Bush DoJ Supports DC Gun Ban

Here is one paragraph:

"When, as here, a law directly limits 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 scrutiny that considers (a) the practical impact of the challenged restrictions on the plaintiff’s ability to possess firearms for lawful purposes (which depends in turn on the nature and functional adequacy of available alternatives), and (b) the strength of the government’s interest in enforcement of the relevant restriction.

You really have to read the rest over at The Law and Arms.

First, it sounds like the DoJ is telling the courts they believe any decision by the Supreme Courts would necessitate writing a decision that would then be forever linked to the 2nd Amendment. Such decisions typically become de facto law. Depending on how the decision was written, broad or narrowly, it would then set a precedent where each new challenge narrowed the scope or "rights" of the 2nd amendment.

I say "narrowed" because any law or interpretation of such generally does not give back or protect rights, but most often narrows those rights or takes them away. For instance, if the courts considered a ban on hand guns and wrote something simple like "it is a constitutionally protected right to own a hand gun", every anti-gun jack-a-napes in town would then claim that the courts said that people ONLY have the right to own hand guns and laws banning rifles, shotguns, etc would be quickly enacted and then require being challenged in a court of law.

Over and over again. While, of course, our rights were destroyed in the process and each new challenge meant another interpretation that continued to narrow our rights.

After making the point that the possible consideration of the Supreme Court to hear the DC hand gun ban case could result in a loss of rights, this Amicus brief goes on to make a really egregious statement. Basically, if the courts hear any part of the argument or decide on it, such as the constitutionality of a law requiring gun locks, then the court would have to make broader decisions. If the argument against the gun lock is that it hinders the ability of the owner to defend himself or his property, then, goes the DoJ, the Courts would have to test this by testing whether the weapon was appropriate for defending a home in the first place. In other words, why would a man need a rifle, if a hand gun would be adequate to defend his home?

I found that argument extremely horrific. Not only because it places some test of "adequacy" and "necessity" on the right to bear arms, but because its reverse argument is that, if I build a Castle that can only be breached by cannon or by tomahawk missile, does that mean that I can own a cannon and an F-15 to defend my home?

And, what is this "test" that "arms" could not have meant "machine guns" in the original framer's intent because machine guns cannot be traced back to the origination of this nation and the time of the framing of the Constitution? Because they didn't exist? Because the framers could not have imagined or known that such a weapon would be created?

I think that is a load of BS. The Framers left the term "arms" general for a reason. Maybe two. First, in conjunction with the idea that the right to bear arms "shall not be infringed", "arms" is left general to insure that, yes, indeed, it cannot be infringed. If a type of weapon was named, such as "rifle" instead of "arms", the law would have allwed all rifles to be disposed of.. By naming no weapon, none could be banned (therein lies the problem with the DC gun ban) because it was neither specified or excluded. "Arms" means any and all, whether a rifle, pistol, shot gun, tomahawk, knife, pike, etc, etc, etc. Whatever is necessary or available.

Secondly, the idea that they could never have imagined a future of machine guns or surface to air missiles is rather ludicrous. In the short existence of fire arms, they had progressed from a portable, hollow metal barrel packed with ball and powder, lit by a fuse to a match lock, to a wheel lock, to a flint lock, etc, etc, etc. Edward III of England had used a volley gun, the precursor of the machine gun, in 1339. Rockets were first used by the Chinese in warfare, were commonly used in Europe for fireworks at the time of the Revolution and our own forces were subjected to them during the War of 1812 (resulting in the infamous line from the Star Spangled Banner "and the rockets red glare").

Further, I believe they specifically meant to insure that the citizens were able to compete against an army of a state, much less individuals. In Lexington, 1775, the British weren't coming just to take their private muskets and ammunition. They were coming to confiscate the cannon, ball and shot that the village people had hidden around the village. Surely, the framers must have known that the rebels had weapons equal to or better than their enemies. Surely, with every intent of winning their freedom, they would not limit their choice of weapons in defeating the British.

In which case, surely they did not imagine, while writing the Constitution, that they should protect themselves against revolution by banning any type of weapons when they expressly wrote in the Declaration of Independence that the people had a write to change their government.

With all of this historical precedent, you have to wonder exactly how we got to the point where the 2nd Amendment is being violated constantly and a case that may define the 2nd Amendment or smash it is before the Supreme Court.