January 12, 2008

• Bush Administration Flips on D.C. Gun Prohibition

Posted in Case Reports, From The Blog-O-Sphere, Legal, Politically Speaking at 3:11 pm by Rid

The Bush Justice Department joined the other 20 jurisdictions in filing amicus briefs in support of the 1976 D.C. absolute prohibition on guns. Concealed is very disappointed with this move and continues to show how out-of-step the Bush Administration is with Americans on other issues such as immigration and spiraling government growth. “Concealed”
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Justice Dept. Critical Of Appellate Ruling On D.C. Handgun Ban

By Robert Barnes
Washington Post Staff Writer
Saturday, January 12, 2008; Page A03

The Bush administration told the Supreme Court last night that, although the Second Amendment protects an individual’s right to own firearms, an appeals court used the wrong standards in declaring the D.C. handgun ban unconstitutional.

The District’s ban may well violate the Second Amendment, U.S. Solicitor General Paul D. Clement said in a brief filed ahead of a court deadline, but the case should be sent back to lower courts for evaluation under a “more flexible standard of review.”

The federal government, protective of its own gun control measures, took issue with the 2 to 1 decision of the U.S. Court of Appeals for the District of Columbia Circuit, which said because handguns are “arms” under the provisions of the Second Amendment, an outright ban is unconstitutional.

“The court’s decision could be read to hold that the Second Amendment categorically precludes any ban on a category of ‘Arms’ that can be traced back to the Founding era,” the government argued. “If adopted by this court, such an analysis could cast doubt on the constitutionality of existing federal legislation prohibiting the possession of certain firearms, including machineguns.”

The administration’s call for more judicial review — a disposition that could continue legal wrangling over the ban until after President Bush leaves office — was far short of an endorsement of the 1976 gun law. Still, it was more than lawyers for the District had hoped for.

Peter Nickles, the District’s acting attorney general, called the brief a “somewhat surprising and very favorable development.”

Washington lawyer Walter E. Dellinger, who has been retained to argue the city’s case before the court, added: “While there is a great deal in the solicitor general’s opinion with which we disagree, I am gratified they recognize the Court of Appeals erred in striking down the District’s law without considering whether it was reasonable to ban a type of weapon — handguns — which can be concealed and carried into schools, office buildings and subways.”

Even though Clement’s brief said it is not filed in support of either side, it “is basically siding with the District of Columbia,” said Alan Gura, an attorney for the District residents challenging the law. “The idea that the court somehow got this wrong is absurd.”

It has been 70 years since the Supreme Court has taken a case that presented it with a clear review of the Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Its odd punctuation and phrasing has led to years of debate about exactly what guarantees it bestows.

Most appeals courts have held it to mean that there is a collective, civic right to gun ownership related to a military purpose. But last spring the D.C. appeals court said that it conveys an individual right to gun ownership.

The Bush administration reaffirmed its long-held support of that position in its brief. But it added that, “like other constitutional rights, that individual right is subject to reasonable restrictions.”

The District’s highly restrictive law, the brief said, bans “a commonly used and commonly possessed firearm in a way that has no grounding in the Framing-era practice.” It should be subject to heightened judicial scrutiny, the government added, but the appeals court was wrong to declare the law unconstitutional “just because it takes a categorical approach” in banning handguns.

The brief was among nearly 20 filed yesterday, the last day for friend-of-the-court briefs either supporting the District government or taking no position on the law.

Gura and other attorneys for the D.C. residents have until next month to file a brief telling the high court why the appellate decision should be upheld. The case is still unscheduled but will likely be heard in March and a decision should be issued before the court adjourns in June.

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