More Thoughts on the DOJ Brief

Ian has some interesting thoughts on the DOJ brief.

In particular, the standard arm of the US military is considered a machinegun by law (M-16, as it can fire more than one bullet per trigger press). But because it is a machinegun, it can be banned for public safety reasons under the federal government’s ability to regulate, for the purposes of ensure a well-regulated militia, what arms the People can Keep and Bear… One more time: The government may ban the civilian possession of the standard arm of the military under its ability to sure that the militia is effective. IE – to ensure the militia is effective (well-regulated) the government may ban arms demonstrably suitable for the individual soldier.

Yeah, pretty much. I guess they figure we’d be a little too well-regulated with M16s. I found an interesting and provocative bit of commentary over on The High Road too:

This kind of DOJ brief was one of those risks. It’s not surprising to me that the brief introduces governmental concerns about machine guns. How could it be a surprise to anyone else either? This forum and other gun forums are filled with irresponsible declarations that once this case is won there will be attempts to strike down restrictions on machine guns. You want to be heard. You have been heard. When gun owners insist upon raising red flags and press hot button issues, they need to recognize that they will set off explosions. They always make those explosions someone else’s fault. This one isn’t anyone else’s fault. It’s an obvious response to the red flag that gun owners have insisted upon raising most unwisely.

I can see the author’s point, but I doubt the Solicitor General or Supreme Court justices are much reading The High Road, or any of our blogs. Heller most definitely won’t be on the issue of machine guns, and whether it will lay the groundwork for a getting rid of the ban is unknowable at this point. What disappointed me was that the brief raised that issue, but I suspect the reason is because the federal bureaucracy gets a lot of mileage out of enforcing those laws, rather than The Administration noticing that gun owners have been raising the issue.

Nonetheless, we must tread lightly on the machine gun issue while this case is before The Court.  We really would rather the court not consider that right now, and the less they say in the ruling, even if it’s dicta, the better we’re all going to be.

9 Responses to “More Thoughts on the DOJ Brief”

  1. straightarrow says:

    So if I understand the second excerpt, he is saying if a rapist doesn’t put it all the way in the lady shouldn’t complain?

  2. Sebastian says:

    He’s saying that gun owners raising the issue that Heller would lead to repealing all manner of federal gun laws, specifically the machine gun ban, is what likely prompted the DOJ to go into defense mode and write the brief the way they did.

  3. Even before opening the High Road link, I knew who made the comment–recognized his pomposity from when he and I were both active at

    He is an NRA true believer.

  4. Spence says:

    My theory on this is bureaucracies (in this case DOJ and ATF) want to keep the status quo, unless they are driving the change. There is a fear that the power or funding or their department could be affected. If no one in the blog community were to mention the (insert favorite provision here – not just MGs) , they would still resist it.

  5. Ian Argent says:

    I think Spence has nailed it on the head. The machine gun provision was the most nonsensical; but they threw in the laundry list (prohibited persons, etc).

    However, with at least one howler of an error (referring to an extant federal ban on machineguns), I have to wonder about the level of thought that went into this thing.

  6. Sailorcurt says:

    I agree with Spence…but that’s not what prompted me to comment.

    Just an idle observation: The entire premise of the DOJ Amicus is based upon their opposition to applying strict scrutiny to 2A issues.

    It seems to me that they are readily admitting that federal gun restrictions won’t stand up to strict scrutiny. In other words, their restrictions don’t work and, therefore, cannot be said to be “narrowly tailored to achieve the desired result.”

    That is what is driving their fear. If SCOTUS sets the precedent that strict scrutiny should be applied to the Second Amendment, their federal laws (and, thus, their control over we peasants) ARE in jeopardy.

  7. Excellent point, Sailor (also, why the hell didn’t I think of that?).

  8. kaveman says:

    Anyone wanting some “good” reading material might want to peruse these friend of the court briefs from all the familar antis.

    Click on the first one (pediactrics one) and look at the title in table of contents, page #11. It states that handguns should be banned because children CAN NOT BE TAUGHT GUN SAFETY.

    How did I ever survive my youth?

  9. straightarrow says:

    In other words the lady shouldn’t complain because the rapist may fear losing power that isn’t rightfully his. And we don’t want him to do her wrong-er.

    Now see, that wasn’t so hard, was it? Just man up and say what you mean.


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