THE SELL-OUT...from the SHOOTING WIRE

From the ever-intelliget Jim Shepherd at the SHOOTING WIRE:

Hanging Together in the District

Across the internet discussion boards and various news outlets, there is a generally screech of indignation and betrayal going up over the Justice Department’s filing in regards to the case of The District of Columbia versus Dick Anthony Heller.

If you’ve been in suspended animation or something for the past few months, here’s the skinny: Dick Heller (and others) sued the District of Columbia, challenging the district’s 30-year old firearms restrictions. The Heller argument: the Second Amendment of the Constitution of the United States says there shall be no infringement upon the right of a citizen to keep and bear arms. In other words, the District’s gun ban- that has been held up as the standard in many other instances of case law, is unconstitutional because it deprives a law-abiding citizen of the right to self-protection in the form of a firearm.

The indignant screams come following the Amicus Curiae (friend of the court) brief field by Stephen R. Rubenstein, Chief Counsel of the Bureau of Alcohol, Tobacco, Firearms and Explosives, and Paul D. Clement (et al) the Solicitor General and Counsel of Record for the Department of Justice.

In this filing, the Department of Justice tries, as is the habit of the ATF and other bureaucratic organizations, to have it both ways. On one hand, it talks about the fundamental right of the Second Amendment. In a later statement, the case is made that the District of Columbia’s ban should, if not upheld by the Supreme Court, form the base upon which “reasonable restrictions” could be based.

The reasoning? The Justice Department has used the ban as the basis of cases it has argued in the past. In other words, it may have been wrong, but we used it as a reference, and that should be good enough to set the groundwork for “reasonable restrictions” on gun ownership.

Further, the filing argues, the respondent did not claim a “legal right to carry a handgun outside his home” so the court was not required to “consider the more difficult issue whether the District can ban the carrying of handguns in public, or in automobiles.”

The brief also argues that the Court of Appeals accepted, at least superficially, that the district had the right to require that privately-owned firearms be registered, despite the finding that the ban itself was unconstitutional.

The reasoning? Incorrect standards were applied by the lower court. Today’s standards, should be “interpreted in the light of context and history”.

>From my chair, those are fighting words. “in the light of context and history” is the phrase most commonly read when activist jurists are legislating from the bench and basically tossing out the canons of law for the rubber-ruler of “modern standards.”

As General Norman Schwarzkopf once asked “what is it about the word NO that you don’t understand?” Not infringe should mean exactly that. The attempt to outlaw guns in the hopes that eventually the supply of guns will dry up and eliminate the gun problem isn’t just intellectually bankrupt; it’s also the kind of lazy legislation and law enforcement that leads to bad laws. The majority of bad laws on the books today are the result of trying to apply a broad-brush approach to a narrow situation. The law’s don’t fit and create more problems than they cure.

Bluntly put, passing legislation that transforms otherwise law-abiding citizens into criminals isn’t just lazy, it’s stupid. After all, it has been proven throughout history that the only people impacted by bans are the people to whom the law has meaning. Criminals are not deterred by rules, they are deterred by law enforcement AND a citizenry that will not allow itself to be victimized. When a criminal sees someone capable of self-defense, they generally look for someone else to victimize.

So, the Justice Department argues for the District of Columbia’s gun ban. In their minds, I’m certain they have no other option. After all, what they categorize as “categorically” precluding any sort of ban calls other issues into question. Among them, the federal bans on ownership of certain firearms (read that as machinguns and AOWs – or “any other weapons” the ATF’s catch-all phrase for a variety of hard-to-categorize arms

In other words, the Justice Department feels the District of Columbia’s ban should be upheld –simply to prevent existing federal statutes from being examined.

Three key points are raised in the argument:

1. Congress Has Authority To Prohibit Particular Types Of Firearms, Such As Machineguns;

2. Congress Has Substantial Authority To Ban The Private Possession Of Firearms By Persons Whom Congress Deems Unfit To Keep Such Weapons;

3. Congress Has Authority To Regulate The Manufacture, Sale, And Flow Of Firearms In Commerce.

Based on those three arguments, the Justice Department recommends the Supreme Court “remand the case to the lower courts to permit them to analyze the constitutionality of the D.C. Laws at issue under the proper constitutional inquiry.” In other words, it would please the Justice Department and the ATF if the Supreme Court simply pushed the whole matter back at the lower court with the instruction to “check this over again and see if you can’t find another way to interpret the Second Amendment so we can keep the gun bans in effect in the District of Columbia.”

If the Supreme Court says not, the friend of the court brief warns, other fundamental regulations (like those under which the ATF largely exists) could be called into question.

That, in the eyes of politicians and bureaucrats, might not be a good thing, but their lofty conclusion says it far better than I:

“The Court 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.”

This isn’t a case of the Bush Administration selling out, despite the fact that others – more erudite than I – have said it is. It is a case of bureaucrats selling out the law for some job security.

I may be a cynic, but I couldn’t imagine them acting otherwise. To do so would help make the case that a lot of what they spend their time doing at the ATF, including hassling legitimate businesses over clerical errors, really doesn’t have much to do with either law – or enforcement.

--Jim Shepherd