Tuesday, January 15, 2008

Bush Admin Lawyers Attack Second Amendment - Saluted By Brady Campaign!

Public 'threatened' by private-firearms ownership.
Government argues gun restrictions 'permitted by the 2nd Amendment.'
A faithful apprentice strikes again. Yet another fake conservative legal tool gleefully guts the Constitution for his Master - this time coldly disemboweling the Second Amendment.

Here is an excerpt of the Worldnetdaily.com article:

Since "unrestricted" private ownership of guns clearly threatens the public safety, the 2nd Amendment can be interpreted to allow a variety of gun restrictions, according to the Bush administration.

The argument was delivered by U.S. Solicitor General Paul D. Clement in a brief filed with the U.S. Supreme Court in the ongoing arguments over the legality of a District of Columbia ban on handguns in homes, according to a report from the Los Angeles Times.

Clement suggested that gun rights are limited and subject to "reasonable regulation" and said all federal limits on guns should be upheld.

"Given the unquestionable threat to public safety that unrestricted private firearm possession would entail, various categories of firearm-related regulation are permitted by the 2nd Amendment," he wrote in the brief, the Times reported.

He noted especially the federal ban on machine guns and those many other "particularly dangerous types of firearms," and endorsed restrictions on gun ownership by felons, those subject to restraining orders, drug users and "mental defectives."

His arguments came in the closely watched Washington, D.C., ban that would prevent residents from keeping handguns in their homes for self-defense.

Paul Helmke, of the pro-gun control Brady Campaign to Prevent Handgun Violence, told the Times he salutes the administration for its position.

Read the rest here.

My Comments:

There you go! Bush lawyers have sided with the District of Columbia against gun owners, not only arguing that D.C.'s total ban on handguns is constitutional but that all current federal gun laws should be upheld, winning praise (a salute no less!) from the gun grabbing victim disarmament crowd over at the Brady Campaign. So nice to see yet another "bipartisan" assault on the American people.

So much for the old saw that Republican politicians, if only they could, would get rid of all of those unconstitutional federal gun laws, but we just need to be patient until they are in a position to do so. Now, when a case is before the Supreme Court, and they actually have a chance (however remote) of striking down those federal gun laws by convincing the Supreme Court to rule those laws unconstitutional, we have the US government, in the form of the Bush Administration controlled Justice Department, chock full of Republican lawyers, arguing to the Court that all of those federal gun laws are perfectly constitutional and nothing in the Second Amendment can be used to strike them down. To the contrary, doing so would be "dangerous"!
We now see the final nails being hammered in the coffin of the right to bear arms in America.

First, we had the Gonzales v.Raich decision, where the Republican lawyers of the Bush Administration argued that there is no limit whatsoever to Congress's law making power since Congress can even regulate what a person does in her own back yard, growing a plant, not for sale, but for personal consumption. That decision had a direct and almost immediate impact on gun rights.

In United States v. Stewart, before the Ninth Circuit Court of Appeals, Mr. Stewart argued that his manufacture of homemade machine-guns was not for interstate commerce and was therefore beyond the power of Congress to regulate. He won! The Ninth Circuit agreed! That's right, the Ninth Circuit ruled that Congress lacked the power, under the Article I, Section 8 commerce clause, to regulate homemade machine-guns. An amazing decision, which truly surprised many a constitutionalist who thought the federal courts were beyond hope.
But then came the Supreme Court's Raich decision. In the aftermath of Raich, the U.S. government, once again with Republican Bush appointed lawyers leading the charge against the Constitution, appealed the Ninth Circuit's decision to the Supreme Court. the Supreme Court ordered the Ninth Circuit to follow Raich, and to reverse its decision in Stewart, because lo and behold, Congress could regulate even home-made machine guns (and any other home-made firearms). So now Mr. Stewart, an American gun owning patriot, is still in federal prison thanks to the Bush lawyers and thanks to the Raich decision the Bush Administration pushed for.

So now Congress can make any law it likes. There is no longer a commerce clause challenge to the power of Congress to pass any law, much less a gun law. Forget about pointing out that the federal government is only supposed to have certain, limited, enumerated powers. Your only remaining way to challenge such laws is to argue it violates your rights.

And now here comes the Bush Admin arguing that not only can Congress pass any law it pleases, but you cannot challenge the constitutionality of those laws by evoking the Second Amendment. Sure, they throw us a bone by saying that the Second Amendment somehow protects an individual right, but then they argue that your right to bear arms can be regulated by Congress, and that none of Congress's regulations violate that right. That's right. Not one of the current multitude of federal gun laws and regulations violates your rights - not even outright bans on whole classes of firearms. I'm not clear on what restriction these so-called conservative lawyers would find to ever violate the Second Amendment. Perhaps a total ban on any and all private possession of firearms? Would that do it? So, short of that, any restriction is constitutional so long as you are at least theoretically "permitted" to own some kind of firearm?

This is like saying in grand language that "the powers of Congress are few and defined, and limited to those enumerated," but then saying that among the powers enumerated is the power to regulate commerce and everything is commerce, so Congress can go ahead and regulate whatever it wants. What a farce of the concept of limited and enumerated powers. What an empty limit on the power of the federal government.

Same here: The Second Amendment protects an "individual right" but that right may be regulated in any way Congress pleases, including banning entire categories of firearms and ammunition, and may track you and your arms at will. What an empty right and a non-existent limit on power.

So now we have a "conservative" administration that argues that the federal government may pass any damn law it pleases, and any damn gun law it pleases.

Forget the illusion that the men in the Bush Administration care about the Constitution. Forget the illusion that your rights are somehow safer with Republicans in office. You have been fooled. Many of us knew that long, long ago. But now perhaps other Americans, especially those who consider themselves conservatives, will finally, after all these years, wake up to this fact.

We are seeing before us a constitutional republic in its final death throes, killed by a thousand treacherous cuts, and we are now seeing the final slashes being inflicted by cold reptilian lawyers who fancy themselves "conservatives" working for a man who truly does treat the Constitution like it is "just a goddamn piece of paper."

Stewart Rhodes


me said...

Good to see someone calling this for what it is.

At first I thought that was Agent Smith from the matrix there must be some kind of "control" disease that disfigures the face and puts that little glint of...would it be arrogance, or contempt, maybe just evil in the eyes.

You're a lawyer, is there anyway for Joe Average to bring these scumbags up on charges of oh, say treason? Wouldn't that be the correct term for ACTIVELY arguing against the very things they are sworn to protect?

If not, would you have any thought as to why we should continue to partake in the charade that is modern day America?

Stewart Rhodes said...

It's the look of a mere tool. A cold, reptilian tool. Like a legalistic cyborg. That is what a lawyer is who just does whatever his "client" the government wants, no matter how ridiculous, or how destructive of the fundamental of the constitution. They will "make it legal."

Nope, treason won't work. Guess who would be bringing the charges? The US Department of Justice (sic)! The DOJ is hardly going to charge itself, or its lawyer minions, with treason. And you can forget about any impeachment of anyone in the Bush Admin for any of this. Those two avenues are the only thing I can think of, short of some manner of civil suit. But then you have to show standing, and the courts are very stingy about that.

Given that both the so-called left and the so-called right among political elites both agree about 95% of the time, and join hands in murdering the Constitution, no, I really am at a loss for words to convince you of why you should continue with the charade that this is any longer a nation of laws, not men.

Concerned American said...

Great post, counselor.

I am sure that you have seen the lickspittle commenters on David Hardy's place nattering about "intermediate scrutiny" and "legal realities":


A pox indeed on very many in our profession....pity that there will need to be a second volume to this work:

Hitler's Justice: The Courts of the Third Reich

My take on the SG's brief:

Western Rifle Shooters Blog

Alice Lillie said...

I have been telling people from day one that Bush is anti-gun!!!

He was anti-gun the day he accepted his nomination in 2000 (I made the mistake of trying to eat during that speech) and is anti-gun now.

See my own blog. There is an essay called _The Three Worst American Enemies of Freedom_ at http://alicelillieandher.blogspot.com/2005_05_01_archive.html in which I do treat Bush's opposition to gun rights, although it is more of a general essay.

Jon Roland said...

Arguments needed in D.C. v. Heller

See http://constitutionalism.blogspot.com/2007/12/arguments-needed-in-dc-v-heller.html

1. The primary original meaning of "militia", from the Latin, is an activity — military service, or, because it includes law enforcement and disaster response, defense activity, and only secondarily those engaged in it, or the subset of those who may be required to engage in that that activity. It is a common idiom in English of the founding era to use the same word for an activity and those engaged in it. Understood in this way, the word is not a plural form, implying more than one person, and a single individual, engaged in defense activity, is engaged in militia.

2. The only regulation that is "reasonable" is regulation that enhances the effectiveness of militia, with an expansion on what that includes and does not include.

I have been proposing the above two arguments to be included to several filers of amicus curiae briefs, but they all seem to be on their own blindered tracks, which I consider inadequate, especially in the light of the recent brief by the Solicitor General. The lawyer for Heller, Gura, doesn't want any more briefs filed, although Heller himself likes my arguments.

To pass strict scrutiny, the law or policy must satisfy three prongs:

First, it must be justified by a compelling governmental interest.

Second, the law or policy must be narrowly tailored to achieve that goal or interest.

Finally, the law or policy must be the least restrictive means for achieving that interest.

Besides strict scrutiny being unconstitutional, argued in this way, in that there is no general power to do whatever might be in the "compelling" interest of the government, none of those points are proved in the DC brief. They are merely asserted. Our side needs to meet that assertion with the alternative of regulations that would enhance the effectiveness of militia, by requiring all citizens to be armed, organized, and trained. That would operate to identify and weed out those unfit to have and use arms, who could be dealt with using individual trials on the merits. The rest would be prepared to defend themselves and others, something that is beyond the competence of full-time law enforcement organizations.

Anonymous said...

After reading the article posted on JPFO site I realized what Bush 41 meant by 1000 points of light.
Those are from 1000 holes that he and his son have punched thru the Constitution.

Stewart Rhodes said...

Cabinboy, I liked your page. Very well done.

Jon, I'll give your research a look, though my first impression is that whether militia is an action or an organization, it is the people, and since that first clause is merely an explanatory clause, with the second clause being the action clause, it is not crucial to the question. What counts is that the right of the people shall not be infringed, not precisely how they used that right back then or now.

You are correct about the so-called strict scrutiny analysis. Where in the Constitution does it say the government may violate rights so long as it can articulate some "compelling state interest" in doing so? That escape clause for the government just does not exist anywhere in the Constitution. It is a legal fiction made up by judges.

But, as you say, even within that perverse paradigm, the DOJ position makes no sense. How can this be a right, and yet only subject to rational basis review (which is no review at all of any meaning, since just about everything is upheld under that incredibly deferential review). This is a farce. Calling it a "right" but then arguing that all gun laws pass muster is a complete joke, and the joke is on conservative gun owners, who are expected to swallow that nonsense.

When will they wake up? This will be a good test. Will they finally see the light?

Sadly, on some of the gun boards I am already seeing people make excuses for Bush, blaming this on Mulkasey, and saying Bush is preoccupied with foreign affairs and the new liberal attorney general is somehow running amok while the good president's back is turned. Nonsense. Bush never gave a damn about the Second Amendment any more so than any other of the amendments in the Bill of Rights.

What conservatives need to understand is that the Bush Administration has undergone a consistent, relentless assault on the Bill of Rights, and they have already, in many lower court cases, carried that assault to the Second Amendment as well. Just go take a look at the Wayne Fincher case, for just one example of Bush appointed lawyers arguing that the Second Amendment protects only a collective right to bear arms.

This DOJ brief in DC v. Heller is simply a continuation of that assault. The only difference is this is now in a Supreme Court case, so it is more visible.

This is only the tip of the iceberg.

Anonymous, you are right! A thousand holes poked with glee into the constitution by Bush.


Anonymous said...

In short, those in power are cowards. They know that whatever they do, they're going to P.O. one side or the other, and they are fearful that someone on the losing side is going to come after them with a gun.

That's what it comes down to, and that is why BOTH parties will support "gun control" - because it allows them to do whatever they can think of to protect themselves, regardless of it's effect on the "little people".

It's a rare politician who has the large brass ones to say "Yes, I know that some of the things I do will make some of the people mad, but I trust that all but a few nuts are not going to attack me with deadly weapons, and I have plenty of protection from that small number, so keep yourselves safe with the proper tools."

A little politics here: Read Fred Thompson's statement on this matter and compare it with ANY OTHER CANDIDATE, and then tell me who you're going to vote for.

Even if he doesn't win the Rep nomination, I intend to write-in his name in the general election. I will not vote for ANY of the other candidates.

Anonymous said...

There are times when I wonder what has happened to the spirit that drove America. Perhaps it never existed.
Today we not only have the government assaulting our rights, but special interest rides along with them.
We are now at a crossroad, and neither path appears very appealing. We submit, and with that turn in guns, and live our lives as slaves to the autocracy, or rise up, and remove the current government. That means everyone for it would be rare to find even a local politician who subscribes to the Original Intent of the Constitution.
Noting that most Americans are either tied to the system, or incapable of realizing that it is corrupt, a vote of change appears unlikely. So a change as it always been affected is the second option.
How did we let ourselves come to this point when we had clearly been warned that this country should not go down this path?

KCUF Media said...

This idiocy on the part of the Busheviks goes hand in hand with the infamous letter from John Ashcroft to the Necrotic Republican Appendage -- the one where Ashcroft said that the Second Amendment is an individual right, but "subject to reasonable restrictions." I remember how George the 43rd campaigned in 2000 on triggerlocks, ending private guns sales and supporting the 1994 Clinton "assault weapon" ban.

Mike Blessing,
Executive Heretic, KCUF Media

Anonymous said...

"We the people" have brought this on ourselves as a group. While some deplore the erosion of freedom most think only of their own perceived safety. The majority of American voters listen to media personalities and vote the way they are told. When I talk to people and argue for the repeal of anti-freedom laws I am always met with counter arguments that "It won't happen here" and "It won't go that far". Some days I think Congress and the Supreme court should just declare the Presidency an elective dictatorship, close their offices and go home.