The Bush Administration's Support for Gun Control

More evidence emerged this month that the gun debate is turning a corner in America.

Only days after signing the first gun control legislation in over a decade, the Bush Administration has now disavowed the most extreme outcomes implicit in the gun lobby's view of the Second Amendment.

In its brief in the D.C. v. Heller case pending in the U.S. Supreme Court, the Bush Administration acknowledges that because of the "unquestionable threat to public safety that unrestricted private firearm possession would entail" that "various categories of firearm-related regulation are permitted by the Second Amendment."

The Brady Center welcomes this surprising development. It demonstrates the problem with the "private purpose" interpretation of the Second Amendment. This view might have sounded good politically to the Ashcroft Justice Department [pdf], but now the Bush Administration realizes that the lower-court decision could "cast doubt on the constitutionality of" common-sense gun control laws like the "federal machine gun ban," the restrictions on firearm possession by felons, and the licensing of gun dealers.

Rather than defend the long-standing view of virtually every Federal court - that the Second Amendment has an obvious militia purpose, and is no barrier to the adoption of gun control laws by legislative bodies responsible for providing public safety and for weighing competing views on the effectiveness of and need for such laws - the Bush Administration brief proposes a "heightened scrutiny" test when the gun control law "has no grounding in Framing-era practice."

This test would consider the "practical impact" on the individual ("including the nature and practical adequacy of the available alternatives") and the "strength of the government's interest in enforcement of the relevant restriction."

This case-by-case approach would permit "Second Amendment doctrine to develop in an incremental and prudent fashion," according to the Bush Administration. Judges in different parts of the country could presumably reach different decisions on similar gun control restrictions based on the different law enforcement challenges in those communities.

Do we really want judges making those decisions rather than democratically-elected legislative bodies? Nine national police organizations have joined the Brady Center's brief [pdf] defending the pre-Heller state of Second Amendment law, which gave this power to communities.

Police and mayors and district attorneys (all of whom are on briefs supporting the District of Columbia) know that gun control laws that make it harder for dangerous people to get dangerous weapons help keep their communities safe.

The Second Amendment should not be a barrier to the adoption of sensible gun laws that help save lives. We're glad that the Bush Administration seems to agree.

(Note to readers: This entry, along with past entries, has been co-posted on bradycampaign.org/blog and the Huffington Post.)

Comments

[shedances]

We all live here, Gun Crowd! We all have a say in the weapons present in our society! Moreover, I find it unfortunate that those of you coming here, continue to purposely overreach & wrongly generalize about the wording/intent of the 2nd Amendment in order to set back (desired, necessary...) gun measures, & make available all types of firearms without consideration for the very real harm those weapons do.

Kelli

[kaveman]

Can someone please answer a simple question for me?

How is the National Guard, which is...
1. Paid wages by the federal government
2. Equiped with gear paid for by the federal government
3. Trained on federally owned land
4. Can be called to action by the executive branch(president) over the protest of a state's governor


...a state militia?

For those who believe that the 2A refers to a states' right to form and maintain a militia( as it has been covered, people have rights, states have powers) then this right has been usurped by the federal government in all 50 states.

In effect, for those who believe that the 2A is a states' right, then you must admit that the 2A is a dead letter.

No substance, empty language, a waste of ink on paper.

When in reality, the 2A is a personal right to be exercised when those who believe otherwise try to infringe on that right.

Say what ya want(another handy little personal right), but my rights are non-negotiable when dealing with "all enemies, both foriegn and domestic."

[shedances]

I should add, too, that contrary to what the gun-crowd often asserts ... people killing & maiming one another with such firearms in this country is not some natural ~ or even romantic ~ outcome of the Second Amendment & 'right to keep and bear arms,' etc. When someone fires a gun & then robs another human being of his/her future, it's a pity! It's not an acceptable consequence of easy firearms availability &/or access.

K

[Mark0]

On that subject, K, just what is your affiliation to the Brady Center?

Your referance to donations that "keep coming" rather seems to implicate you as being in the employ of the B.C., contrary to your previous assertions.

M0

[shedances]

After all we've witnessed lately in terms of gun murders/rampages ... does the biased, self-interested Gun Crowd frequently posting here still fail to understand that we all live in a common world that has the potential for being safer ~ or more dangerous ~ based on our actions, judgments & decisions?

What a 'collective fool' the gun-crowd makes of itself on this issue of firearms rights! These obnoxious individuals continue to distort the meaning of the 2nd Amendment & purported firearms rights. However, such ill-advise & comments doesn't change the very real fact that there is no such thing as an unregulated constitutional right to bear arms in this country.

Good gun laws are perfectly appropriate & necessary in our violence-ridden society.

I am, nevertheless, encouraged by others' abilities here to see reason in such angry disputes over the Supreme Court case; & I'm also glad that Paul Helmke & the Brady Center are continuing their analyses/work on this challenging issue.

Kelli

[mike101]

It's funny. The ultra-liberals (and lots of other people) are constantly bad-mouthing George Bush whenever he shreds the Constitution and the Bill of Rights a little. But, when he shreds the 2nd Amendment, they are all for it.

[MSorgy]

Paul:

You write above...

"This test would consider the "practical impact" on the individual ("including the nature and practical adequacy of the available alternatives") and the "strength of the government's interest in enforcement of the relevant restriction."

This case-by-case approach would permit "Second Amendment doctrine to develop in an incremental and prudent fashion," according to the Bush administration. Judges in different parts of the country could presumably reach different decisions on similar gun control restrictions based on the different law enforcement challenges in those communities."

This could set a very dangerous precedent for the rest of the Bill of Rights if the Supremes follow the Solicitor General's advice. For example suppose a First Amendment case is sent before the Supremes. Are they suppose send it back and allow lower courts to decide where and how the First Amendment (or the Fourth or Fifth, etc.) should be applied? Imagine the anarchy if each state, county, muncipality, etc. is allowed to decide how the Consitution is applied!

It goes beyond the 2nd, Paul. Anything decided here has the potential of impacting Supreme court decisions for years.

Michael

[MSorgy]

Paul:

The SG's brief also acknowledges that the 2nd protects individual rights to keep and bear arms? (You seem to have left that out of your comments.)

"Judge Laurence Silberman wrote for the majority that when the Second Amendment says "the right of the people to keep and bear arms, shall not be infringed," it means exactly that. He added that "the Second Amendment protects an individual right to keep and bear arms" (our emphasis), and is not limited to people serving in a modern "militia" such as the National Guard, as some gun-control advocates maintain.

The amicus brief filed by Solicitor General Paul Clement agrees with this part of the D.C. Circuit ruling. "

http://online.wsj.com/article/SB120096108857304967.html?mod=opinion_journal_main_stories

Do you also agree with that part of the brief?

Michael

[Berettasskeeter]

I frequently see the gun-control crowd, as well as other leftists, speaking about judicial activism, over the last few years. But, I never hear them complain about the judicial activism that created a "right" to abortion, rather than the electorate. To those of you, in this blog, who are objective about guns (most of you), I ask that you also consider this.
Semper fi

[DMeadows]

What Paul calls a "surprising development" is merely evidence that pro-gun opinions are not monolithic. Perhaps if we pro-rights folks were more susceptible to dogma lacking critical discussion, we would be more like the anti-gun bloc.

For sure, the SJ's brief will be discussed and debated with logic and rationality amongst pro-gun people. Rest assured, no such thing occurs among anti-gun people.

[jmklein]

In terms of the English language expressions of the time, "militia" meant all freemen capable of bearing arms. It was the citizenry in arms that gauranteed the security of a free state. It's odd that modern courts have taken it to mean that the people must be disarmed so professional police forces can control the populace, lest, an armed militia were to predominate.

[Karlitos]

Paul Helmke:

Hello from Chicago. We are certainly paying attention here.

The significant and tractable portion of the DoJ brief is that it states in clear terms the following (as quoted from the brief):

"The court of appeals correctly held that the Second Amendment protects an individual right to possess firearms unrelated to militia operations. By its plain text, the Second Amendment secures a “right,” a term that the Constitution consistently uses to refer to individual freedoms rather than state prerogatives."

The intractable portion involves the following (as quoted from your article):

"...because of the 'unquestionable threat to public safety that unrestricted private firearm possession would entail' ... 'various categories of firearm-related regulation are permitted by the Second Amendment.'"

The difficulty lies in reconciling an "individual right...unrelated to militia operations" with the idea that this right can be infringed when there is evidence that the right threatens the public safety. What this will depend upon, ultimately, is real scrutiny of evidence that gun control measures enhance public safety.

For example, based on the evidence of violent crime in the District before and after their handgun ban, are you willing to bet that the ban will pass scrutiny? Is there evidence that it's really enhanced the public safety? I understand what the District argues, and understand what the VPC argues, and understand the public health literature propped up by millions of Joyce Foundation dollars. But I suspect that the Supreme Court justices understand those things, too. They are not going to allow a clearly stated individual right to be infringed willy-nilly and without scrutiny.

Tell me, do YOU truly believe that the 30 year old flat ban on handguns in DC will pass the scrutiny required to infringe a clear individual right to keep and bear arms that is specifically enumerated in the Bill of Rights?

It is clear to me that the very portion of the DoJ brief in which you delight the most is the portion most riddled with serious problems and convolutions.

[Leifrakur]

If the people of Washington, D.C., want different gun laws, or no gun laws, they can elect different officeholders.

The Heller case should never have been considered a Second Amendment issue in the first place. That case has nothing at all to do with the continuation and effectiveness of a well regulated militia, which is a body of citizens enrolled for military discipline.

The Second Amendment was written in 1789 to guarantee the continued right of the people to keep and bear arms under state laws that provided for well regulated militias. Most men were obliged under such laws – called by Washington “well regulated Militia Laws” -- to arm themselves for militia service. They were required to be enrolled in a specific militia company and to muster for periodic training.

It would have been odd indeed for Madison to have framed the Second Amendment to protect the “right” of the people as individuals to obey their own state militia laws.

The amendment was an instruction to the federal government not to use the Constitution to replace the state militia system with a peacetime standing army – a prospect that had been vigorously opposed by such anti-federalists as Patrick Henry.

Thomas Jefferson, the most prominent of the active proponents of a Bill of Rights, recognized the militia purpose of the Second Amendment. He referred to the amendment as “the substitution of militia for a standing army.” (Thomas Jefferson to Dr. Joseph Priestley, June 19, 1802)

The Second Amendment is silent upon the right of individuals to arms for personal purposes, a subject left to state constitutions and state laws except to the extent that other provisions of the federal Constitution apply.

[Thirdpower]

So a complete ban on handguns is a "sensible gun law" according to the Brady Campaign. Alright. At least they admit it after denying that they don't support gun bans for so long.

Are you then opposed to the continuing lawsuits against firearm industries that a certain federal judge has taken upon himself to continue against a federal law created by democratically elected legislators?

[searandhammer]

Paul, you still just don't get it.

It's about a personal right. It's about the natural right to self-defense. It's about allowing the innocent to defend themselves and their own against criminals - both individual and federal. It's about liberty, safety, and freedom. The idea that a federal government would be opposed to that is no surprise. It's also no surprise that a federal government would be opposed to habeous corpus, freedom of speech, and the free exercise of religion. It's no surprise that George Bush, whom the readers of the Huffington Post continually call an idiot, would make an idiotic decision and try to take these natural rights away from the citizens of the United States.

And are we to now understand that the Brady Bunch is taking a new view of the constitution, that they are abandoning the "living document" perspective. If so, then we'd like you to explain how the original meaning of "the people" has been turned into "the states". We'd like you to explain how the militias have turned into standing armies. We'd like you to explain how "shall not" has been turned into "different decisions on similar gun control restrictions based on the different law enforcement challenges in those communities".

At what point did natural rights like self-defense become something that's handed out on a case-by-case basis?

If the nation truly has turned a corner then it's into a blind alley.