (1 round per trigger pull) is hardly any different, hence semi-automatic firearms should be regulated with the same rigor as machineguns.
If the notion of a “trace” is supported, then even if you don’t buy the trace all the way from a musket to M16, VPC/Brady have provided ample reason to reverse the logic. If semi-automatic firearms are appropriate arms, then M16s must be just as appropriate for minimally regulated ownership and use.
Comment by Charles B Jessee — January 14, 2008 @ 5:32 pm
James Madison: Is it your position that private citizens should be able to own any weapon, from landmines to nuclear weapons, and that anything short of this is a “disaster” for the gun-rights view?
Comment by James N. Markels — January 14, 2008 @ 10:09 pm
James N. Markels asks: “I am curious: how does an effective gun ban NOT “unreasonably infringe” 2nd Amendment rights, if that Amendment is found to enshrine an individual right to keep and bear arms?”
Perhaps I should not have used the word “unreasonably” in my original post, as it implies a legal standard that does not apply in this case. Let me explain my point differently.
While I believe the 2nd Amendment enshrines a fundamental, individual right to keep and bear arms, I do not believe that right is absolute. In particular, I think that the term “infringe” in the second clause of the amendment does not imply some absolute bar against regulation of “arms.” Rather, I think it means that the Court should apply a strict scrutiny standard when reveiwing a law that regulates arms. While strict scrutiny is just that, strict, the fact that it applies in a case does not mean that the law in question is de facto unconstitutional. It just means the state passing that law has some high hurdles to clear to prove its constitutionality.
Thus, as you may well realize, there are two (some say three) prongs to this test:
1. Is there a compelling governmental interest at stake?
2. Is the law narrowly tailored to achieve that interest?
(3. Is the the law the least restrictive means of achieving that interest?)
The real question in the Heller case, in my opinion, is how will the Court come out on these two(three) questions with regards to the DC gun law. While I think there is a compelling state interest at stake (protecting DC residents from gun violence), I think there’s a decent argument to be made that the nearly-categorical ban on handgun ownership and severe limitations on long-gun ownership is not narrowly tailored. But, that said, the ownership of “arms” is not completely banned and the regulation of long guns could be construed to be narrowly tailored.
So, while I agree that one role of the Constitution is to protect minority interests, and I agree that the right to bear arms should be considered a fundamental right, I disagree with your contention that DC’s gun regulations are obviously unconstitutional. I’ll leave that ultimate conclusion up to the nine jurists whose job it is to interpret and apply the law.
Cheers!
Comment by Everett Volk — January 15, 2008 @ 12:01 pm
The DOJ is so much protecting federal firearm laws that it throws out the 2nd amendment and supports an unconstitutional handgun ban. That 32-year old ban effectively denies D.C. residents 2nd amendment rights and effective self-defense. I don’t know any people who would deny that sawed-off shotguns, machine guns and similar items should be either strictly controlled or outlawed. I DO know collectors who do have machine guns and have the appropriate federal firearms license. It is kind of ironic that the DOJ is defending current firearm laws and protracted, expensive litigation with a failure to protect the very Constitution and country to which they swore an oath of office. I am disappointed very much with the DOJ and administration on this basic, fundamental, individual right to keep and bear arms, for self-protection of self and family, and having to take this indefensible position, based upon the stupidity of D.C., Chicago, San Francisco and other cities where 2nd amendment rights have been abridged if not abandoned. There IS a crime problem in large cities. Wholesale disarmament by DOJ, BATFE of the law-abiding republic is NOT working. There is a criminal problem, not a gun problem. Just why do you think violent crimes are DOWN overall in the firearm carry states and UP in cities where guns are banned? Gee, could it be you took firearms away from the good guys and the criminals are armed to the nines?????
Comment by Joe Curtis — January 20, 2008 @ 11:51 am
Charles B Jessee wrote:
“If semi-automatic firearms are appropriate arms, then M16s must be just as appropriate for minimally regulated ownership and use.”
The notion that rounds discharged per pull of trigger is what catagorizes a weapon as “dangerous” is the falsity that most of the Brady Dogma has been predicated upon.
Anyone who has served in the military knows that single, accurate fire is more effective in 99% of situations one may encounter in any type of combat; be it offensive, defensive or MOUT.
The Brady supposition that one would essentially “need less to kill more” is incorrect for a multitude of reasons:
1. Tactics are what kills people; the individual is in fact the “weapon” and the firearms is simply a tool at their disposal. A person motivated to kill or maim others is going to adjust their tactics appropriately to match their tool selection. The inverse is not true.
For example, if you ban “semi-automatics”, it will be a logical conclusion to assume that criminals will favor tactics more akin to Charles Whitman’s massacre, which involved a bolt action.
If you ban bolt actions, short arms, bladed weapons, truncheons, ball bats and other devices still remain. Anything can be used as a tool to take human life. Assault is a state of mind, NOT a type of weapon.
2. Training is the predominate factor in effectiveness with a weapon. A person who aquires a weapon such as an AK47, and assumes that their experience playing video games will be valuable and applicable to their pursuit in violence are typically less effective with these types of weapons, which are ironically used in less than 2% of our national violent crimes.
Good examples are the Nebraska mall shooting compared to Virginia Tech, where a pistol which is unarguably less effective was used to kill five times the amount of people.
In Virginia Tech, it’s irresponsible to blame the weapon, considering that the “victims” hid under their desks, and chose to die rather than resist.
In my opinion, this is an issue of social denegration, and a product of the incipid, “me” generation, in which every person feels that their life is the most valuable thing in the world, and are unwilling to risk it, even to prevent their own death.
3. Guns still only cause about 50% of our national crime. That’s really amazing when you think about the idea that they are available to pretty much anyone. To expand on this point, we can also consider there is no statistical approach to guns SAVING lives – only taking them, and these numbers are also deposited into the aforementioned rough 50% of shootings annually.
These are perceptive issues that have come with several generations of cultural change that has villified objects and taken a liabless approach to dealing with the individual.
It does not take into account that the Bill of Rights (which enumerates the right of the PEOPLE to keep and bear arms) was a document dealing with individual liberty, and not “collective” rights.
I’ve also not expanded on the fact that the founding fathers had just succeeded in challenging the most modern and powerful military force in the world with muskets and untrained militia using the aforementioned “mindset” and “tactics” to accomplish a goal for the pursuit of liberty.
The ownership of Firearms as an equalizer is not a “privledge” that can be regulated, it is a right, bestowed by birth on all free men and women.
Comment by Aaron Schroeder — February 7, 2008 @ 10:07 am