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January 22, 2008

Isn't the SG just too smart about the criminal justice fall-out from broad Second Amendment rights?

This Wall Street Journal editorial, titled "Misfire at Justice," continues the bashing of the Bush Administration's amicus brief in the Heller Second Amendment case.  Here are excerpts:

The Second Amendment's right to bear arms has rarely been considered by the Supreme Court, but this year the Court is hearing a case that could become a Constitutional landmark.  So it 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....

The D.C. Circuit's opinion in Heller is forceful, clearly reasoned and Constitutionally sound.  By supporting that decision and urging the Supreme Court to validate it, the Bush Administration had the opportunity to help the Court see its way to a historic judgment.  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.

The SG's blundering brief only increases the odds of another inscrutable High Court split decision, with Justice Kennedy standing alone in the middle with his balancing scales, and the lower courts left free to disregard or reinterpret what could have been a landmark case.  Is anybody still awake at the White House?

As I have suggested in prior posts, the problem is not a slumbering Administration that is "too clever by half," but rather a Justice Department that may be far too alert concerning the potential criminal justice fall-out from a broad Second Amendment ruling in Heller.  The "legal Katrina" may not be the SG's brief in Heller, but rather the 2255 petitions from federal prisoners and other challenges to severe federal gun sentences that could flood lower courts if the Supreme Court issues a broad Second Amendment ruling.

As detailed in the latest USSG statistics, over 8,000 offenders were sentenced to an average of over six years' imprisonment for federal firearm offenses in just the last fiscal year, and thousands of other offenders got severe sentence enhancements for firearm possession in a drug offense.  Though a broad Second Amendment ruling may not ultimately help any of the tens of thousands of offenders serving time for federal gun offenses, such a ruling certainly would inspire and motivate lots of defense lawyers to bring Second Amendment challenges to extreme federal punishments often imposed on defendants simply for keeping arms in a safe manner. 

As the crack retroactivity debate highlighted, DOJ often fears lots of litigation as much as it fears losing the occasional case.  It is easy for pundits to say the SG should not be worried about the Second Amendment extending too far to help felons and others now subject to extreme federal firearm punishment, but I think (indeed, hope) the SG's fear of lots of Second Amendment litigation is well founded.

Some recent related posts:

January 22, 2008 at 09:43 AM | Permalink


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Anyone else queasy with the WSJ's "Katrina" metaphor?

Posted by: Anon | Jan 22, 2008 4:51:11 PM

The vast majority of the Fed sentences are 922(g) crimes and the issue before the Court will not alter those cases

Posted by: lawdevil | Jan 23, 2008 12:20:03 PM

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