An internet diary
(Pardon me while I remove this knife from my back)
Published on January 15, 2008 By IanTyger In US Domestic

The DOJ brief lit the fuse that the SCOTUS tried to quench with their limited definition of the question at hand. What' at the other end of that fuse nobody knows (except possibly Justice Kennedy)...

DC asked the Supreme Court to decide "Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns."

Heller asked "Whether the Second Amendment guarantees law-abiding, adult individuals a right to keep ordinary, functional firearms, including handguns, in their homes."

The court has rephrased the question be decided as follows:

The petition for a writ of certiorari is granted limited to the following question: Whether the following provisions, D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02, violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?

Along comes the Solicitor General's office with their Amicus Curiae brief (PDF) nominally in support of the Petitioners (District of Columbia et al.) Except one of the very first things the brief says is "In 2001, the Attorney General adopted the position that the Second Amendment protects an individual right to possess firearms for a lawful private purpose unrelated to service in a militia,..." (we'll get to the second half in a bit, never fear). This is supposed to support the DC government's position? The brief spends quite a bit of ink going through the historical and grammatical reasons why this is so, laying out their argument in strong terms, with well-supported arguments. I invite anyone to attempt to take apart the arguments in favor of this part of the summary. It reads like (and quotes) Eugene Volokh's The Commonplace Second Amendment. I may keep this around as a convenient source of arguments in favor of the "individual rights" argument.

But then we come to the second half of the statement"...and that such right—like other constitutional rights—is subject to reasonable restrictions." With the usual laundry list of "reasonable" restrictions. Prohibited persons, the federal ban on machine guns (by which the authors probably mean the ban on new manufacture of machineguns legal for civilian possession), etc. In particular, the standard arm of the US military is considered a machinegun by law (M-16, as it can fire more than one bullet per trigger press). But because it is a machinegun, it can be banned for public safety reasons under the federal government's ability to regulate, for the purposes of ensure a well-regulated militia, what arms the People can Keep and Bear... One more time: The government may ban the civilian possession of the standard arm of the military under its ability to sure that the militia is effective. IE - to ensure the militia is effective (well-regulated) the government may ban arms demonstrably suitable for the individual soldier.

But none of this is in front of the Supreme Court of the United States, today. The Supreme Court chose only to take up the question of the ability for a private individual to keep handguns and other firearms for private use in their homes. The question was framed quite restrictively; and the Solicitor General is trying to break that frame and make the court consider, immediately, additional ramifications; when all of the courts in question have gone out of their way to duck those additional questions. (The appellate court specifically avoided the ban on functional firearms outside the home).

This is a Good Thing. Courts, especially the Supreme Court, should move with care in an area of lay which is both mostly settled and, at the same time, surprisingly devoid of firm case law. The whole point of the Solicitor General's brief is to force a question now that everyone else involved was perfectly happy to leave to a more convenient season; and by doing things the way they have, it seriously damages the Petitioner's case.


Comments
on Jan 16, 2008
It seems that even in their restating of the issue, they have opened up another can of worms.  "and other firearms" will create a slew of new lawsuits for future courts to decide upon.
on Jan 17, 2008
"And other firearms" is an attempt to head off "Handguns are legal, but shotguns aren't". Shotguns are probably the most effective home defense weapon, but it's heavy to tote a shotgun with you wherever you go, and inconvenient to carry one about your person when not home.

Plus the DC regulations cited prohibit the storage of "functional" firearms in the house, with no exception for a case of selfdefense. Once you've enabled the functioning of your firearm (by removing the trigger lock, etc) it *immediately* becomes an illegal firearm; and necessity is not an absolute defense - Ie the prosecutor can charge you and let the jury sort it out.
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