Yes, you read this headline correctly. An email from Joe Olson at Hamline University School of Law alerted me to this problem. David Hardy briefly discusses the Bush Administration's brief on the Parker/Heller case. Here is my question: if it is merely a question of reasonable regulations, why put the second amendment in the bill of rights? Why use the term "shall not be infringed"? The DOJ brief mentions the phrase "shall not be infringed" once when it quotes the amendment. Here is my question: what would the writers of the Second Amendment have had to write if they were serious that "the right of the people to keep and bear arms shall not be infringed"? A copy of DOJ's brief can be seen here.

There are numerous factual mistakes in the brief. For example, on page 21 they refer to the "current federal machine gun ban." There is no such ban. Some 250,000 machine guns are legally owned in the US. The discussion of what is meant by the term "well regulated" on page 22 is not what I know the term to mean. As I understood the term at the amendment was written meant "well disciplined," but the DOJ brief wants to use the current usage of the term.

What is particularly disappointing is the excellent research that the DOJ had done on the Second Amendment just a few years earlier. Thanks to John McGregor for reminding me to post a link to this.

The Washington Post's take on the DOJ brief can be read here.

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Blogger Dan Paden said...

This doesn't surprise me, unfortunately. I've yet to see any clear indication that the Bush administration could be considered conservative.

1/12/2008 6:43 AM  
Anonymous Mike said...

I've seen, elsewhere, many comments about abandoning the Republican party over such idiocy. And Al Gore would have done better? John Kerry? Under their tender mercies, it would not be hard to imagine that we would be fighting terrorists in our own streets while our national government drove inexorably toward seizing all privately owned firearms, for national security reasons, of course, as they seize on virtually any pretext to justify the banning of firearms.

While the Bush Administration's stance on this is foolish and ill considered, it should be no surprise. The Founders understood it well and wrote the Second Amendment because of the underlying impulses. Even a government with a Republican in the White House, a government that, despite the insane protestations of some on the left, is not trying to overtly abolish civil liberties, will act as all governments: It will try to maintain and expand as much of its power over the people as possible. Power does indeed corrupt.

Thus the government agrees that the Second Amendment does speak of individual rights, but suggests that the government must be allowed to abridge them if it has a good enough reason. One wonders what language the Founders might have considered to be necessary had they anticipated such juvenile rambling: "...shall not be infringed, and we really mean it. Not infringed. Ever. Never, In any way. Don't you know what 'not infringed' means? We're not kidding."

1/12/2008 8:24 PM  

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