Attention: The Administration just blundered in a catastrophic fashion

By Gildas Posted in Comments (163) / Email this page » / Leave a comment »

The news broke late last night that the Department of Justice has filed an amicus brief in the DC Gun Ban case, asking that the Supreme Court overturn the Court of Appeals decision striking down the DC Gun Ban. This is a move of breathtaking idiocy that may have already cost us the election.

Information here - note the number of comments in such a short period of time

To be sure, the DOJ argues that the 2nd Amendment protects an individual right, but it argues that the Appeals Court erred in overturning the law because it applied the strict scrutiny standard instead of some balancing test between the government's interests and the right to keep and bear arms. In the view of the DOJ, 'shall not be infringed' might not necessarily mean you cannot ban a whole class of weapon.

Read on . . .

Leaving aside the legal details of this brief, we need to do what apparently no one in the administration did and consider the political aspects. This is going to be taken as an outright stab in the back by the gun rights community, all the worse because it was unexpected. The government did not have to file a brief in this case, and if it did most gun owners were expecting it to file on the side of Heller!

I can guarantee that already the gun boards will be filled with a combination of anger, betrayal and disbelief in response to this move. Any Republican who is expecting gun owner votes in this year's elections needs to distance themselves from the administration over this, and fast. If the GOP nominee this year does not repudiate this then I can forsee a lot of gun voters (who are single issue voters and a lot of whom are not republicans but independents) simply not showing up in November. I don't advocate that sort of self-destructive tactic, but that doesn't mean that others won't.

Incidentally, this is a golden opportunity for Fred to lock up the gun vote by attacking this move. It is also an opportunity for Romney, who has flubbed this issue repeatedly to prove he is a friend.

And if there is any possibility of the Administration being prevailed upon to step in and withdraw the brief, it should be pursued. I am under no illusions that in Washington many things are done in the Executive that the President has no knowledge of - so anyone out there who has Establishment connections should be using them to make the right people aware of the colossal blunder that has just been made.

...a politically unpopular administration has given all of our candidates this year the ability to safely and publicly break with said administration over an issue important to both conservatives and libertarians. And it's an issue that the Democrats cannot tack too far to the right on themselves, lest they trouble their own base.

You're welcome. :)

The Fuzzy Puppy of the VRWC. I've been usurped!

If it works.

Man is free at the moment he wishes to be. --Voltaire

But we're probably better off if we teach ourselves to immediately react to this sort of thing with "How can we turn this to our advantage?" rather than "WE'RE DOOMED!!!!!"

Which is not really supposed to be a criticism of the original post. :)

The Fuzzy Puppy of the VRWC. I've been usurped!

But. by skey

I don't want us to be doing that, because it's a very short step from doing that, to where you actually start doing bad things for slight political advantage.

That's not what Republicans stand for, and they shouldn't stand for it. That sort of slimy behavior is a Democrat game.

But definitely all of the candidates should be asked about it. My guess is that Giuliani would be all for this, if he were honest, but he can't be. Romney would oppose this because he thinks he's supposed to, and then be accused of flip-flopping on his early waffley gun statements. McCain? Who knows, but if he has as little respect for the second amendment as he does for the first, I wouldn't get my hopes up. Huckabee? He seems basically ok on these issues. And then there's Thompson, who would be the best choice of them all.

I would rather do what is right, and to hell with advantage. If we had any spokepeople who were able to put two sentences together, standing on principle WOULD be an advantage. The DOJ continues to irritate the heck out of me.

I do, however, understand your broader point of running to the knife drawer or dialing Dr. Kervokian whenever this sort of thing happens.

I wasn't making the suggestion that we compromise our principles; I was making the suggestion that we improve the reaction time on our OODA cycles. :)

The Fuzzy Puppy of the VRWC. I've been usurped!

Hope they come out with a video and a blog today

I remember when I used to believe that every blunder made by this administration was somehow a genius tactical move. No, they are just blunders.

The other candidates need to take advantage of this blunder ASAP.

many, perhaps most, here would be cheering the government for taking this position. Try something like this:

While the Government does not challenge the Court's holding that there exists an individual right to privacy, we believe that there are instances where the government has an interest in piercing that privacy to protect the rights of the fetus or parents of a minor. Consequently, we request that the Court remand this matter to the trial court so that evidence may be adduced to demonstrate the Government's compelling interests.

If the issue were something like parental notice, most of you would be begging the government to chime in. Remember, when the enemy is in range, so are you!

In Vino Veritas

And I also think that one of the greatest faults of some gun owners in this country is that they actually believe the government doesn't have a right and responsibility to limit the kinds of weapons a citizen can own. I think the Bush DOJ has just told them: "No. You're wrong. We do. We're not going to let you buy a machine gun in Washington D.C."

It sounds to me you're arguing for a living Constitution here. If the text of the 2nd Amendment is inconvenient, then alter it, don't just ignore it.

The invention of the machine gun did not change the broad scope of the amendment.

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I'm saying that the Court has a lot of leeway to interpret the law. Fully automatic firearms have been heavily regulated since 1934. I think this brief on the part of the DOJ is an attempt by the Administration to get the Supreme Court to clarify the law.

I hate that phrase. Let's not say interpret the law. The government demonstrably has the authority to weigh the interest of the state and the interests of the individual. That idea has run amok to an extent (Kelo?) but the phrasing is still less objectionable politically than "interpret" I think.

I'm not talking practically or legally, just politically. I think this could be a good political football if handled well and properly spun.


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and we readily accept the notion that there is a compelling state interest in restricting certain kinds of speech, e.g., yelling fire in a crowded theater.

Nota bene: I'm not espousing a position; I'm sitting five feet away from a wall full of guns. I'm just trying to demonstrate that a lot of these arguments work for more than one side of an issue.

In Vino Veritas

I don't think anyone but John McCain argues that speech should be prohibited based on how powerful it is. You're allowed to shout 'fire' in a crowded theater if there is a fire, after all.

If we interpreted the 2nd amendment in 1800 the way Kowalski would have us interpret it today, then wouldn't that have prohibited the militias from having muskets and cannons, the most powerful weapons of the day, and the weapons those militias had just used to win the revolution?

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Or who has a big enough VISA card be able to own one of these?

For home defense? For personal carry? For defending their life and property?

Who decides whether just anyone can own one of these, for that matter...

I think you're saying that the government has *absolutely no right* to limit the kinds of weapons individual citizens can own, and I think that's absurd.

So I would favor a Constitutional amendment restricting the braod language of the 2nd, but I think the 2nd affords very little leeway in arms control actually.

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I can think of times when it might be handy to have a nuke or two in the garage...

You pretty much have to. I don't like the idea of leaving it up to courts to decide, and I also don't like the idea of writing laws that appear to contradict the very absolute nature of the amendment. No one is going to accept the idea that everyone has a right to ANY arms considering nature of arms today.

I think where I might appear a tad wacko is I don't have a problem with the citizenry owning belt fed weapons. I personally draw the line at large area weapons. But arguing which weapons or to what extent we restrict the language of the 2nd amendment is a-whole-nother argument. The point is I agree it should be amended.

But I'm not panicking over this brief by the Administration. I think it will help the Supreme Court clarify what they mean when they decide this case.

Cannons and other revolutionary-war weapons were orders of magnitude less lethal that someone with the necessary funds can purchase at this moment if they were allowed. I think the Bush Administration is saying:

"Sure, we support the 2nd Amendment, but we also don't want people owning railguns to 'defend' their 7/11."

Now, let's step back a second and stop all the hyperventilating for a moment and ask a follow-up question:

How did the DOJ come to file this brief? Did the President know about it? Does he support it? If so, why?

Those are unanswered questions at this moment and I think we need to find out before we go on speculating any more. It may very well be that the President doesn't know about this amicus brief and would withdraw it himself if he did.

So let's find that out first before we all go bananas.

That's fairly meaningless, isn't it? I mean, it's out there. The genie is out of the bottle. You can't put it back in.

So whatever they do, the damage is done. And what they've done is given the liberal portion of SCOTUS a road map on how to gut the second amendment, and political cover to do it.

No, it's not meaningless and no, it's not about "gutting the second amendment and providing political cover to do it."

It's about exactly what this author talks about:

In the view of the DOJ, 'shall not be infringed' might not necessarily mean you cannot ban a whole class of weapon.

And I agree that that's an important question. It needs to be answered in this case because the Court can write a decision that talks about the balance between the government's prerogative to have exclusive possession of certain types of weapons and restricting their ownership. I don't see anything wrong with that, and I don't see it as a "roadmap" for gutting the 2nd Amendment. The government *does* have a responsibility to prevent people from driving around in tanks. It *does* have a responsibility to prevent people from mounting an M-60 machinegun on their parapet. It *does* have the responsibility to prevent people from getting ahold of grenades and high explosives through otherwise "legal" channels. It needs to have the ability to *enforce* the law on those measures if it is going to combat terrorism domestically.

Like I said, I'm not panicking over this. I think the S.C. will decide that citizens in D.C. have a right to own a handgun or a long gun for protection. I'll welcome that.

And until I find out more about how this brief was filed, I'm not going to blame the President.

Cannons and other revolutionary-war weapons were orders of magnitude less lethal that someone with the necessary funds can purchase at this moment if they were allowed.

The issue isn't whether cannons and muskets were less lethal than weapons available now. The issue is the lethality of cannons and muskets in the eighteenth century. At that time, when the Second Amendment was written, those weapons were the state of the art, the era's equivalent to the M198 howitzer and the M4 carbine. And yet nobody argued for bans on purchase and possession, and the restrictions on actual use amounted to, "Please don't shoot off your artillery pieces within city limits."

Now, you can argue that the Framers couldn't have contemplated modern developments in firearms technology, and that the law needs to be flexible so as to prevent crazies from getting their hands on nukes. But that's a deeply stupid argument on multiple levels:

(1) The Framers were smart people, and had witnessed significant developments in weapons technology during their lifetimes. There's no rational reason to believe they wrote the Second Amendment expecting technology to remain frozen in the eighteenth century, or that they couldn't imagine a day when firearms would be much more deadly than the ones they were accustomed to.

(2) The law already has a measure of flexibility built into it. It's known as the amendment process. Perhaps you've heard of it.

(3) The case at bar isn't about nukes or even artillery pieces. It's about handguns, and the propriety of banning them altogether.

The DOJ is asking the Supreme Court to embrace, vis-a-vis the Second Amendment, exactly the sort of ad hoc "intermediate scrutiny" balancing test that enables and invites judicial activism. Even if you don't give a single crap about guns, if you're any kind of conservative you should find this disgusting.

foresees regulation!

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Mike Gamecock DeVine @ The Charlotte Observer

It's not just an entire "free for all." There is a "regulation" element to it. My view is that the "regulation" should be permissive but not "everything goes."

He used to make nitroglycerine and pipe bombs connected to simple timing devices and he not only blew up his neighbor's swimming pool with one but he also woke the neighborhood up on many occasions by burying them in the backyard and setting them off at 2:30 in the morning.

The 1950's were a very different time for a kid to live in. You could go down to the local apothecary and buy Potassium Nitrate and just take it home and build a pipe bomb. One of my Dad's friends as a child BLEW HIS HAND OFF as a result of that, packing down a pipe bomb that they were going to use in their local swamp for "depth sounding" on imaginary submarines while he was tamping down the charge with AN IRON ROD. BOOM!

It was a "free for all." The regulations now should be as permissive as possible but they shouldn't allow any Tom, Dick or Harry to walk into a gun shop and buy an automatic weapon.

You've just construed a categorical provision of the Bill of Rights as nugatory, and taken a view of the Constitution that's consistent with the "living document" garbage propounded by the Democrat Party.

I look forward to seeing your ox gored.

That you wouldn't find anything wrong with Larry Ellison or Bill Gates or William Buffett purchasing a brand-new F/A-18 with a full load of munitions and the intact weapons delivery systems?

What about if George Soros wanted to purchase a fully-armed Destroyer?

Why would I care, unless they start shooting the stuff at me?

Is that you wouldn't mind if anyone who has the money can purchase any weapon in the United States arsenal, regardless of how destructive it is.

My next door neighbor can purchase a grenade launcher. The dude who runs the Gas n'Sip can have a bunch of claymore mines. My stockbroker can have a bazooka. Some guy who was born in Greece but is a naturalized citizen can go and buy himself a W-82. The free market will sort it all out, right?

When he fought in the Pacific in the 40's. Should I make a list of the weapons for you so that you may turn the list over to law support so you can feel safer when you sleep at night or should I not bother?

Man is free at the moment he wishes to be. --Voltaire

1. What do we prefer?

2. What do we believe the Constitution says?

Would you accept the possibility that the Second Amendment is unworkable today without amendment?

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The subjective "destructiveness" of these various weapons systems does not concern me, at all.

What concerns me is how much destruction their owners are actually causing.

If that amount is zero, then I don't care what they do with their money.

All of these can already purchase items that can be used in ways that are just as deadly. Hit home depot and grab a couple of bags of fertilizer and the Texaco for some diesel. Guess what, you now have ANFO, a pretty potent explosive, about 80% of the power of TNT. Or even simpler, he can take his car and run you down. Are you worried about that? No? If not, then why are you worried about this?

infringed. Then again, I do think Winnebago's have no place in society without a thorough background check and license.


Molon Labe!

I just don't want some other people driving.

If we could somehow keep these undesirables from driving anything at all, even Yugos or Geo Metros, I'd be fine with you owning a Subaru.

Man is free at the moment he wishes to be. --Voltaire

include banning driving :) you know, not green enough.


Molon Labe!

better argument is that the government cannot deprive one of ALL arms for to do that would infringe, but that they can regulate amount and kind.

I am against the Bush breif.

Mike Gamecock DeVine @ The Charlotte Observer

All these "Republicans" so worried the government will lose power to regulate things, like the government does such a good job when in regulates. How about this, you guys can write me when you worry that the government is about to allow too much "freedom" on taxes. When they go too far in limiting taxes, then maybe I will entertain the idea they are going to go too far by allowing 2A rights.


Molon Labe!

about terrorist with cells in this country? You say you wou wouldn't care unless they (George Soros and Bill Gates) were shooting them at you, but lets switch the argument to Khaled Shaikh Mohammed aquiring weapons like these.

I am not entirely convinced that the word "Arms" means any weapon conceivable to man. I am also not entirely sure the founders expected or even imagined that a weapon like the atomic bomb would be developed.

There are conflicting rights in the constitution, and one could argue that 2nd amendment has to be balanced with other rights, it is not the most important right we have.

I do not accept this sweeping interpretation of the 2nd, and I think that arguing it in this manner does more to harm it. Heck, if the 2nd could be proven to support this position, I'd be the first to support "amending" the amendment.

But what if someone ran ads against (presidential candidate) that pointed out how (he or she voted against X or Y)?

I can't believe that you'd support free speech then unless you were an absolute nutcase or libertine who could be dismissed out of hand before any conversation actually took place.

So let me ask you, Kowalski...

Do you support free speech to a point where it's absurd to even discuss?

Man is free at the moment he wishes to be. --Voltaire

I don't see free speech ever reaching a point where it's "absurd to discuss." I mean it might be objectionable and people will tune it out, but at any point there's nothing worse in free speech than any of us can already imagine. There's just nothing there except words! It's not about putting pieces of metal into people's bodies.

RedState already regulates "free speech." It prohibits profanity and it does that for a very specific set of reasons. This very blog regulates what people can say on this blog, and it does it very comprehensively, for a well-defined set of reasons. It even regulates astericks and terms that might suggest certain words. It *regulates* the speech here. Every single day.

But Redstate is private property. Different rules.

That you do not necessarily have the right to own a handgun/shotgun.

Yeah, the 2nd amendment says "right to keep and bear arms" and, yeah, it says, "the people" but, let's face it... unless you have paid off your mortgage, you don't own your house.

Does the 2nd Amendment imply that you can keep rocket launchers on other people's property?

If the answer is "no", I don't see how you can argue that you have the right to own a shotgun.

Man is free at the moment he wishes to be. --Voltaire

I have already been busted for a threadjack once today but this is hard to resist. There is no such thing as private property. Fail to pay your property tax (rent) and find out.

It would be really interesting to see George Soros purchase a fully-armed AEGIS ship and use it to police his own waters, but do you really want to see it?

Also, just shifting down a gear or two, that's a very extreme view. Just saying as a matter of law that your neighbor shouldn't be able to own a grenade launcher or claymore mines or a bazooka doesn't mean that you don't support his right to own a firearm. There is in fact a very definable spectrum in weaponry: that's how the Pentagon purchases things, after all.

to take the view that the Constitution means what it says?

Gracious. Call me a firebreathing extremist, then.

When you point out how the 18th was necessary to ban alcohol, expect to bask in the glow of being a "libertine".

Man is free at the moment he wishes to be. --Voltaire

I live in a town with a lot of people who own guns, and they all get along very well with each other, but if by some chance one of them showed up one morning at the local convenience store with an M-60 and a huge cache of ammo. bolted to the roof of their truck, we'd all start to wonder about how and why they were allowed to do that.

I mean, there's nothing I can see around these parts that requires a light machine gun or a heavy machine gun mounted on top of a truck. There are some wild turkeys. There's the occasional deer. Every once in a while we see a Fisher cat or a bear. A few people need to control pests on their property. Occasionally someone tries to break into someone else's house, and once in a while someone defends themself in that instance.

But all in all, nobody around here has ever needed a machine gun, a grenade launcher, a bazooka, an antitank weapon, or any large amount of high explosive ordnance.

That anyone actually *NEEDS* the First Amentment to the point that it is actually exercised here on Redstate?

Man is free at the moment he wishes to be. --Voltaire


Molon Labe!

I guess it is good chat in a drawing room with cigars and port, but this does nothing to fight those who want to make sheep out of American citizens and destroy the Constitution. You can keep going with this in peace, I have said my piece.


Molon Labe!

you are only able to do something on the basis of your "need", then you cannot legitimately be said to have a right to do that thing at all.

"Need" is not a basis for the allocation of rights.

could actually be helpful to realistic pro 2a causes?


Molon Labe!

theory. The common man, the guy who has followed this issue exclusively for decades, understands what this is really all about. The 2A is not about f-16s or MX missiles. It is about the right to carry a handgun for protection, to have a shotgun when an intruder breaks in, to shoot a semi-auto rifle for fun or defense on your own land.

The reality is the 2A says the right to keep and bear arms shall NOT be infringed, but it is very much infringed, in a multitude of ways. The opponents of the 2A want to infringe on the rights of law abiding citizens, period.

Also, guys, please get off the talk of machine guns and LAW rockets. Look at the actual data. If this is about crime, assault weapons ane machine guns are VERY rarely used. Handguns are used in 90 percent of legal and illegal shootings. The most common caliber used to kill another human, .22


Molon Labe!

In the eighteenth century, the term "well regulated" meant "properly functioning". It did not refer to governmental regulations as we understand them today.

So, therefore, dailykos could be shut down without a violation of the first!!!

Wait, what do you mean Hillary got elected?

What do you mean Redstate violates local laws?

What do you mean we're providing "in kind" services?

Oh, well. If the law would have been applied to Kos in a hypothetical Huckabee administration, by all means, please shut us down...


Man is free at the moment he wishes to be. --Voltaire

the militia and private individuals would be as well or better armed than the regular Army. Private artillery was very common and through the Civil War most militia artillery units were armed and equipped through private subscription. The repeating rifle was very quickly adopted by civilians in The West, long before the Army adopted it. I saw a piece on the History Channel the other day about a US Cavalry unit saved in a day long battle with the Comanche by their civilian drovers and teamsters' Henry and Spenser repeating rifles when the cavalry was "outgunned" with their single shot breechloaders. The Army strongly resisted repeating rifles due to the logistic issues of another ammunition type and the much greater rate of fire.

Even today, it is easy for a private citizen to be better armed and equipped than an Army infantryman - if he has the money. As long as the citizen is willing to stay legal, the Infantryman does have that little selector switch for full auto that the civilian doesn't, but that isn't the advantage it is made out to be. And lots of civilians know how to make a few "little" modifications to a weapon to remove even that advantage.

In Vino Veritas

And lots of civilians know how to make a few "little" modifications to a weapon to remove even that advantage.

Sure. That's been true for a long time. I wouldn't do it and I don't advise anyone without the necessary license to do it, either. As a matter of law, I think what the administration is doing here is asking the S.C. to clarify the prerogative of the federal government to regulate the kind of weapons available on the open marketplace in America. I think they have that prerogative.

A second question that is still unanswered is how this brief got filed and why? Nobody knows the answer to that.

Venezuelan President purchased over 100,000 AK-47s in order to help create a civilian army. He did this to have someone to call on in case he was overthrown by the military as he didn't trust some of them. Although it was to protect his own hide and power, the fact remains, he gave them weapons that could compete with the Venezuelan military if need be.

Do you think that lethality had anything to do with the creation of the 2nd? Do you disagree with the reasoning for the creation of the 2nd? If you do not, why then would you handicap the people that would fight using these weapons? Apply your logic to the Revolutionary War. Washington's troops show up with hunting rifles while the British use SA80 assault rifles. That works - right?

The argument to limit civilians is often done by people who put more emphasis on the "scary" features than the actual rounds fired by the weapons. Is it OK to own a Remington model 700 but not an M-16 with 3 round burst fire? Same rifle round - 223/5.56, same lethality. Marines are not taught to shoot in burst fire mode, but have it if needed. Please rethink your reasoning, because a government would NEVER allow a citizenry the tools it needs to over throw it if possible. Maybe the purpose for the "shall not be infringed" part, maybe?


"How a politician stands on the Second Amendment tells you how he or she views you as an individual... as a trustworthy and productive citizen, or as part of an unruly crowd that needs to be lorded over, controlled, supervised, and taken care of."
--Rep. Suzanne Gratia-Hupp

amendments to deal with specifics, pass an Amendment that says Congress can overturn Supreme Court decisions with a majority vote. He thinks it would not be abused given the weight of authority of SCOTUS.

I do think that the word "arms" is vague and that SCOTUS can define it in circumstances.

I absolutely oppose what the DOJ is doing here.

more later

Mike Gamecock DeVine @ The Charlotte Observer

How would you balance that power then? That seems to weaken the Supreme Court, at least at first glance.

"Go ahead, make your jokes, Mr. Jokey... Joke-maker. But let me hit you with some knowledge. Quit now". -White Goodman

It would be restoring balance to what is now, an unbalanced setup.

The basic theory would be that any two legs of the three could overturn the third one on questions of constitutional interpretation. Congress, signed by the president could overturn the courts.

The other two possibilities already exist today. If Congress feels like something the administration has done, say, in an executive order, that can certainly be taken to the courts to be overruled. And likewise, the executive branch can go to court over actions of Congress.

I'd link to my old diary on this but I think non-Contributors can't see it. We'll have to fix that in RS 3.

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Congress already has a check on the SC: It has near plenary power to limit the Court's Appellate jurisdiction. It would be childishly easy to restrict the Court to ruling only on issues of fashion.

Bork's idea on the other hand would give Nancy Pelosi and Harry Reid a pretty good bite at whatever they wanted. It would also mean certain cases would be reopened to politics again and the one thing the Court is good for is letting issues die. Not all the time, but its much easier to just let something go after they've had a whack at it.

“The difference between a Republican and a Democrat is the Democrat is a cannibal -- they have to live off each other--while the Republicans, why, they live off the Democrats.” --- Will Rogers

Nowhere is the Supreme Court (let alone the inferior courts) ever granted the unilateral, unchallengable authority to nullify acts of the Congress signed by the President.

That was CJ Marshall's own little power grab.

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to settle this then and they still have the power to settle it now. They have remained silent and silence implies consent. That being said, do you really want Congress to be the sole decider as to the Constitutionality of its own legislation?

“The difference between a Republican and a Democrat is the Democrat is a cannibal -- they have to live off each other--while the Republicans, why, they live off the Democrats.” --- Will Rogers

The Congress can't act without Presidential support on anything unless it comes up with a veto-proof supermajority. So actually I'm fine with that.

And frankly, even if it could, I'd rather the Congress have that power than the Courts. Because right now it's the Courts that claim the sole authority to intepret the Constitution.

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Congress restricted the courts jurisdiction re illegal enemy combatants, but a 5-4 Kennedy court found a way around it.

Congress passed a law requiring a de novo hearing in the Schiavo case and no court held one.

So it seems to me the only way to solve it is impeachment and appointing justices with judicial restraint.

I even question whether new constitutional amendments would work, given how the court defies the obvious meaning of the Constitution and amendments that exist now.

Mike Gamecock DeVine @ The Charlotte Observer

proportion to the point that they have usurped We the People's power to self government. We have traded in a King for 5 Oligarchs in many areas of law.

Mike Gamecock DeVine @ The Charlotte Observer

This may be the Administrations second "Harriet Miers Moment." Meaning that the Administration is putting this foward expecting that if the Right in this country really objects to it they'll register their complaints vociferously.

Let me be clear:

I would have preferred if the Administration hadn't filed a brief at all in this case, of any kind.

Now that it has, it strikes me as another one of those: "If the Right is willing to really fight, we'll back down" kind of days.

If you think the Miers nomination was anything other than a disasterous failure of judgment, I have a bridge here to sell you.

so I will post a blog on this.

It really is an interesting and important issue: is there a coherent conservative consensus on the issue of guns?


"When men fear work or fear righteous war, when women fear motherhood, they tremble on the brink of doom; and well it is that they should vanish from the earth." - Teddy Roosevelt

I didn't think that the guy wanted to buy a machine gun, but a simple handgun.

Saying "well, if the guy wanted to own a death star, would we let him?" is an interesting question, but not as interesting as "the guy wants to own a handgun and the law says he can't, is this a violation of the 2nd Amendment?"

Man is free at the moment he wishes to be. --Voltaire

First, agree or disagre, machine guns have been effectively banned for some time now. I fail to see the connection to this amicus, which I have read several times.

The Second Amendment history is complex and filled with boisterous debate. People such as Rufus King even made statements at the Constitutional Convention, and I paraphrase, that "people who hade so readily taken up their arms, will not so willingly put them down". There is also talk of caliber and type of arms within the debate on how best to construct this phrase. If you have not read it, take the time. This was carefully crafted for a reason.

Frankly, this amicus is meant to provide the Federal view and is overbearing. In the framers minds, it may not only have been unwelcome but seen by some as a clumsy, ill timed intrusion.

"Nec Aspera Terrent"
bene ambula et redambula
Contributor to The Minority Report

We're not talking about some "eminations of a penumbra" here. We're talking about written language that a literate 18th century man could understand. That may make it hard for a 21st century DoJ lawyer, but that's his problem.

As soon as SCOTUS took the case, I figured that the 2nd A could turn into a key issue for the 08 elections. DoJ has just invited SCOTUS to expand the reach of their ruling.

Did anyone really expect that this Administration was going to come out in support of people who want to own fully-automatic weapons? This has been one of the areas where I think some of the comments on this blog in particular have been extremely imprudent.

If you can't say anything nice, don't say anything at all. For DoJ to intervene against gun rights is a slap in the face to all the gun rights activists who supported this administration.

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I don't support people owning fully automatic weapons except in limited domanins. The government does have a right to restrict the ownership of those weapons.

...considerations that are the concern of the OP):

Fully-automatic weapons are weapons of war. They're not practical for street crime, so as a day-to-day law enforcement issue, the ban is of limited value.

If I had to guess at the DoJ's motivation here, I'd say they were looking for a legal basis to take action against potential terrorists. Especially in DC.

I think that's a part of this. It really would not make much sense for the GWOT President not to request a clarification from the Supreme Court on that matter. Should anyone be able to walk into a gun store in Virginia and if they have a license purchase an M-60?

Well we had a big problem with people getting pilot's licenses a few years back, so...

I think that's the Administration's motivation here. At least I hope so. I want to hear more about how this brief got filed and why it was done before I make my decision though. I know Bush has been a staunch 2nd-Amendment supporter and I don't think this was a "colossal blunder" it's more a signal to the Court that they need to apply a little bit of extra thinking to their ruling. I'm not panicked about it.

The founding fathers would have said yes.

My personal opinion, yes, subject to a background check.

And from your post, I'd guess that you disagree, for fear of a terrorist getting one, then using it in a terrorist act. But guess what? Terrorists will always be able to find something deadly to use. Just for one quick example, you could probably steal enough materials from most farmers to create a bomb way more deadly than one could be with an M60. So we give up our freedoms, for a security that is entirely illusory.

That's not to say that there isn't a line. There's always a balancing test. Nuclear weapons? Probably not a good idea for private ownership. In that case, the security gain isn't illusory. But the presumption should always be that it's allowed, rather than forbidden.

As if the 2nd Amendment was merely about being able to hunt. It's a prohibition on the gov't to prohibit the people from owning weapons of war.

One might be able to interpret this down to mere infantry weapons since that is what militia service would typically entail (as the Supreme Court essentially did in US vs Miller - 1939).

I also disagree with the idea that Bush is a "staunch 2nd-Amendment supporter." He, like Romney today, said they'd sign the Assault Weapons Ban back into law.

Please show me where Bush said he'd sign the AWB back into law.

"Mr. Bush said during the 2000 campaign that he supported the ban on 19 types of semiautomatic weapons passed in 1994, and he has repeatedly pledged to sign an extension if it reaches his desk." - NY Times

You can also read about it at the Brady Campaign and their complaints he didn't push congress hard enough to fulfill his promise of signing it if it got to his desk.

Also here from

Thanks for the information. I didn't know Bush had said that.

Why have I been supporting this guy all these years?

Because his opposition was so odious.

Man is free at the moment he wishes to be. --Voltaire

The Fuzzy Puppy of the VRWC. I've been usurped!

but why would this administration chose to blur the lines when they could be clarifyning the lines and actually , helping their supporters?


Molon Labe!

My answer was in past tense.

Thankfully, this six-pack is in past tense.

Man is free at the moment he wishes to be. --Voltaire

I took at as just a pander, knowing Republicans would never pass it, but he did say it. Drove Sen. Feinstein nuts that he teased her in that way, promising it but never lifting a finger to get it passed.

HTML Help for Red Staters still made me very uneasy voting for him, just as Romney's continued support of it drives me up the wall today.

That Romney's not going to backtrack on his support for AWB either. At least, he hasn't so far, and I've asked him to do it on many occasions.

He's waiting for the Supreme Court to sort it all out before he says anything risky.

it is immaterial what you would support. RKBA isn't limited in the fashion that you would like it to be. The right to keep and bear arms must include full autos, AOWs, etc. Do we, or do we not, believe in an originalist view of the Constitution?

That leads us to results that we wouldn't otherwise agree with under any other circumstances. For example, I feel that anyone who used drugs is a fool. I also see no place in the Constitution where the federal government has the power to ban them. I don't want to say that they should be legal, but I have to do so.

We absolutely do have the RKBA but we also live in a complex society and we are currently at war. The fact that we are at war against a largely stateless entity that has shown every indication of understanding our laws and restrictions in order to use them against us is precisely why we need good judgment on this issue, not just people spouting off at the mouth saying: "Everyone should be able to own automatic weapons."

I don't quite follow you. I would think that the fact that we are facing a well-armed entity would make us desire to be better armed, not to limit ourselves to 75 year old technology. In any case, how does that relate to our Second Amendment rights? Arguing that rights can be modified like that is what the liberals do, not people like you who I respect. That is like supporting McCain-Feingold because our society is complex and idiots could speak freely or donate, potentially messing up an election. True as that might be, it is still a First Amendment violation and therefore, wrong.

Nice people don't own weapons. Only mean people own weapons.

Making a law that says "You can't own weapons!" won't affect nice people.

It will only affect mean people.

If you disagree with this argument, it will pretty much point out to the world that you aren't a nice person... but a mean one.

Are you willing to say that you are a mean person? Really?

Surely you understand that the terrorists who destroyed the Twin Towers on 9/11 were mean people as well...

Are you still willing to align yourself with terrorists?

Man is free at the moment he wishes to be. --Voltaire

actually anyone with a clean record an $200 (for the BATF tax stamp) CAN own automatic weapons. Are you going to call your Congressman to complain on monday? It has been around for 70 years. I must admit, I see where Bush types come from after reading this thread. The scariest part about gun control is the laws are made by those who know the least about guns, the Founders, and crime, and I am talking Demos and Repubs.


Molon Labe!

The most effective rifle is the one that facilitates the operator in making an accurate shot. Automatic weapons in civilian hands are not accurate weapons. I would much rather have 10 million Americans armed with really good bolt-action centerfire rifles and excellent scopes than I would a few hundred thousand armed with machine guns. The guys with the good bolt-action rifles would win *every time*.

allowed to protect my family with.


Molon Labe!

is in a defensive position in works or, at least, with cover. The MG was made to deal with infantry in the open, see, e.g., WW I. At 600 or so rounds per minute, you don't have to be very accurate.

In Vino Veritas

Actually, I was not aware that the SCotUS was likely to rule in a way that would make overturning the NFA possible, or even likely. Still, the NFA's only been in place since the 60's. It's not as though the country was a lawless war zone prior to 1968.

But the gist of your comment is absolutely correct.

The DC case is not about the "regulation" of certain classes of firearmes, it was about the total ban on handguns and the restriction on long arms being so onerous as to effectively make them useless for self defense.

I'm not certain that this position taken by the DOJ is targeted at the goverment's ability to "infringe' in some capacity but to bring into question the lower court's approach to "opening pandora's box" regarding what is determined to be classified as "arms".

I know this issue has been debated to death and many ultimately bring up the old canard "can we individually own nuclear weapons then?" As with the whole construct of the 2nd Amendment, one who is truly interested in appreciating what the founding fathers were referring to as "arms" they simply need to spend some time in the Federalist Papers regarding the debates on that portion of the Bill of Rights.

As I recall, he wanted an F-16. The manufacturer couldn't think of a reason not to sell him one (without classified equipment like battle avionics and encrypted communications gear). But they figured they ought to check with the DoD anyway.

The Pentagon decided that the world would not be a better place with Larry Ellison flying around in an F-16. (No word on whether Oracle's board had any objections to their most valuable asset taking such risks, either.)

So he tried to buy a MiG from the Russians. That didn't work either so he ended up buying a Marchetti.

Lots of people privately own older fighter planes, but quite rightly the government isn't going to allow private citizens to buy a frontline fighter aircraft to toy around in.

Larry does more damage to the world just by going to work every day, than he ever could in an F-16.


Scratch that...

Forget I ever said it...


...rather than the other way around.

After all, he thinks business is a blood sport.

(even though my next-door neighbor works for him...)

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Chief is right, this is about BANNING guns in DC, not regulating automatic weapons. The ramifications of the SCOTUS overturning has the effect of saying that any juridiction has the right to abrogate the 2nd Amndment rights to TKBA if it sees fit, to the extent it sees fit.
Given that the majority of people now live in urban zones (all of which are controlled by liberals), how long do you think it will take before we have SanFran/LA/NY/Boston/Chicago/Baltimore type laws governing firearms possesion for much of our population?
For an example, look at the emminent domain issue. Like the way that's working out?

Folks, the 2nd was put in the Constitution behind Free Speech only because it is there to protect free speech! (despite what Mccain says. It is the ultimate insurance policy placed in our governing document to keep the slimy politicians from gaining too much power.
For another example, look at how the EU (unelected bureaucrats all)is ramming thru thier hideous constitution over the actual negative votes of thier subjects citizens. Gun rights in Europe? Hah, only the government has guns (and pointy knives in England). They know how to control a society.

They fully understand that an armed man is a citizen, and an unarmed man is a subject.

I have come to the point where I absolutely can not stand the man I voted for. Twice. I feel betrayed on so many levels - looking forward to 1/20/09 and good riddance.

We regularly regulate stuff to the point where it is effectively banned. Marijuana is regulated, not banned. You just have to get a permit from the treasury department if you want to grow, distribute, or possess it. Good luck with that.

Concealed carry is effectively banned in a lot of cities, because it is regulated in such a way that the police chiefs have total discretion in the matter, and they just give a blanket denial to anyone but their friends and those with the right connections.
Underlying most arguments against the free market is a lack of belief in freedom itself. - Milton Friedman

It would be helpful to hear the administrations view but not necessary reading the Amicus. I won't judge overall intent since that's impossible unless SG states exactly why this was filed in the first place.

Nonetheless, at it's essence the ban was about complete elimination of a fairly clearly articulated Second Amendment Right. Simply put, the DC ban was a Second Amendment abrogation. It was specifically crafted to try and avoid legal scrutiny. Nonetheless, it's purpose was to sufficiently vitiate or subvert an articulated Constitutional Right both grounded in history and case law. That's not only dishonest, but intolerable and the system realized that vis-a-vis our appeals process.

I can't find any sagacious reason why such amicus would be files other than some type of legal mistrust. Irrespective of how this is grounded, it is up to a system which is working correctly thus far to finish the process. Do they not believe SCOTUS will ultimately provide the correct, originalist remedy? Who can say; but given the loquacious amicus reasoning, this appears to be very misguided and unecessary.

"Nec Aspera Terrent"
bene ambula et redambula
Contributor to The Minority Report

Dubya has run his last election and doesn't need us suckers any more. So now he returns to his daddy's roots as a Rockefeller Republicrat.

Thus is the plight of the Republican Grass Roots...Promised the moon during the elections and left by the side of the road when it's time to govern.

To compromise with evil is to corrupt good!

Go Mike Go!!!

Try out a few years of McCain. The disappointments and outrage of conservatives will be constant.

Oh, it's a cat, in that case OK.

The HinzSight Report
Managing Editor

........even under strict scrutny, machune guns can be regulated but not banned.

Regulation is not banning. I'm not in favor of BANNING. I think the government does have a prerogative to *REGULATE* however, and I think (or at least I hope) that the Bush Administration is asking for clarification on this subject.

If some people have misunderstood me in this thread I hope to correct it now. The government *does* have a very good reason to regulate, even to strictly regulate, certain classes of weapons.


Molon Labe!


Molon Labe!

like pro-lifers after Planned Parenthood v Casey. You know Justice Kennedy won't go to the right of the Administration.

How the affects the election depends on who wins the nomination, and how the nominee and Congressional candidates play their cards.

"No compromise with the main purpose, no peace till victory, no pact with unrepentant wrong." - Winston Churchill

Because no one who was upset about this would blame the Republican party generally rather than focusing all their ire on the President, AG or SG?

The Administration? What Administration? Bush is to administration what Goldilocks is to striptease, what Bill Clinton is to chastity, what polar bears are to saunas. He probably heard about this for the first time when his briefers gave him the news over 5:00am coffee. And if not, what difference does it make? Under Bush the Departments, the bureaucracy, has been doing what it wants anyway Reminders and examples are both plentiful and painful.

Half serious, half kidding, but with bitterness all around.

"a man's admiration for absolute government is proportinate to the contempt he feels for those around him". Tocqueville

This is incorrect:

The news broke late last night that the Department of Justice has filed an amicus brief in the DC Gun Ban case, asking that the Supreme Court overturn the Court of Appeals decision ...

Where in the government's brief do you read a call for reversing the court of appeals? I'll tell you where: nowhere. I know that because I've actually read the brief. I find it useful to read a document before remarking upon it.

The government wants this case remanded. And upon remand, it wants the court of appeals to apply "heightened scrutiny" to the DC statutes at issue here. What's more, the government thinks the court of appeals may well reach the same conclusion on second pass that it reached the first time, namely that DC's ban on handguns is unconstitutional. (See Brief at 9.)

The government was never going to argue -- and the Supreme Court will never hold -- that Second Amendments rights are absolute, immune from any regulation, or that individuals may possess any kind of weapon they jolly well please.

This is the most important gun rights case in the court's history. And the government is expressly urging the court to acknowledge an individual right to "commonly-used and commonly-possessed" firearms, subject -- as all rights are -- to regulation.

If you disagree with the government's brief, fine. But do not misrepresent it. This isn't Daily Kos or Democratic Underground. Conservatives are supposed to be sensible people who concern themselves with, among other things, the facts. In this instance, acquisition of the facts begins with reading the brief.

the government is attempting to stop the reversal of the gun ban. They are asking to tie the courts up for a few more years while DC residents continue to be victims.


Molon Labe!

And the government is expressly urging the court to acknowledge an individual right to "commonly-used and commonly-possessed" firearms, subject -- as all rights are -- to regulation.


The government is expressly urging the Court to hold that the D.C. Circuit incorrectly applied a "strict scrutiny" standard of review, and to remand with instructions that an "intermediate scrutiny" ad hoc balancing test ought to be used instead.

That's not asking the Court to acknowledge that the individual right to arms is subject to restrictions. It's asking the Court to essentially render the Second Amendment a dead letter in favor of the subjective policy preferences of federal judges.

Brief at 9:

Given that the D.C. Code provisions at issue ban a commonly-used and commonly-possessed firearm in a way that has no grounding in Framing-era practice, those provisions warrant close scrutiny under the analy-
sis described above and may well fail such scrutiny.

this? Why are conservative websites around the web saying what the OP said? Are you the only one who can read a brief and understand the intent? The Bush administration has a poor Second Amendment record and this Justice department has been very active in squashing all atempts to increase individual liberty. Look how they attack the World Trade Organization over online gambling? Look at how the Bush Department of the Interior ignored a petition for ruling to increase gun rights in National Parks that was signed by groups representing over 1 million citizens.

I do not know if you are trying to be the cool guy lawyer or if you are really telling us "there is nothing to see here", either way it will not work.


Molon Labe!

Pages 23-24:

Accordingly, when a law directly limits or prohibits 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 judicial scrutiny, but not to the type of per se rule suggested by the court of appeals. See Pet. App. 53a.6. In
conducting the appropriate inquiry, the reviewing court should consider (a) the practical impact of the challenged restrictions on the plaintiff ’s ability to possess firearms for lawful purposes (including the nature and practical adequacy of the available lawful alternatives), and (b) the strength of the government’s interest in enforcement of the relevant restriction. Cf. Burdick v. Takushi, 504 U.S. 428, 434 (1992). Under that approach, the “rigorousness of [the] inquiry” (ibid.) depends on the extent to which a law burdens Second Amendment rights, and important regulatory interests are typically sufficient to justify reasonable restrictions on such rights. See ibid.; Timmons v. Twin City Area New Party, 520 U.S. 351, 358-359 (1997).

(Emphasis mine.)Pay particularly close attention to footnote 6, where the government analogizes to the difference between the concurring and majority opinions in McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995). But note the sleight of hand: while the government analogizes to a case that distinguishes between a per se rule and strict scrutiny, the government is not asking for strict scrutiny to be applied here. Rather, from page 8:

Under that intermediate level of review, the “rigorousness” of the inquiry depends on the degree of the burden on protected conduct, and important regulatory interests are typically sufficient to justify reasonable restrictions.

This is lawyerese for "intermediate scrutiny" or "ad hoc balancing test". See also, page 28:

The district court dismissed respondent’s complaint based on the erroneous view that the Second Amendment does not secure any individual right “separate and apart from service in the Militia,” Pet. App. 83a, and thus did not engage in intermediate scrutiny or indeed in any consideration (or fact-finding) on the constitutionality of the D.C. laws. The court of appeals appears to have erred in the opposite direction.

(Emphasis mine, again.)

In short, you were and are wrong. The government is asking the Court to find two things:

(1) That the D.C. Circuit was right insofar as the Second Amendment protects an indivdual right.

(2) That the D.C. Circuit was wrong insofar as that right automatically invalidates an absolute ban on handguns, and that it should have considered the D.C. government's interests in the regulation as weighed against the burden the ban places on individual rights. Under such a formulation, the ban might still be unconstitutional, but this depends on how much credit judges are willing to give to the D.C. city government's rationale for the ban.

it appears at first glance that a key issue in the DOJ brief is why or how long guns are less practical or valuable then hand guns for the purposes of home defense. That the question of relative importance between the two was not adequately addressed by the Court and presumptively long guns might satisfy the need for self protection. So when the case goes back to a lower court, and remembering that's where it came from on appeal, a burden of proof could conceivably be placed on the hand gun owner to establish that a long gun's inadequacy for purposes stated necessitate hand gun ownership.

As I said, I could be wrong but will follow up.

"a man's admiration for absolute government is proportinate to the contempt he feels for those around him". Tocqueville

Err by Gildas

I did read it, thanks. The govt position is that Silberman's opinion got it right on the individual right portion but did not apply the right test thereafter, hence wanting to remand it.

In order to remand the case, they first have to vacate that part of the decision, i.e. overturn it.

Now, maybe after much wrangling the case comes up with the same result - but maybe it doesn't. Maybe, the result of an intermediate test is to render the 2nd Amendment as hollow as the 14th Amendment was after Plessy v. Ferguson.

In the meantime, the political impact of this unnecessary brief is going to be enormous - which was the point of my original post!

Long time lurker, I finally had to sign up on this issue.

One of the head litigators for this case from the Institute for Justice came up to my law school to talk about this case prior to it being granted cert by the S.C. He said something interesting about the case which is basically that they have met with large scale resistance on this issue from certain pro-Gun members of Congress, as well as portions of the Gun Rights lobby including the NRA. He mentioned a few reasons for this including, fear the IJ wouldnt handle it properly and fear they would lose, and more importantly for groups like NRA, loss of potential fundraising.

This decision by the administration seems extremely unexpected, but it would not suprise me if both of those came into play in this announcement.

Why Republicans will be glad when he is gone.

Who knew they were going to stick it to 2nd Amendment rights voters as well as the rest. I guess he thinks it's payback for conservatives not endorsing AMNESTY.

Can't be soon enough for me.

No more Bush's. no more Clintons. Clean break with the past.

a fair bit of damage domestically.


Molon Labe!

WTF? Why is the 2nd amendment so hard for people to underdstand? This is crazy.

New Orleans......Proud to Swim Home!

First off, this has NOTHING to do with automatics or machine guns. This has NOTHING to do with background checks. This is strictly about a TOTAL CATEGORICAL BAN on all firearms.

From a tactical standpoint, this is one of the biggest FUBARs I've ever seen. Without us gun owners, Bush would never have been either governor or president. This administation did not have to do anything here. Instead this administration goes out and files an amiecus brief on the same side as the Butcher of Waco, Janet Reno. This in an election year, where Republicans need all the help they can get. Gun owners are not going to see this as a middle ground. It's not anyway, and I'll get to that later.

From a 2a perspective, this is a stab in the back. We go out as the swing vote, hit the doors, upset Gore in Tennessee and New Hampshire in 00 and defeat John Kerry in Ohio. This is our thanks. This is our biggest case in 70 years for all the marbles, and the Bush administration helps the worst city in the country for our 2nd Amendment rights on a case involving a total firearms ban. This isn't about automatics or even those ugly guns the media calls so called "assault weapons." This is about basic pistols and working shotguns.

Here's the brief. We report, you decide.

The brief is posted above. The Bush administration wants to remand this back to the lower court for more proceedings so the court can decide if a pistol is a "militia weapon."

Here's a very simplified version of con law 101. There are three types of scrutiny. Strict Scrutiny, Intermediate scrutiny, and rational basis review.

Under Strict Scrutiny, government needs a compelling reason for the law to be upheld.

Intermediate scrutiny is more complicated and probably would not apply here.

Under rational basis review - almost all laws are upheld (with the exception of Lawrence v Texas, Romer v Evans, US v Lopez, and Printz v US) The two issues there were laws against sodomy, gay rights, and ironicaly, two gun cases (1000 ft from a school ban, part of the Brady Bill) Most laws are given rational basis review treatment. Heavy deference is given to legislatures under that type of review. Burden of proof is on Heller then, not the government.

What I don't understand is how this can be anything other than strict scrutiny. If we have all these expanding "substansial due process" rights under the 5th and 14th amendment as the court says we have over the last 40 years (Griswold, Roe v Wade, Doe v Bolton, etc etc) and anything related to those given strict scrutiny. If anything related to discrimination and protectionism is given strict scruting. How can the 2nd Amendment not be given the same treatment regarding strict scrutiny? For the Bush administration to push for denying strict scrutiny to our rights, which unlike "abortion", is written out specificaly in our constitution, is a slap in the face to all of us gun owners across the country.

The Bush administration's brief sucks for us. What they are saying is that we have a right to keep and bear arms, but it is not a FUNDAMENTAL right. It's a right that should be treated the same way the 10th amendment is treated in their eyes. Lots of restrictions. Bush admin has some good writers on their team, I'll give them that much, but this filing sucks and I'm going to be giving some people a real earful on Monday.

Thank a lot, you jackass. With "friends" like you, I don't need any enemies. Don't be shocked if gun owners stay home this fall. If they do, thank the idiot there now.

is that the D.C. rule was a HANDGUN ban only. Not speaking out for or against it, only pointing out that shotguns were and are allowed.

“The difference between a Republican and a Democrat is the Democrat is a cannibal -- they have to live off each other--while the Republicans, why, they live off the Democrats.” --- Will Rogers

Shotguns were allowed, provided that either:
1. A trigger lock was on them at ALL times.
2. The gun was disassembled
3. The gun was unloaded.

That makes it tough to legally use for any lawful purpose.

but the same rules applied. Also, the regulations concerning the carrying of arms theoretically would prevent someone from moving a rifle or shotgun from one room to another in their house.

Another point is that target shooting and hunting were the only exceptions to the requirements that firearms be kept locked/disassembled and unloaded. Self-defense was not an exception, so using a firearm to defend self or family is illegal in Washington D.C.

In all fairness, Sandra Day O'Connor decided "strict scrutiny" was too much (but rational basis wasn't enough for her), so she went off and invented a new standard all on her own she called an "undue burden." Casey then overruled Roe's strict scrutiny standard and replaced it with O'Connor's (despite having never once garnered the support of more than three justices and having never been used in any other case based on similar imaginary "rights"). It isn't much of an improvement though.

I've made the suggestion before that perhaps that undue burden test could be used here somehow. We just have to convince the court that owning big guns is how some people define their own concept of existence, of meaning, of the universe, and of the mystery of human life.

PP v Casey was probably one of the three worst decisions I've ever read from SCOTUS. Right up there with Lochner and Grutter v Bollinger (Affirmative action and the "25 years" ruling)

What this country needs is a party for Conservatives.

Or, rather, there are regional Conservative Parties, I think.

The bigger problem is that consigning movement conservatism to the domain of a third party pretty much guarantees it the sort of power and influence today accorded to the likes of Libertarianism. Better, then, to attempt to influence one of the major parties from within, than from without.

Philosphy is important, but getting policy enacted counts too, and for that we need right-wing allies who aren't conservative.

And that means building something that looks awfully like the Republican Party.

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