Posted by: bridget | 12 January 2008

Bush Administration Finds 2d Amendment Superfluous; Takes Scissors and Sharpie to that Part of the Constitution

The Bush administration urged the Supreme Court to overrule the D.C. Circuit’s decision in Parker v. District of Columbia, alleging that the court used the wrong standard of review (story here).  The administration said that the ban may well be unconstitutional, but should be analysed under a more deferential standard (intermediate scrutiny instead of strict scrutiny). 

“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…. 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 [sic].”

There are several things wrong with this, but let’s take the high points.  First of all, a strict scrutiny standard (“narrowly tailored to meet a compelling state interest”), long used by the Supreme Court for virtually every statute which directly opposes a Constitutional mandate, would still permit the federal government to outlaw some forms of firearms.   Generally, the Court has upheld restrictions on certain, narrow classes of guns (i.e. machine guns), and the possession of guns by certain individuals (minors or the insane, whom would be more likely to hurt themselves with the weapons,. and felons, who may use them to commit crimes).  These are all understandable under strict scrutiny, and would withstand that review.  The “parade of horribles” argument makes little sense when legislatures are still free to act to protect the people from the aforementioned horribles.

Second, the idea of tracing an arm back to the Founding era, before granting it protection, is utter foolishness.  Let’s analogise to the First Amendment.  Should only those “presses” and “speeches” traceable to 1791 be protected?  Newspapers of limited circulation (approximately 2,000 copies per week) would be permitted, as would speeches in the public square; however, blogs, television, radio, cable, on-line newspapers, and the New York Times (circulation 1.1 million daily, 1.6 million on Sundays, printed in hundreds of cities – hardly something contemplated in the Founding Era) would not be allowed.  The same rationale should not be applied to the Second Amendment.  Furthermore, the very protections secured by the Second Amendment – the ability to defend oneself against hostile governments and law-breakers – would be undermined by such a position.  A free populace cannot remain that way long when a government armed with AK-47s controls those armed with steak knives, flintlocks, and the occasional shotgun (used for hunting only, of course!).  Our enemies – either our neighbours, intent upon homicide; our government, intent upon tyranny; or foreign nations, intent upon dominating us – cannot and will not constrain themselves to use weapons “that can be traced back to the Founding era;” they will meet us with all the firepower at their disposal, leaving us underarmed and virtually unarmed.  This gets better:

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.”

Oh, heaven forbid a teacher be able to stop a school shooting.  Sure, teenagers are noisy and disruptive, but they ought not be shot at like clay pigeons when attempting to receive an education.  Furthermore, did we learn nothing from Colorado?  Did Mr. Dellinger become an attorney after being unceremoniously stripped of his balls?  Those who can carry guns, concealed on their persons, are deterrents to those intent upon mass slaughter.  Your average deranged psychopath cares little about a fine and a misdemeanour charge, which will not exacerbate several consecutive life sentences; however, law-abiding citizens do so mind a criminal record, however slight, and are forced to choose between obedience to the law and the protection of themselves, their families, and those around them.    

As a side note, perhaps one previously mentioned on this blog, the structure of the Second Amendment is virtually identical to that of Art. I, Sec. 8, cl. 8: “The Congress shall have the power To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries…” (here).  No one really believes that, when the USPTO grants a patent on a device which does nothing to promote the useful arts, or when a copyright is granted to a film that does nothing to promote theology or philosophy (or do anything save waste time and kill brain cells), the Constitution is violated; yet, the same approach is used on the Second Amendment.  Utter nonsense.



  1. I saw this Bridget. Arg! Really the only viable Republican presidential candidate left who truly understands the 2nd Amendment is Fred Thompson. Of course, Hunter is awesome too, but I’m really pulling for Fred to get some steam behind his campaign and move up.

    This a good point:

    Oh, heaven forbid a teacher be able to stop a school shooting. Sure, teenagers are noisy and disruptive, but they ought not be shot at like clay pigeons when attempting to receive an education.

  2. I’m liking Thompson. :) I hope he goes for it in South Carolina – appeal to the freedom-lovin Southerners and revives his campaign.

  3. Nice work.

    Curiously, I get the most hits on my blog for people searching “Texas gun laws.” Maybe I’ll link back to this post for those pro-freedom folks who care about our right to protect ourselves…

    Gun rights is one of my top issues (#2, actually, with abortion/life being #1). Thus Thompson and Hunter look good to me. Just wish either of them had Huckabee’s voter appeal.

  4. Thank you, Vance. :)

    I bundle in “gun rights” and “pro-life” with “electing good judges” as my #1 issue. Until we get judges who understand that the Constitution forbids Congress to ban guns but allows state legislatures to ban abortion, not the other way around, there isn’t much that a good President can do.

  5. Right on all counts as usual.

    I have never been able to understand why anybody would think that someone intent on breaking the law (surely the law at least frowns on murder, although sometimes I wonder) would be deterred by another law.

    And anyone who thinks banning guns would make them unavailable to criminals should look up “prohibition”.

  6. Another law with a much lesser penalty, no less. :)

    Good point re: the last one.

  7. OK, as a 2nd Amendment proponent I have to chime in on this one – though in a strange way…

    The Feds are not entirely wrong in their position. They’re really just trying to make sure that any rulings don’t destroy the reasonable federal limitations on gun ownership. It would be more than sad if the Court’s ruling set the stage for “mentally unstable” people or felons being allowed access to firearms.

    Let’s research a bit more into what the Feds are trying to do before we raise hew and cry. Believe me, if they’re being stupid I’ll be in the vanguard of those denouncing them!

  8. All i know at this point is that I will have my guns, no matter what.

    Glad to see Fred is surfacing. One thing I like about him is that he’s not in on the “Me!Me!Me!”, Tracy Flick-ish game the rest have been engaging in so far. I think Fred is the real deal—hoping he goes into a sprint and shows what he’s made of.

  9. Time to go out and buy more guns. :-)

  10. Jonolan,

    Red herring. The legislature can still ban certain types of weapons and keep the nutjobs from getting them under the highest level of scrutiny, the same way they can let you sue someone for libel or slander, despite the Free Speech clause.


    The same guns you used to try to off your mom after the bar exam, when she came to your house to drop off roses? [blinks innocently]

    Compound! Compound!


    Sounds like a plan. :)

  11. theobromophile,

    I believe that they want to make sure that the Court doesn’t pass a ruling that lends itself to people contesting all the restrictions you just mentioned.

  12. Why would it? Strict scrutiny, with a mention that a ban on AK-47s would still be permissible under the Constitution, would not trigger endless litigation.

  13. The feds do not want current bans on Automatic Weapons deemed unconstitutional. It is not beyond the realm of reason to argue that since the Brown Bess musket was the military arm of the day and allowed under the 2nd Amendment for “civilians”, the Constitution requires that we all have access to ME-4s (M16 replacement).

    That ruling in turn would open the door for litigation on just who qualifies for the right to Keep & Bear arms not to be infringed.

  14. Jonolan,

    There are a lot of things “not beyond the realm of reason.” That’s not an argument, IMHO, for eroding fundamental Constitutional liberties.

    ANY ruling will open the door for litigation, barring a statement to the effect of, “The federal government can regulate in any way it wants.” Freedom is costly and messy; dictatorships alone are efficient. Oh, yeah, and why do you think it would leave the door open to litigation? Are you unaware that bans on everything you’ve mentioned have been upheld by the Court? The Court could simply say, “Those bans stay; this one doesn’t.”

    In short, what I’m saying is that those are not principled reasons to erode Constitutional protections, especially ones granted explicitly therein.

    If we don’t like the floor of protection, then the CORRECT response (and the only correct response) is to amend the document. The Court should not be in the business of addressing policy.

    That said, you’ve yet to state why restrictions on high-tech assault weapons would not meet strict scrutiny, i.e. narrowly tailored to meet a compelling state interest. c.s.i. = ensuring that civilians don’t kill each other by possessing weapons that are for the military; narrowly tailored element ought to be obvious.

    Furthermore, the federal government has less restrictive means of ensuring that those weapons are kept out of the hands of civilians, if that is your concern. It could act as a market participant and manufacture all its own weapons, then refuse to sell them to civilians. That leaves Smith & Wesson to make their handguns, and the army to make their machine guns.

    Finally, the Supreme Court is bound to decide a case on the most narrow grounds possible and not to reach issues that are not before it. Babe, the machine gun issue is not before the Court, so any ruling coming out of a handgun ban will not be binding upon it. As such, it’s ridiculous for the Bush administration to bring up a point not before the Court as a justification for deciding this case differently. This is very much like introducing a point about slander when the Court is asked to decide a case about whether or not the New York Times can be banned. The law is blatantly unconstitutional.

    Incidentally, early laws governing the militia demanded that all able-bodied males be able to properly operate their weapons. I imagine that a similar prohibition on M-16s would be allowed.

    I just don’t get where you’re coming from. Seems to me you’re inventing an issue that isn’t there.

  15. We both think the other is inventing an issue where there isn’t one. ;)

    I’m just saying the Feds aren’t entirely wrong, because they don’t want a ruling that could undermine all of the restrictions placed on gun ownership. I don’t think they’re trying to pull a fast one. You do. OK, we disagree on this.

  16. Realistically, the libs would never set the stage for the Constitutionally-protected right to hand grenades, and the conservatives wouldn’t read the case for more than it is, so, IMHO, non-issue.

    Making a non-issue into an issue is, in my book, strange. The Supreme Court has had the opportunity to strike down bans on assault rifles or felon ownership of guns and has not done so.

  17. I think your analogy to the First Amendment is completely right. Many liberals, including me, are rightly proud of the expansiveness with which the first amendment has been read over time: it’s been read not just for its words, but for its history, and its structural place as a guarantor of our freedom. The second amendment deserves nothing less. It seems to me there’s a requirement of some sort of consistent methodology, at least when one purports to be judging under a constitution.

    It’s often worth, by the way, just as an exercise, imagining how we’d think of various gun restrictions if applied to speech. In the free speech context, “licensing” is called “prior restraint” and it is almost flatly unconstitutional. Someone might respond that guns can kill people; well, yes, but words are not to be trifled with, either. (More Jews would be alive today if Hitler had been deprived of his microphone than if he’d been deprived of his sidearm.)

  18. The second amendment deserves nothing less. It seems to me there’s a requirement of some sort of consistent methodology, at least when one purports to be judging under a constitution.

    That is so… reasonable. Pardon me, I’m in shock. (Not because I expect you to be unreasonable; just the idea of someone according the same protection to those nasty sections of the Constitution as to the pretty, sweet ones they like is… unusual.)

    I think your analogy to the First Amendment is completely right.

    Awww, thank you. :)

    (More Jews would be alive today if Hitler had been deprived of his microphone than if he’d been deprived of his sidearm.)

    Very eloquent; very true. If Jews had been armed, though, fewer of them may have died. (See, 328 F.3d 567, 570.)

  19. I agree! An amazingly thoughtful and eloquent comment, Ian.

  20. Ian,

    You probably should have written that in the positive… I mean, the way it’s written now, it seems like you are advocating for a lack of free expression and gun ownership so that dictators may not rise to power and slaughter innocent people. ;)

  21. Ha ha. Right. :) Yes, let me state for the record that dictators ought to be allowed to pipe up. (That way, we can know who they are before it’s too late…)

    And thank you, jonolan.

  22. Another point, although no one seriously thinks SCOTUS will consider. If you read the Constitution, it becomes clear that the framers believed that private citizens would have crew served weapons. If Congress can allow legalized privateering, that implies citizens will have cannons, which were used as machine guns are today.

  23. Thanks for stopping by. :)

    Question about your second sentence. I was pretty sure that the Constitution considered both “militias” and “armies.” Now, I’m actually fairly fuzzy on how each operated during the Founding era… did militias also have cannons and heavy artillery?

    You could, by the way, always take the Justice Scalia approach. When asked by a law student what would prevent someone from using the Second Amendment to assert a right to a tank, he responded, “First of all, you can’t bear a tank.” Methinks the same would apply to cannons, and, therefore, to anything that would be brought under the aegis of the Second Amendment by being analogous to a cannon.

  24. Not the 2nd Amend, but Art I, Sec 8, which says in part:
    To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

    A Letter of Marque basically allows you to act as a pirate against another country. That seems to assume that you have sufficient supplies to act as a pirate–a ship and some cannon. Kinda similar to the argument that if the Constitution allows execution for treason, then the 8th Amendment can’t be read to exclude executions.

    Its rather strained logic, but I like to dream sometimes.

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