FLE

The Federal Government’s Brief in the D.C. Gun Ban Case: A Glass That Is More Than Half Full Although some thoughtful lovers of liberty have lamented the half-empty aspects of the U.S. Solicitor General's recently-filed brief in the D.C. gun ban case (District of Columbia v. Heller), the portion that is full is legally far more significant in securing Second Amendment rights in the arena that counts most: the Supreme Court. On careful analysis, the brief's departures from sound principle are internally inconsistent and otherwise not particularly effective. Americans should recognize the importance of the government's concessions to individual liberty and ignore its predictable, bureaucratic attempt to defend existing federal laws. That is what the High Court is most likely to do. It is no minor event when the national government clearly and forcefully admits to the highest court in the land that Americans enjoy a constitutional right that has been hotly debated for years, especially when that constitutional right is a limit on the government's own power. That is what the Department of Justice's chief litigator did in a brief filed last week in the Supreme Court case testing the constitutionality of the Washington, D.C., gun ban....
Justice for gun owners Martin Luther King Jr. put it best: "A right delayed is a right denied." The lesson appears to have been lost on the Department of Justice and Solicitor General Paul D. Clement in the amicus curiae brief submitted recently for the government in the case of District of Columbia v. Heller, which challenges the city's 31-year-old handgun ban, a horrible gun law that has had its day in court and lost. In a transparent exercise of political pandering, Clement and his colleagues named on the brief have strenuously, and correctly, argued that the Second Amendment protects an individual civil right, yet they insist that every restrictive gun law currently on the books should stand. They want this case sent back to the lower courts for further consideration. Translation: Legal sleight of hand is being used to make the Second Amendment a right "in name only." And Clement appears to suggest that the longer the Supreme Court can put off deciding whether a restrictive gun law violates that important civil right, the better. It is gratifying that the government properly holds the Second Amendment to be protective of an individual right, but that gratification is greatly diminished by the argument that this case requires further review. That would be a great injustice, and as King once noted, "Injustice anywhere is a threat to justice everywhere." By Clement's logic, the high court should have ruled that women have abortion rights, but they would be forever waiting to exercise those rights while their cases would be remanded back down the legal chain for further consideration. By Clement's logic, segregation laws would still be under lower court review, and Rosa Parks would still be sitting in the back of the bus....
The Second Amendment a second class right? The brief presented by the Solicitor General makes some valid points upon which Second Amendment supporters can agree. The brief states the administration's opinion that the right to keep and bear arms is an individual right, and that laws restricting that right should be subject to "strict scrutiny" – meaning that legislators must weigh the proposed benefit of the law carefully before infringing on a Constitutionally guaranteed right. Additionally, the brief expresses the opinion that the District of Columbia's strict gun ban should be overturned. So far, so good. The Solicitor General's brief also takes a bizarre turn. While the Solicitor General calls for "strict scrutiny" for gun laws in general, he calls on the Supreme Court to apply only "intermediate scrutiny" as it determines Heller vs. DC. The Solicitor General also argues that the Second Amendment is not a "fundamental" right. So what the Solicitor General seems to be saying is that, well, sure, the Second Amendment calls for individual rights, and those rights should be afforded "strict scrutiny" most of the time, but the administration does not believe that gun rights are "fundamental" rights, and so, therefore, Your Honor, you don't need to be too strict in your decision-making process in this case. In fact, we don't think you should really decide this case, but you should send it back down to the Circuit Court for more study, and while they are at it, tell them they only need to use "intermediate scrutiny". In essence, the Solicitor General is saying that our Second Amendment rights are second-class rights that don't rise to the level of "fundamental" rights as do really important rights such as the First Amendment, or the Fourth and Fifth Amendments....