January 14, 2008

• Concealed Scrutinizes Clement’s Amicus Brief

Posted in From My Gord, Legal at 4:45 pm by Rid

Concealed reviews Solicitor General’s Amicus Brief regarding D.C. v. Heller.


Paul Clement, the Solicitor General of the United States, filed an Amicus Brief on 1-11-08 agreeing with the basic proposition of the D.C. Court of Appeals, that the Second Amendment protects an individuals right to keep and bear arms.

Dr. John C. Eastman. Professor of Law, Chapman University School of Law, sees this as “an extraordinary first step,” because the court in United States v. Miller, 307 U.S. 174 (1939), obliquely suggested that the right existed only in a governmental context.

This is the most “critical” part of the Justice Department’s brief and did support the individual right aspect on the Second Amendment. The inherent problem becomes apparent when determining whether or not there are limits on the individual and if so, how are the limits applied.

Concealed” maintains there are limits on these rights and just as free speech is limited (No yelling fire in a theater) so are individual gun rights. We take the opinion that citizens with criminal backgrounds or psychiatric conditions, should not be allowed to have firearms. We also believe that the age old standard of “malo animo: with evil intent” is another acceptable standard for determining application.

Dr. Eastman calls this “rational basis review.” This is a lower level of scrutiny, unlike strict scrutiny. Rational Basis Review permits a broader range of regulations.

Dr. Eastman suggests that the Solicitor General may have been better off letting the later point (rational basis review) be determined at another point in time. He submits that the D.C. gun prohibition was so blatantly un-constitutional; that the Solicitor General would have been much better served concentrating on the constitutionality issue and avoiding the Pandora’s Box of rational basis review.

Concealed” 1-14-08

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