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DoJ Supports D.C. and Individual Rights Interpretation:

As many VC readers may be aware already, the Solicitor General's office has filed a brief in D.C. v. Heller supporting an individual rights interpretation of the Second Amendment, but nonetheless calling for a remand in the case because the U.S. Court of Appeals for the D.C. Circuit applied too high a level of scrutiny in the case. Here's a taste of the brief's argument summary:

Although the court of appeals correctly held that the Second Amendment protects an individual right, it did not apply the correct standard for evaluating respondent's Second Amendment claim. Like other provisions of the Constitution that secure individual rights, the Second Amendment's protection of individual rights does not render all laws limiting gun ownership automatically invalid. To the contrary, the Second Amendment, properly construed, allows for reasonable regulation of firearms, must be interpreted in light of context and history, and is subject to important exceptions, such as the rule that convicted felons may be denied firearms because those persons have never been understood to be within the Amendment's protections. Nothing in the Second Amendment properly understood—and certainly no principle necessary to decide this case—calls for invalidation of the numerous federal laws regulating firearms.

When, as here, a law directly limits the private possession of "Arms" in a way that has no grounding in Framing-era practice, the Second Amendment requires that the law be subject to heightened scrutiny that considers (a) the practical impact of the challenged restrictions on the plaintiff 's ability to possess firearms for lawful purposes (which depends in turn on the nature and functional adequacy of available alternatives), and (b) the strength of the government's interest in enforcement of the relevant restriction. . . . Under that intermediate level of review, the "rigorousness" of the inquiry depends on the degree of the burden on protected conduct, and important regulatory interests are typically sufficient to justify reasonable restrictions.

The court of appeals, by contrast, appears to have adopted a more categorical approach. 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. However, the text and history of the Second Amendment point to a more flexible standard of review. Just as the Second Congress expressed judgments about what "Arms" were appropriate for certain members of the militia, Congress today retains discretion in regulating "Arms," including those with military uses, in ways that further legitimate government interests. . . .

Given that the D.C. Code provisions at issue ban a commonly-used and commonly-possessed firearm in a way that has no grounding in Framing-era practice, those provisions warrant close scrutiny under the analysis described above and may well fail such scrutiny. However, when a lower court has analyzed a constitutional question under a standard different from the one adopted by this Court, the Court's customary practice is to remand to permit further consideration (and any appropriate fact finding or legal determinations) by the lower courts in the first instance. . . .

Lyle Denniston's take on the brief is on SCOTUSBlog here. David Hardy expresses his disappointment here.

Related Posts (on one page):

  1. Amicus Briefs for Petitioner in D.C. v. Heller:
  2. DoJ Supports D.C. and Individual Rights Interpretation:
Waldensian (mail):

the Second Amendment requires that the law be subject to heightened scrutiny that considers (a) the practical impact of the challenged restrictions on the plaintiff ’s ability to possess firearms for lawful purposes (which depends in turn on the nature and functional adequacy of available alternatives), and (b) the strength of the government’s interest in enforcement of the relevant restriction

But of course, one of the "lawful purposes" of owning a firearm is protection against government oppression. The balancing test here is a bit whacky.
1.13.2008 9:39pm
dwlawson (www):
All in all a very good brief in many respects. They make a flawed argument in one respect however. They state that their ban on Full Auto and even AWB (expired) pass constitutional muster. However, part of their argument would tend to contradict this.


Second, Framing-era discussions of the need for
the Second Amendment frequently described an armed
citizenry as a deterrent to abusive behavior by the federal
government itself. See, e.g., Emerson, 270 F.3d
at 237-240; Sanford Levinson, The Embarrassing Second
Amendment, 99 Yale L.J. 637, 649 (1989). Justice
Story stated that “[t]he right of the citizens to keep, and
bear arms has justly been considered, as the palladium
of the liberties of a republic; since it offers a strong
moral check against the usurpation and arbitrary power
of rulers; and will generally, even if these are successful
in the first instance, enable the people to resist, and triumph
over them.” Joseph Story, Commentaries on
the Constitution of the United States § 1001, at 708
(1987). In that regard, the Framers frequently contrasted
American society with the perceived tendency of
European governments to disarm their populations in
order to facilitate oppressive rule. See, e.g., The Federalist
No. 46, at 299 (James Madison); Emerson, 270 F.3d
at 240 n.53; OLC Opinion 63 n.258.



How to resist a tyrannical govt without 'homeland security weapons'?
1.13.2008 9:47pm
glangston (mail):
O boy, the old machine gun bogeyman.
1.13.2008 9:59pm
OrinKerr:
I'm surprised that some people are surprised that the DOJ took an intermediate position. DOJ's job is to defend federal laws, so they normally say things are constitutional. Given that, this brief is pretty much what I would have expected. If you want to compare it to what DOJ's brief would have looked like if John Kerry had won in 2004, read this.
1.13.2008 10:02pm
BruceM (mail) (www):
And the SCOTUS will go along with this. I've been predicting an "Emerson" (re: the 5th Circuit case) stating there is an individual right, but nonetheless either affirming the conviction or remanding for the lower court(s) to do something that will, ultimately, affirm the conviction and save the statute.

So, we'll have an "individual right" under the 2d Amendment but in practice the government can ban whatever gun possession it wants to. If nothing else, the court will instill a "reasonableness" test for reviewing restrictions on our "individual right" which will always result in a government victory. Possessing guns in a city with a high crime and murder rate is unreasonable, yadda yadda. Conviction affirmed.
1.13.2008 10:06pm
DiverDan (mail):
Does it surprise you that the DOJ would adopt an argument that ignores the role of the Second Amendment in serving as a limit on the possibility of a tyrranical government. The right to trial by jury has an even longer history as protection against a tyrranical government -- indeed, the right of jury nullification was implicit in the right of noblement to a "jury of their peers" which they wrested from the King in the Magna Carta. Yet American jurisprudence has long tried to suppress any notion of jury nullification, to the point where you cannot even argue to the jury that they have the right (not just the power, but the right) to ignore the law if they consider it unjust.
1.13.2008 10:06pm
OrinKerr:
Does it surprise you that the DOJ would adopt an argument that ignores the role of the Second Amendment in serving as a limit on the possibility of a tyrranical government.

Objection -- argumentative. (sustained) Just to be clear, I'm not saying that DOJ's position is correct. I'm just saying that the DOJ is representing the institutional interests of the federal government. Entities charged with defending their own power are generally less likely to be concerned that they are or will become tyrants. Of course, if you think the federal government's briefs should not try to defend the interests of the federal government, then that is a different issue entirely.
1.13.2008 10:12pm
American Patriot:
I have a hard time believing that John Ashcroft or Edwin Meese would have gone with this. This "intermediate position" just shows how liberal the DOJ has become under Mukasey, and of course it would only get worst if a Democrat is elected in 2008.
1.13.2008 10:14pm
Waldensian (mail):

O boy, the old machine gun bogeyman.

And ironically, as a matter of federal law, owning a machine gun really isn't much of a problem at all. Just a few hoops to jump through. State law varies. In Virginia, for example, you can own a machine gun, but you can't hunt with it. Which means that at some point, somebody must have tried....
1.13.2008 10:15pm
Stu (mail):
DOJ supporting strict scrutiny would be more than I'd ever expect.

I didn't read DC's brief in the Circuit Court, so I don't know how well they argued that even if 2A protects an individual right, the ordinance is reasonable. But the Court does say that "[t]he protections of the Second Amendment are subject to the same sort of reasonable restrictions that have been recognized as limiting, for instance, the First Amendment." Parker at 53.

I can understand DOJ's desire to retain some federal regulation. But IMO, the Feds have gone too far, especially with cosmetically impaired weapons such as ones with pistol grips, bayonet lugs, or grenade launchers for grenades that are not available. These features never enhanced any crimes. I'd like to see a correction to reflect some reasonableness.

And I'd love to see some Sec. 1983 suits against BATF though.
1.13.2008 10:28pm
Michael Masinter (mail):

And I'd love to see some Sec. 1983 suits against BATF though.


BATF agents act under color of federal, not state law. Section 1983 does not authorize suits against individuals who act under color of federal law.
1.13.2008 10:36pm
bobolinq (mail):
Like other provisions of the Constitution that secure individual rights, the Second Amendment’s protection of individual rights does not render all laws limiting gun ownership automatically invalid.
This sentence just makes me sad. First, it compares two things that are not comparable: "provisions" and "protection" (the Second Amendment is a "provision"; "protection" is the function of that provision, not a provision itself). Second, even if the comparison were properly structured, it would be stupid: why would "other provisions of the Constitution that secure individual rights" have anything to do with whether gun laws are valid?

The writer meant something like this:
Provisions of the Constitution that secure individual rights, such as the Second Amendment, do not necessarily secure those rights against all regulation whatsoever. Thus, while the Second Amendment secures an individual right to gun ownership, it does not automatically invalidate all laws limiting gun ownership.
But he or she tried to cram too much into one sentence and ended up with a piece of illogical, incompetent writing. Oh Office of the Solicitor General, what happened to you? Where is your craft pride? Where are your copyeditors?
1.13.2008 10:54pm
Dave D. (mail):
...When I visited Russia in 2000, it included a visit to the Artillery Museum in St. Petersburg. The docent led us to the Machinegun exhibit room, and we could fondle, hell, we could dismantle, anything we wished. But when the tour guide suggested we see the pistol exhibit, the docent demurred, saying that pistols were severely controlled in Russia and we couldn't even look at them.
...Machineguns, and especially submachineguns, which shoot pistol bullets ( 1/10 th the power of rifle bullets ), are way overrated as to their actual and
potential lethality. For that we have Al Capone to thank, as well as his P.R. agents in the press. Oh well, it sold papers.
1.13.2008 10:56pm
Jim at FSU (mail):
I don't really understand the obsession with keeping the 86 ban (no new machine guns for civilians, 922(o)) or keeping open the possibility for an unlikely resurrection of the assault weapons ban. It really doesn't serve the interests of the ATF or anyone else. As a matter of fact, the ATF would be one of many parties to benefit from the law being struck down.

If the MG ban were to go away, everyone wins.
Benefits:
1) The ATF gets a ton of tax revenue from all the additional transfers. There is currently a ton of pent-up demand. 20 years worth.
2) The domestic manufacturers get a huge boost from all the extra business they do. This doesn't even count the benefit they would get from not having to retool to make castrated versions of all their military weapons to get around 922(o).
3) The military no longer has to give constant handouts to their small arms suppliers. In fact, due to the relatively high volume of civilian sales, per-weapon costs will likely be far lower than if the suppliers sell only to the military. Barrett is a great example of a military contractor that doesn't depend on government handouts to stay alive. This is good for the military and good for our tax dollars.

Even the potential drawbacks are entirely overstated:
1) Crime doesn't go up because registered machine guns have been used in exactly one crime ever, and that crime was committed by a corrupt police officer. Remember that police officers are essentially exempt from the ban.
2) Which brings us to point two- criminals never went through the NFA transfer system anyway. The 26 USC provisions were always adequate to prosecute criminals caught with machine guns. This was the whole point of the law in the first place.

Of course, if the NFA itself is found to be unconstitutional, that would really pare back the ATF's jurisdiction. But isn't the NFA founded on pre-new-deal jurisprudence that relied on the power of taxation? I would expect it to be a very complex bit of litigation. In any case, going from "strict scrutiny in Heller" to "NFA is overturned" seems a bit of a stretch at this point. I think the DOJ is being misguided.
1.13.2008 10:56pm
Oren:
Of course, if you think the federal government's briefs should not try to defend the interests of the federal government, then that is a different issue entirely.
Pure comedy gold.
1.13.2008 11:11pm
Mike Gallo (mail) (www):
What amazes me is that the DOJ called the current state of machinegun regulation a prohibition, which it is not. It is a registry. Sad to know that the idots who wrote this defending current federal laws didn't even know the laws. Malum Prohibitum, right? We must need the laws, because machineguns are bad, and we know because we've got a law prohibiting registering them.

*sigh*
1.13.2008 11:42pm
Anon88:
The machine gun issue is a red herring. MGs could be excluded as "Arms" under the Second Amendment if the Court ever needs to address the issue.

The unfortunate balancing test proposed by the DOJ would allow courts to hollow out any individual right recognized. An approach holding flat bans on "Arms" to be per se unreasonable is the best way to ensure an RKBA that means something. It'll be a real setback if Scalia and Thomas are the only two Justices who agree.
1.14.2008 12:22am
Waldensian (mail):

Machineguns, and especially submachineguns, which shoot pistol bullets ( 1/10 th the power of rifle bullets ), are way overrated as to their actual and
potential lethality.

Boy, I don't know about that.

First, there's a reason the Russians (who knew quite a bit about killing people) were so high on the sub for urban warfare.

And of course the full scale machine gun changed the course of land warfare forever. I don't see how anyone could seriously claim that the MG-42 or M2 are "way overrated as to their actual and potential lethality."
1.14.2008 12:25am
wuzzagrunt (mail):
The unfortunate balancing test proposed by the DOJ would allow courts to hollow out any individual right recognized.

I'm pretty sure that's the point.
1.14.2008 12:46am
Gene Hoffman (mail) (www):
Orin and all,

There are two things I don't get about this. First, let me grant you that the SG does have to defend attacks on Federal Laws.

1. The SG could have said nothing. Am I incorrect on this? SCOTUS did not request their opinion and DC law was not directly passed by Congress. Silence could have been golden.

2. What are the politics here? Did the administration think it was doing the gun rights community a favor with the individual rights interpretation? If I'm correct that the SG could have remained mute, why not exercise the right to remain silent? Even if they chose to speak the could have defended the felon/insane bar and the MG registration system. There is no MG ban except the new manufacturing ban and that ban is just no big deal if NFA is retained - even if NFA is retained in a more shall issue way.

It's not like this wins voters from the other side or middle to the GOP. One could argue strongly that it pushes the middle away.

-Gene
1.14.2008 1:01am
Jim at FSU (mail):
Machine guns changed the face of warfare because the methods that came before are the worst possible methods to employ against machine guns. Cavalry and infantry charges against machine gun emplacements are essentially suicide. Once you realize this, defeating machine guns is relatively easy.

Machine guns work great in two narrow areas-
1) Very close range, where accuracy is much less important than stopping power.
2) Suppressive fire, where the lack of accuracy in the MG is compensated for by the accuracy of the guys flanking the target of the suppression.

Outside of these areas, the machine gun is at an enormous disadvantage due to:
-high ammo consumption. There is a very definite limit to how much ammo a single person can carry. Firing 10 rounds a second (a very middling figure of 600rpm) will very quickly expend even a large store of ammo.
-in a non-mounted gun, very low accuracy. Accuracy is reduced by barrel heat, the gyration of the firing mechanism and recoil.
-in a mounted machine gun, low mobility. Being unable to quickly displace with your 100+ lbs of ammunition and gun makes you a prime target for anyone nearby who has a rifle. It also makes it easy for people to go around the machine gun. An unsupported machine gun position is not very strong at all.
-it attracts attention. Machine guns are hilariously loud and advertise their use for many miles.

A lone criminal with an MG42 will draw enormous amounts of police attention in addition to inviting innocent parties to seek cover. Once he expends the element of suprise, it would just be a matter of time before the criminal was picked off by a sharpshooter or the police managed to get around behind him. It would be no more dangerous than any other barricaded suspect with a long gun.

In any case, the DOJ's brief is designed to pay lip service to the right while making it essentially unenforceable.
1.14.2008 1:18am
OrinKerr:
Gene Hoffman writes:
1. The SG could have said nothing. Am I incorrect on this? SCOTUS did not request their opinion and DC law was not directly passed by Congress. Silence could have been golden.
They could have done this in the sense that there was no legal requirement that they file a brief. However, my impression -- never having worked in the SG's office, mind you -- is that the SG files a brief when there is a significant federal interest at stake unless there are really unusual circumstances.

Of course, those who want the Court to strike down the law often get annoyed when the SG does its job. Witness the reaction to the SG's brief in the Voter ID case from those who wanted that law struck down, ;and the allegations that filing the brief was somehow improper. But that's the usual practice, I think.
. What are the politics here? Did the administration think it was doing the gun rights community a favor with the individual rights interpretation? If I'm correct that the SG could have remained mute, why not exercise the right to remain silent? Even if they chose to speak the could have defended the felon/insane bar and the MG registration system. There is no MG ban except the new manufacturing ban and that ban is just no big deal if NFA is retained - even if NFA is retained in a more shall issue way.
I have no idea what the politics or tactics of the case are.
1.14.2008 1:24am
JunkYardLawDog (mail):
I thought the DOJ's job was to defend the constitution FIRST and the then the laws of the land. It seems to me Orin and others here get pretty excited if the Executive Branch (i.e. the President) seeks to defend presidential power in a way that conflicts with their views of constitutional authority, but passes off on the beloved DOJ defending its federal power despite the consequences to the constitution itself.

When the NFA was passed in the 30's rather than make an outright ban on machine guns, the congress just made a license and tax so high that nobody (or almost nobody) could ever get one. I believe they did this because the congress in the 30's believed an outright ban of machine guns would have been unconstitutional. Now nobody in Congress believes banning anything would be unconstitutional. How how far we have slid down that slippery slope.

Says the "Dog"
1.14.2008 1:36am
SIG357:
I'm afraid I don't quite buy the argument that it is the role of the Bush administration to seek to preserve federal power wherever possible. Or in this instance in particular.

I have no idea what the politics or tactics of the case are.





It looks like the administration has decided it wants this case to go away without causing any inconvenience for either political party. The political consequences if the court follows its recommendations will likely be minimal, in the short term. But this is one more constituency the GOP is shafting. I imagine that somehow, someday, the bill will come due.
1.14.2008 1:48am
Gene Hoffman (mail) (www):
Orin writes:

They could have done this in the sense that there was no legal requirement that they file a brief. However, my impression -- never having worked in the SG's office, mind you -- is that the SG files a brief when there is a significant federal interest at stake unless there are really unusual circumstances.

I concur on the thought but it kind of assumes that there is a federal interest in a handgun ban in DC? Seeing as there is no actual Federal Law in this case and the entire brief is speculative about future implications of a test it really seems discretionary on the SG's part.

I'm not simply making a policy argument here - though I would certainly have preferred silence.

-Gene
1.14.2008 1:49am
33yearprof:
Government, once tasting it, never gives up any element of power gladly or easily.
1.14.2008 2:14am
OrinKerr:
JunkYardLawDog writes:
I thought the DOJ's job was to defend the constitution FIRST and the then the laws of the land. It seems to me Orin and others here get pretty excited if the Executive Branch (i.e. the President) seeks to defend presidential power in a way that conflicts with their views of constitutional authority, but passes off on the beloved DOJ defending its federal power despite the consequences to the constitution itself.
JYLD, I think you're failing to recognize a basic distinction between an expectation that something will happen and a normative approval or disapproval of that event. They are different. For example, I expect it will snow next week; however, that doesn't mean I want it to snow. The former is about the chances something will happen; the latter is about whether I approve or disapprove of that thing.

In this thread, I did not express a view of whether DOJ's position was correct. I think the best hint of that is when I wrote, at 10:12pm, "Just to be clear, I'm not saying that DOJ's position is correct."
1.14.2008 2:54am
Public_Defender (mail):
For those conservatives who think the SG's office should have turned on its client, would you think it would be OK for an Obama administration to roll over and concede the unconstitutionality of say, a law restricting labor organizing?

I once watched a prosecutor concede the unconstitutionality of an anti-gay law. I agreed that the law was unconstitutional and very bad policy. But it was the prosecutor's job to defend it. I lost a lot of respect for that prosecutor.

Professor Kerr is right, the SG's job is to defend federal statute against constitutional challenge. If anything, the SG's failed at that job by conceding helpful arguments, such as individual v. collective rights. The SG also attacked the law it was defending:


Given that the D.C. Code provisions at issue ban a commonly-used and commonly-possessed firearm in a way that has no grounding in Framing-era practice, those provisions warrant close scrutiny under the analysis described above and may well fail such scrutiny.


If anyone should be ticked, it's the DC government, whose lawyers aren't really defending it diligently
1.14.2008 5:56am
markm (mail):
In what way is the DC government the SG's client?
1.14.2008 7:49am
PersonFromPorlock:
bobolinq:

But he or she tried to cram too much into one sentence and ended up with a piece of illogical, incompetent writing.

Second Amendment style, eh?
1.14.2008 10:09am
Letalis Maximus, Esq. (mail):
Yep, it is the old machine gun boogieman again. The SG's brief is about, and only about, the NFA and 18 USC section 922(o). Period. End of story. If the Second Amendment means strict scrutiny, the whole NFA taxation and 922(o) ban on post-1986 transferable machine guns scheme of regulation is at risk. With only heightened scrutiny, not so much.

And owning a machine gun is a big deal. A very big financial deal because under 922(o) no new transferable (i.e. can be owned by non-military and non-law enforcement individual citizens) have been manufactured since May 1986. Thus, to own one you have to go on the secondary market (which means they should all be C&Rs, but that is another story) and they start, I mean start, at $3500 and that is for a Gordon Ingram's crappy little MAC. An M16 starts at $10,000. Real collectibles, like Stoners and WWII German stuff, is pushing six figures.
1.14.2008 12:51pm
David M. Nieporent (www):
For those conservatives who think the SG's office should have turned on its client, would you think it would be OK for an Obama administration to roll over and concede the unconstitutionality of say, a law restricting labor organizing?
First, DC is not the SG's client. (You can tell, because this is an amicus brief.)

Second the answer to your Obama hypo would depend on the facts of the case and whether the law was really unconstitutional.
I once watched a prosecutor concede the unconstitutionality of an anti-gay law. I agreed that the law was unconstitutional and very bad policy. But it was the prosecutor's job to defend it. I lost a lot of respect for that prosecutor.
Really? Because in my legal ethics classes, we learned that we weren't supposed to make frivolous arguments, even on behalf of our clients. Our "job" is not to defend an illegitimate position.

And contrary to how you portray it, the prosecutor's client is only nominally the government; it's actually the constitution. A corporate client may have an interest in defending a bad position with no legal merit -- but the government doesn't have an interest in upholding an unconstitutional law.


You're a public defender, right? If a witness came forward at trial and provided a strong alibi, and the prosecutor dropped the case, would you "lose a lot of respect" for the prosecutor because his "job" is to prosecute the defendant? Hopefully not; hopefully you realize (hopefully he realizes) that his job is justice, not prosecuting defendants.
1.14.2008 2:43pm
Dilan Esper (mail) (www):
My suspicion is that the DOJ is concerned because there are quite a few people in prison for violating gun laws who were convicted of these offenses because they did something more serious and this was an easier conviction. Similar to statutory rape laws being used against actual rapists, and tax evasion laws being used against organized crime figures.

If this is correct, than it means that the DOJ has to defend existing laws, as a matter of practice, because under Teague v. Lane, invalidation of gun laws under the Second Amendment would be fully retroactive on habeas review (because it means that the substantive offense is not, in fact, a crime). So we are talking about thousands of criminals being let out of prison.

I think Parker was rightly decided by the DC Circuit. But I understand why the DOJ is doing what it is doing.
1.14.2008 3:14pm
Dave Hardy (mail) (www):
What I don't understand about the SG's position on standard of review is this. They cite election ballot access cases that (in this one area ALONE) apply a two tiered test: minor impact on freedoms get something like intermediate scrutiny, severe impacts get strict scrutiny. (This wierdness is due to the wierd status of elections: a First Amendment activity that can only function pursuant to government organizing and rulemaking).

OK, assume that's the test here. A complete ban on handguns to everyone, and a ban on long arms being kept useful for defense, is surely not a minor restriction on arms rights.

So strict scrutiny was necessary.

DC Circuit applied strict scrutiny.

So proper result is to affirm, not to remand.
1.14.2008 3:58pm
rosignol (mail):
<i>Boy, I don't know about that.</i>

<i>First, there's a reason the Russians (who knew quite a bit about killing people) were so high on the sub for urban warfare.</i>


You're making an assumption about the 'why' that may not be valid.

Submachine guns are more lethal than handguns in some senses, but they are far more difficult to conceal, which makes it much easier for authorities (or anyone else) evaluate a situation before deciding how to deal with it. Pistols are more concealable, and would be a very unpleasant surprise for oppressive authorities.

.....

My family hosted a Russian visitor back during the Goodwill Games in Seattle... one of the things he wanted to do was visit a gun shop. He was completely uninterested in the rifles or shotguns, but was amazed by the number of pistols in stock, and did not believe us when we told him anyone who was a US citizen with no criminal convictions could buy one and take it home (this was before waiting per
1.14.2008 5:19pm
Wahoowa:
I think Dilan's response is the credited answer regarding the SG/DOJ/Federal interest here. U.S. Attorneys across the country use the federal felon in possession statute as a street cleaner to help local prosecutors with unreconstructed criminals. State prison systems are notorious for letting felons out very early--a 20-year sentence might earn the person 2 actual years in jail. However, there is no parole in the federal system and good behavior credits are generally much harder to come by. A 20-year sentence will generally get you at least 16 or 17 years served. So when someone gets out of jail but is only committing state crimes, felon in possession is a way to get him booted to the federal system.
1.14.2008 5:40pm
wuzzagrunt (mail):
Dilan Esper wrote:

My suspicion is that the DOJ is concerned because there are quite a few people in prison for violating gun laws who were convicted of these offenses because they did something more serious and this was an easier conviction.

As a practical matter, I think the prohibition against felons possessing firearms would be the very last restriction to fall by the wayside. I wouldn't bet the farm on it ever going away. I may be wrong on this, but it seems that efforts to restore felons' right to vote is almost entirely focused on the legislative process. The question of (at least some) limitations on convicted felons' rights is mostly settled.......no?
1.14.2008 8:21pm
Dilan Esper (mail) (www):
wuzza:

The felon in possession statute, I agree, is unlikely to fall under any circumstance. But how about all the criminals imprisoned under state gun laws? Heck, how about all the criminals in the DC itself that are imprisoned under the gun laws there?

Remember, a newly recognized 2nd Amendment right is going to be FULLY RETROACTIVE ON HABEAS REVIEW, which means there could be hundreds or even thousands of people in jail or prison just with respect to violations of municipal gun bans. The DOJ, as a practical matter, is going to be very cautious here, despite being sympathetic to the pro gun cause.
1.14.2008 10:36pm
DiverDan (mail):
OrinKerr responds to my (admittedly snarky) post as follows:


Just to be clear, I'm not saying that DOJ's position is correct. I'm just saying that the DOJ is representing the institutional interests of the federal government. Entities charged with defending their own power are generally less likely to be concerned that they are or will become tyrants. Of course, if you think the federal government's briefs should not try to defend the interests of the federal government, then that is a different issue entirely.


Other posters have found the whole concept that the DOJ should not represent the institutional interests of the federal government humorous ("pure comedy gold", as one poster put it).

As a general matter, I would not disagree. However, when the dispute involves Constitutional liberties which serve to protect the citizens from an overreaching government, there is an inherent conflict of interest for the DOJ, which is not only supposed to represent the institutional interests of the federal government, but, as an agent of representative government (and completely funded with tax dollars), is also supposed to speak for the people generally. If we are to understand that the DOJ is speaking ONLY for the institutional interests of the government, which might prefer a more "flexible" approach to the Second Amendment (or the First Amendment, the Fourth Amendment, the Fifth, Sixth, Eighth, or 14th Amendments, for that matter, in appropriate cases) in order to preserve federal gun controls, then why not make that representation explicit? Further, in cases like that before the Court, where the Federal Government has no direct interest (other than the possible adverse effect which a broad reading of the Second Amendment might have on future cases involving Federal gun regulation), and the intervention of the DOJ is purely optional, why should taxpayers foot the bill for the government taking a position which might have the effect of narrowing the scope of their Second amendment rights? After all, the First Amendment protects me from states using compulsory fees to advocate political positions with which I disagree, see Keller v. State Bar of California, 496 U.S. 1 (1990), why shouldn't it apply equally to protect me from the federal government using tax dollars to fund this type of political advocacy?
1.15.2008 11:12am
Dave D. (mail):
...I appreciate the DOJ defending Federal incarcerations, ....but not much. Surely the Court will recognize this as turf-abwehrverhalten and accord it the requisite minimal respect.
..Everyone draws their own lines beyond which specific weapons are too dangerous for public possession. Those who trust themselves and their fellows draw the line farther out, but guns are potential projections of power that many fear.
..I can only hope that trust trumps fear, reality trumps superstition and maturity overcomes the Hollywood fantasy factor.
1.16.2008 12:01am
Dave D. (mail):
...I appreciate the DOJ defending Federal incarcerations, ....but not much. Surely the Court will recognize this as turf-abwehrverhalten and accord it the requisite minimal respect.
..Everyone draws their own lines beyond which specific weapons are too dangerous for public possession. Those who trust themselves and their fellows draw the line farther out, but guns are potential projections of power that many fear.
..I can only hope that trust trumps fear, reality trumps superstition and maturity overcomes the Hollywood fantasy factor.
1.16.2008 12:01am