22 January 2008

W on the Second Amendment

The Solicitor General's brief in the District of Columbia Second Amendment case sets forth this conservative administration's position on the constitutional bite associated with the Second Amendment. The quote below is from the table of contents of the brief:

A. The Second Amendment protects an individual right to possess firearms, including for purposes unrelated to militia operations
1. The text of the Second Amendment, and its placement within the Bill of Rights, strongly indicate that the Amendment protects an individual right.
2. The Second Amendment’s reference to the necessity of a “well regulated Militia” does not limit the substantive right that the Amendment secures.
B. Like rights conferred by surrounding provisions of the Bill of Rights, the individual right guaranteed by the Second Amendment is subject to reasonable restrictions and important exceptions.
1. Congress has authority to prohibit particular types of firearms, such as machineguns.
2. Congress has substantial authority to ban the private possession of firearms by persons whom Congress deems unfit to keep such weapons.
3. Congress has authority to regulate the manufacture, sale, and flow of firearms in
C. The Court should remand this case to the lower courts to permit them to analyze the constitutionality of the D.C. laws at issue under the proper constitutional inquiry.

Thus, in a nutshell, there is an individual right, but it may be "well regulated." The brief asks for a remand based upon its analysis, effectively punting on the issue of the constitutionality of the District's especially strict municipal ordinances, while establishing a standard that would uphold essentially every federal gun control law as constitutional as a reasonable regulation of the right.

No comments: