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
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.