The Amici in favor of Washington DC in the DC v Heller Second Amendment case have been filed. They are all here at the website of the lawyers for Heller. Most are not surprises. The leftists have all filed for DC in favor of the ban. Janet "Butcher of Waco" Reno, Eric Houlder, and Seth Waxman, most of the Clinton admin officials all support the DC gun ban. So do the gun control groups, the leadership of the ABA, leading leftist professors like Saul Cornell and Erwin Chemerinsky, big cities like New York, Chicago, and San Francisco and the usual suspects. That doesn't irk me. I expect that from them.
I didn't expect the Bush Administrations department of justice to file an amicus brief. You can read it here. It tries to have things both ways, but if anyone tries to spin this as pro-gun, they are mistaken or lying. It does us no favors whatsoever.
This is a stab in the back. We go out as the swing vote, hit the doors, upset Gore in Tennessee and New Hampshire in 2000 and defeat John Kerry in Ohio, Missouri, Virginia, and other close states. This is our thanks. This is our biggest case in 70 years for all the marbles, and the Bush administration helps the worst city in the country for our 2nd Amendment rights on a case involving a total firearms ban. This isn't about automatic weapons or even those ugly guns the media calls so called "assault weapons." This is about basic pistols and working shotguns.
The Bush administration wants to remand this back to the lower court for more proceedings so the court can decide if a pistol is a "militia weapon." It says it supports the Second Amendment, but opposes strict scrutiny or heightened scrutiny. Those bolded words are the key here.
Here's a very simplified version of con law 101. There are three major types of scrutiny. Strict Scrutiny, Intermediate scrutiny, and rational basis review.
Under Strict Scrutiny, government needs a compelling reason for the law to be upheld. The burden of proof is on the govenment. You see this standard often in racial cases, abortion cases, substansial due process, and state laws regulating interstate trade (protectionism within states). Laws rarely pass a strict scrutiny standard.
Intermediate scrutiny is more complicated and probably would not apply here as it is rarely used. (some gender cases is where it applies)
Under rational basis review - almost all laws are upheld (with the exception of Lawrence v Texas, Romer v Evans, US v Lopez, and Printz v US) The two issues there were laws against sodomy, gay rights, and ironicaly, two gun cases (1000 ft from a school ban, part of the Brady Bill) Most laws are given rational basis review treatment. Heavy deference is given to legislatures under that type of review. Burden of proof is on Heller then, not the government. There is a somewhat of a movement towards "rational basis with teeth" as my Con-Law professor mentioned referring to the Romer v Evans case, but it's still extremely rare to overturn a law subject to rational basis review.
What is wrong is how this can be subject to anything other than strict scrutiny. If we have all these expanding "substansial due process" rights under the 5th and 14th amendment as the court says we have over the last 40 years (Griswold, Roe v Wade, Doe v Bolton, etc etc) and anything related to those, as well as all fundamental rights, are given strict scrutiny from the courts. Outside of abortion which impacts a seperate human being directly, that's the right treatment for these laws. If anything related to discrimination and protectionism is given strict scrutiny. How can the 2nd Amendment - specificly mentioned in the Constitution - not be given the same treatment regarding strict scrutiny? For the Bush administration to push for denying strict scrutiny to our rights, which unlike "abortion", is written out specificaly in our constitution, is a slap in the face to all of us gun owners across the country.
The Bush administration's brief is saying that we have a right to keep and bear arms, but it is not a FUNDAMENTAL right. It's a right that should be treated the same way the 10th amendment is treated in their eyes. Lots of restrictions. Bush admin has some good writers on their team, I'll give them that much, but this filing sucks and I'm going to be giving some people a real earful on Monday.
This is wrong. Damn wrong.