Constitutional Law

Wall St. Journal takes on Solicitor General's brief

Right here.

Ouch!

"[I]t is nothing short of astonishing, and dispiriting, that the Bush Justice Department has now weighed in with an amicus brief that is far too clever by half."

"This is supposedly necessary because of this single phrase in Judge Silberman's 58-page ruling: "Once it is determined -- as we have done -- that handguns are 'Arms' referred to in the Second Amendment, it is not open to the District to ban them" (our emphasis). This has alarmed the lawyers at Justice, eliciting their dire warnings that somehow Judge Silberman's logic would bar the regulation of M-16s, felons with guns, or perhaps even Sherman tanks."

"Instead, it has pulled a legal Katrina, ineptly declining even to take a clear view of whether Mr. Heller's rights had been violated. It dodges that call by recommending that the case be remanded back to the lower courts for reconsideration."

Hat tip to Joe Olson...

UPDATE: A legal tactical call? Not really. It'd be predictable that the SG would defend federal law in general. And that the Court isn't going to buy striking down the NFA or GCA; no matter what justification you could give, But the SG could have argued, without undermining the case, that what is at issue here is a ban of an entire class of firearms, descended from those known to the Framers. That fails any possible test, and thus you should affirm the DC Circuit. We would alert you to the fact we have a number of other federal laws, not at issue here. And then argue either (a) we think they'd pass strict scrutiny or (b) for some other reason they would be subject to a lessened standard of review (hint, hint, don't write us into a box with a ruling that ALL gun laws are subject to strict scrutiny). With either approach, affirm the DC Circuit.

Full post as published by Of Arms and the Law on January 22, 2008 (boomark / email).