search
top

Is the Administration Brief Really That Bad?

This guy says it’s not.  I’m in agreement with SayUncle’s analysis.  I agree with Right Side of the Rainbow on this point:

For what it’s worth, I think we should pay close attention to the legal framework outlined in the administration’s brief. I’d wager that the Supreme Court adopts it, or something close to it.

The last sentence there is why I had such a negative reaction to the brief.  In my mind it opened the door to the court to rule in favor of an individual right, but based on an interpretation that intended to uphold every federal gun law, and will make attacking state laws, like Massachusetts byzantine licensing system, and New Jersey’s “maybe we’ll issue you one this year, if we feel like it.” permitting system for purchasing handguns.

My outrage in this is mellowing a bit, because perhaps I am expecting too much from The Court in Heller.  If, in order to get a majority to rule in favor of an individual right, they need a track of reasoning that the liberals feel comfortable with, perhaps this is a way they could go without handing us an outright defeat.

If The Court did adopt the government’s position would I consider it a victory or a defeat?   I think I’d have to still consider it a victory, because it will at least force the lower courts to start asking the proper questions, even if the ultimate result is not being able to use Heller to get rid of as many gun control laws as we would like.  My big disappointment is that the government’s brief is that it merely calls for “heightened scrutiny”, which implies the government is after something less than strict scrutiny.  What level of heightened would make the government happy?  No doubt whatever level is necessary to uphold the vast majority of federal prohibitions.  That should not be the concern when it comes to constitutional matters.  The Second Amendment deserves the same standard of scrutiny as every other part of the Bill of Rights.

3 Responses to “Is the Administration Brief Really That Bad?”

  1. Rustmeister says:

    What gets me is Right of Rainbow acknowledges that the brief “left the door ajar” on banning handguns.

    Leaving the door ajar just invites Helmke and crew to kick it wide open.

  2. straightarrow says:

    I don’t care if the liberal gun grabbers are comfortable with it. Guess what? Burglars are not comfortable with my position on the sanctity of my home, should I consider it a victory if they just take some stuff and only hurt some of my family in the process?

    Will you ever grow up?

  3. DoJ’s brief may be legally correct. “Strict scrutiny” as a standard is almost always applied to questions of race, national origin, or fundamental rights that are tied to questions of race–and then, only when the challenge is based on the Fourteenth Amendment’s equal protection clause (which is not applicable here because DC isn’t a state).

    Keep in mind that strict scrutiny as a legal standard of review exists for one reason only: for decades, the best lawyers worked for the segregationists, and the only way that liberals on the Court could knock down racist laws was to create a new and more exacting standard of review.

    I’m not sure exactly what standard should be applied on this. Remember that the Court’s willingness to strike down laws has tended to be primarily state laws, not federal laws, and this is an ordinance created by a creation of the federal government.

    I’m not sure exactly what standard of review is normally used when overturning federal laws. Clearly, this is one of those cases where the law is in clear violation, and needs to be overturned. But strict scrutiny has a long and tortured history.

top