LA Times:

A D.C. ban on home handguns may not be constitutional, the solicitor general tells the Supreme Court, but rights are limited and federal firearm restrictions should be upheld.

In their legal battle over gun ownership and the 2nd Amendment, gun- control advocates never expected to get a boost from the Bush administration.

But that’s just what happened when U.S. Solicitor General Paul D. Clement urged the Supreme Court in a brief Friday to say that gun rights are limited and subject to “reasonable regulation” by the government and that all federal restrictions on firearms should be upheld.

Reasonable regulations include the federal ban on machine guns and other “particularly dangerous types of firearms,” he said in the brief. Moreover, the government forbids gun possession by felons, drug users, “mental defectives” and people subject to restraining orders, he said.

“Given the unquestionable threat to public safety that unrestricted private firearm possession would entail, various categories of firearm-related regulation are permitted by the 2nd Amendment,” Clement said. He filed the brief in a closely watched case involving Washington, D.C.’s ban on keeping handguns at home for self-defense.

The head of a gun-control group said he was pleasantly surprised by the solicitor general’s stand.

Paul Helmke, president of the Brady Campaign to Prevent Handgun Violence, said he saluted the administration for recognizing a need for limits on gun rights.

Disgusting.

Glenn Reynolds offers, in the New York Post, his view of the Supreme Court’s options in the DC Gun Ban case.

It can find that the Second Amendment doesn’t really do anything – that it’s merely a relic of an older era. But that’s a rather dangerous approach: What other parts of the Constitution might be considered relics? And can a judicial approach that leaves a tenth of the Bill of Rights meaningless possibly be sound?

It can find that the Second Amendment doesn’t grant individual rights, but only protects the right of states to arm their militias (or “state armies,” as some gun-control advocates put it). This would make the DC case go away, but at some cost: If states have a constitutional right, as against the federal government, to arm their militias as they see fit, then states that don’t like federal gun-control laws could just enroll every law-abiding citizen in the state militia and authorize those citizens to possess machine guns, tanks and other military gear.

Other consequences of “state armies” seem even more drastic. As Tom Lehrer put it:

We’ll try to stay serene and calm /

When Alabama gets the bomb.

Finally, the court can find – in accordance with the views of law professors as diverse as Harvard’s Laurence Tribe and, well, me – that the Second Amendment supports an individual right on the part of law-abiding citizens to possess firearms of the sort that are in ordinary use. As with other rights, such as freedom of speech, this is subject to reasonable regulation that stops well short of a ban.

This last would be the least radical approach, as it’s consistent with public opinion (most Americans think the Second Amendment gives them a right to own a gun) and with the 40-plus states whose own constitutions already provide for a right to arms. It would probably be the easiest to implement, too, as federal courts could (to a degree at least) look to state law for some guidance on how to implement it.

Finding otherwise would be ticklish for the court in another way. In recent decades, the Supreme Court has found many rights that aren’t specifically spelled out in the Constitution – rights to things like abortion, contraception or sodomy. If the court now follows up by denying a right that does seem to be spelled out, it would put its own legitimacy in the public eye at grave risk.

Houston Chronicle:

WASHINGTON — The Supreme Court will discuss gun control today in a private conference that soon could explode publicly.

Behind closed doors, the nine justices will consider taking a case that challenges the District of Columbia’s stringent handgun ban. Their ultimate decision will shape how far other cities and states can go with their own gun restrictions.

“If the court decides to take this up, it’s very likely it will end up being the most important Second Amendment case in history,” said Dennis Henigan, the legal director for the Brady Campaign to Prevent Gun Violence.

Henigan predicted “it’s more likely than not” that the necessary four justices will vote to consider the case. The court will announce its decision Tuesday, and oral arguments could be heard next year.

Lawyers are swarming.

Texas, Florida and 11 other states weighed in on behalf of gun owners who are challenging D.C.’s strict gun laws. New York and three other states want the gun restrictions upheld. Pediatricians filed a brief supporting the ban. A Northern California gun dealer, Russell Nordyke, filed a brief opposing it. ..

The Second Amendment says, “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.”

Gun-control advocates say this means that the government can limit firearms ownership as part of its power to regulate the militia. Gun ownership is cast as a collective right, with the government organizing armed citizens to protect homeland security.

“The Second Amendment permits reasonable regulation of firearms to protect public safety and does not guarantee individuals the absolute right to own the weapons of their choice,” New York and the three other states declared in an amicus brief.

Gun-control critics contend that the well-regulated militia is beside the point, and say the Constitution protects an individual’s right to possess guns.

Last March, a divided appellate court panel sided with the individual-rights interpretation and threw out the D.C. ban.

The ruling clashed with other appellate courts, creating the kind of appellate-circuit split that the Supreme Court likes to resolve. The ruling obviously stung D.C. officials, but it perplexed gun-control advocates.

If D.C. officials tried to salvage their gun-control law by appealing to the Supreme Court — as they then did — they could give the court’s conservative majority a chance to undermine gun-control laws nationwide.

On the one hand, the movement of legal scholarship in recent decades towards acknowledgment of the real meaning of the Second Amendment based on the historical content of the political theory of the period and numerous statements by the framers argues that Supreme Court consideration would necessarily recall the Second Amendment fully from exile, and produce nationwide enforcement of an individual right to keep and bear arms.

But, on the other hand, realism notes that the consequence of overturning every form of state and local gun prohibition, and very possibly the National Firearms Act of 1934 which effectively prohibited private possession of fully-automatic weapons are bound to seem highly unpalatable to most justices. Moreover, these days, intensely combative, ideologically charged decisions have a strong tendency to result in 5-4 decisions, turning upon the (commonly European-informed) private moral intuitions of Justice Anthony Kennedy.

On the whole, given the opportunity of having the fate of an important but widely disputed, Constitutional right decided, potentially for many decades, effectively by Justice Kennedy alone, I’d rather wait for a different Court.

David Kopel explains that it also violated the 1987 Constitution of the state of “New Columbia,” adopted by the District’s Council to serve in a desired condition of future statehood, which included in its Bill of Rights, a Sec.102 whose text was identical to the federal Second Amendment.

Accordingly, when DC lawyers argue to lower federal courts, and to the U.S. Supreme Court, that the language of the U.S. Second Amendment is not an ordinary individual right, they are making an argument which is decisively contradicted by the very constitution adopted by the government whom the lawyers are representing.

Second, DC’s cert. petition makes the novel argument that the District of Columbia (an entity over which the U.S. Constitution grants Congress plenary power) is somehow already a sovereign state for purposes of the Second Amendment; they claim that the 1886 Supreme Court decision in Presser v. Illinois, which held that under the 14th Amendment Privileges and Immunities clause, none of the Bill of Rights are enforceable against states, immunizes D.C. today from the enforcement of the Second Amendment. Yet the New Columbia Constitution shows that D.C. wants to be a state and wants the exact language of the Second Amendment to be enforceable against D.C.

Senator Pat Leahy of Vermont offers some interesting advice to President Bush on his choice of a new attorney general to replace the unfortunate Alberto Gonzalez.

Leahy contends that

The attorney general is the people’s lawyer, not the president’s.”

which is an amusing piece of sophistry. Of course, “the people” don’t actually play any role in the federal system after elections are concluded. “The people” cannot decide what side the Justice Department will choose to take on an abortion case. “The people” cannot decide on whether or not Microsoft should be prosecuted for an alleged monopoly. And “the people” cannot decide whether 8 federal attorneys or all 93 need to be replaced.

What Senator Leahy means by “the people” is obviously what Thomas Sowell likes to call the consensus of the elect, the collective viewpoint of the mainstream media, the liberal democrat congressional majority, the establishment punditocracy, and so on.

The Senate has the Constitutional right to advise and consent on presidential appointments of ministers of state and officers of government, but executive power is vested by the Constitution in the president not in “the people” nor in Congress nor in the consensus of the liberal establishment. Cabinet officers really do work for the president.

Senator Leahy goes on to urge President Bush to select a candidate for attorney general, who is neither notoriously partisan nor divisive.

Above all, the new attorney general cannot interpret our laws to mean whatever the president wants them to mean. The departing attorney general showed a lack of independence from the president and the White House. We have seen the disastrous consequences.

The next attorney general must uphold the rule of law on behalf of all of the American people.

The president begins this process. Through his choice for attorney general, he can be a uniter or a divider. For the sake of the Department of Justice and its vital missions on behalf of the American people, this would be an excellent time to work with us to unite the nation.

And how does the last democrat president’s choice of attorney general measure up to Pat Leahy’s proposed standards?

Janet Reno was anything but a uniter, and it is difficult to imagine a possible Republican choice who could be equivalently offensive to the other party. Reno was a leftwing extremist , who many people believed misused her Dade County Prosecutorship on behalf of her own political agenda. She was appointed by President Clinton despite a record of ideologically-motivated, questionable prosecutions in Florida, and despite her dubious moral character and life-style.

Janet Reno went on to compile arguably the most controversial record of any attorney general, presiding over the federal massacre of Seventh Day Adventists in Waco, Texas, the seizure by machine-gun-wielding federal agents of a six-year-old refugee for deportation to Communist Cuba, and –of course– the unprececented and completely partisan firing of all 93 US Attorneys.

Chicago Journalist Roger Simon of the Politico (not Roger L. Simon, the mystery writer and conservative blogger) does not like conservative Senator Larry Craig one bit, but even the liberal Simon thinks Craig should fight to keep his Senate seat.

Larry Craig should not resign from the Senate.

He should force the Senate to expel him, which the Constitution provides for, but which the Senate has not done to any of its members since 1862.

If he can, Craig also should withdraw his guilty plea to what police say was “lewd conduct” in a public restroom at Minneapolis airport in June.

I have no doubt that Craig, an Idaho Republican, did what a cop says he did.

But I have a big doubt as to whether any of it was a crime. And I think a jury would have a reasonable doubt that he is guilty as charged.

Larry Craig committed a lewd act in that restroom? Larry Craig committed disorderly conduct in that restroom?

Let the prosecutors prove it in court.

Just because Craig is a jerk doesn’t mean he shouldn’t get civil rights in this country. …

According to the Senate website: “Since 1789, the Senate has expelled only 15 of its entire membership. Of that number, 14 were charged with support of the Confederacy during the Civil War.”

The non-Civil War expulsion was that of William Blount of Tennessee, a Democratic Republican, who was expelled in 1797 for “a plan to incite the Creek and Cherokee Indians to aid the British in conquering the Spanish territory of West Florida.”

Larry Craig is no William Blount.

Larry Craig is a hypocrite, a liar and a fool.

But if we kicked people out of the Senate for that, how many senators would we have left?

Bryan Fischer points out one little detail which we in the blogosphere and the MSM both absentmindedly overlooked. And he’s quite right.

As word comes of Sen. Larry Craig’s reconsideration of his announced resignation from the U.S. Senate, it turns out that his best ally in getting rid of his guilty plea for his conduct in a Minneapolis airport restroom may be the United States Constitution.

If the senator had been a better student of the U.S. Constitution, his arrest may never happened at all, and if the U.S. Constitution is followed, as of course it should be, the senator’s arrest and guilty plea will have to be vacated.

This is because the Constitution, in a straightforward and unambiguous manner, states in Article 1, Section 6 that “Senators and Representatives. shall. be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same.” (emphasis mine) The only exceptions are for treason, felony and breach of peace, and the senator, of course, was charged with a misdemeanor.

Since the senator was on his way to Washington, and did in fact cast a vote on the evening of the day on which he was arrested, his arrest and subsequent questioning were, technically speaking, unconstitutional.

If the senator had flashed the Constitution at the officer as soon as the officer flashed his badge at him, the officer would have had no choice but to release the senator to go on his way.

This little detail (which I should have remembered, having discussed it myself in relation to the FBI search of Congressman Jefferson’s office) provides quite a plot twist.

It is difficult to imagine a court seeing any alternative to throwing out that Minneapolis misdemeanor on Constitutional grounds. Senator Craig, therefore, winds up with no conviction, and does not need to resign. The State of Idaho, and the rest of America, gets to retain the services of a senator with a 96 ACU rating. A happy ending for all but the democrats.

AP:

The FBI violated the Constitution when agents raided U.S. Rep. William Jefferson’s office last year and viewed legislative documents, a federal appeals court ruled Friday.

The court ordered the Justice Department to return any privileged documents it seized from the Louisiana Democrat’s office on Capitol Hill. The court did not order the return of all the documents seized in the raid.

Jefferson argued that the first-of-its-kind raid trampled congressional independence. The Justice Department said that declaring the search unconstitutional would essentially prohibit the FBI from ever looking at a lawmaker’s documents.

The U.S. Court of Appeals for the District of Columbia Circuit rejected that claim. The three-judge panel unanimously ruled that the search itself was constitutional but that FBI agents crossed the line when they viewed every record in the office without giving Jefferson the chance to argue that some documents involved legislative business.

“The review of the Congressman’s paper files when the search was executed exposed legislative material to the Executive” and violated the Constitution, the court wrote. “The Congressman is entitled to the return of documents that the court determines to be privileged.”

The raid was part of a 16-month international bribery investigation of Jefferson, who allegedly accepted $100,000 from a telecommunications businessman, $90,000 of which was later recovered in a freezer in the congressman’s Washington home.

Jefferson pleaded not guilty in June to charges of soliciting more than $500,000 in bribes while using his office to broker business deals in Africa. The Justice Department said it built that case without using the disputed documents from the raid.

The court did not rule whether, because portions of the search were illegal, prosecutors should be barred from using any of the records in their case against Jefferson. That will be decided by the federal judge in Virginia who is presiding over the criminal case.

“We’re pleased with the court’s decision that makes it clear that the search violated the Speech or Debate Clause of the Constitution,” Jefferson’s attorney, Robert Trout, said after a brief review of the ruling. He said he has not yet discussed the decision with Jefferson.

The Justice Department did not immediately return messages seeking comment on the decision. Officials have said they took extraordinary steps, including using an FBI “filter team” not involved in the case to review the congressional documents. Government attorneys said the Constitution was not intended to shield lawmakers from prosecution for political corruption.

The court was not convinced. It said the Constitution insists that lawmakers must be free from any intrusion into their congressional duties. Such intrusion, even by a filter team, “may therefore chill the exchange of views with respect to legislative activity,” the court held.

The case has cut across political party lines. Former House Speakers Newt Gingrich, a Republican, and Thomas Foley, a Democrat, filed legal documents opposing the raid, along with former House Minority Leader Bob Michel, a Republican.

Conservative groups Judicial Watch and the Washington Legal Foundation were joined by the liberal Citizens for Responsibility and Ethics in Washington in supporting the legality of the raid.

This blog differed from most conservative blogs last year at the time of the raid, believing that Article I. Section 6 providing for Congressional immunity from arrest while Congress is in session would very likely be interpreted by the court as precluding a raid on a Congressman’s office.

Of course, the matter is certain to go on to the Supreme Court. I think they will very probably hear the case, and I think it is most likely that they will uphold the First Circuit’s ruling.

At American Thinker, Amil Imani argues that Islam should be treated Constitutionally as a hostile totalitarian power, not a religion. He has a point, but liberals always used to think that actual agents and allies of literal hostile totalitarian countries engaged in espionage and subversion ought to be treated Constitutionally as exercising rights of free speech and opinion, so the odds of mustering a consensus in favor of Mr. Imani’s proposal seem poor.

But while it doesn’t seem very plausible that we could possibly succeed in passing laws banning the building of Wahabi mosques in the United States, I do think we could stop allowing Muslims to enter the country. There is certainly precedent. During the last major period of immigration around the turn of the last century, persons seeking admission to the United States were required to affirm that that they were not members of a hereditary aristocracy, Anarchists, or Polygamists (i.e., Mormons).

The Immigration Bill didn’t really please anybody (except for George W. Bush, and who cares what he thinks?), and died a deserved death last night during a procedural vote in the Senate.

Becky Akers and Donald J. Boudreaux, in the Christian Science Monitor of all places, supply the right answers: no restrictions on immigration, no welfare for immigrants.

The Constitution does not authorize the federal government to control immigration. Nor does it say anything about illegal aliens. We looked for a clause with directions for ranking immigrants on a points system – another feature of the Senate’s reform bill – but we couldn’t find one.

Sadly, lawmakers have repeatedly interpreted this silence as license for ill-conceived legislation. Congress began barring entry to the nation in 1875 with prostitutes and convicts. Soon, all sorts of people fell short of congressional glory: ex-convicts in 1882, along with Chinese citizens, lunatics, and idiots. Paupers, polygamists, and people suffering from infectious diseases or insanity made the list in 1891, while the illiterate were banned in 1917. …

Given the talk about point systems, guest-worker programs, and fenced borders, you’d think immigration endangers America’s cultural and economic wealth. But just as the unhampered flow of goods and services – free trade – blesses participants, the easy flow of workers – free labor markets – also brings unprecedented prosperity.

By contrast, schemes to control immigrants hurt everyone, native or newcomer, and not just economically. Customs agents often abuse immigrants at the borders, but they also interrogate, search, and fine returning Americans.

Immigrants must produce the proper papers for bureaucrats’ inspection, but so do their American employers and landlords. And let’s not even think about the scary implications of the draconian Real ID Act.

As technology and globalization continue shrinking the world, people and ideas move more quickly and freely. Political borders become increasingly irrelevant. But that’s fine because the qualities that define Americans don’t depend on geography. Rather, it’s their history of liberty, pluck, ingenuity, optimism, and the pursuit of happiness. Culture is a matter of mind and spirit. Why entrust it to politicians, border guards, and green cards?

The ideal immigration policy for this smaller world would harmonize with both the Constitution and common decency. It wouldn’t deny anyone the inalienable right to come and go. …

If Congress seriously wants reform, it might begin by returning decisions on immigration to the individuals involved, in obedience to the Constitution’s Ninth and 10th Amendments.

But Congress will need to go further. Requiring taxpayers to subsidize immigrants’ healthcare, education, food, shelter, or anything else breeds resentment.

Plenty of private charities will extend a hand to newcomers, not to mention friends and families eager to help their countrymen adjust to American life. …

What do we do about the 12 million illegal immigrants already here? Apologizing for their poor welcome is a start. Then we can hire them, patronize their businesses, become friends. So long as we don’t control them, and they don’t expect our taxes to support them, goodwill should prevail on both sides. …

Quota-wielding bureaucrats should not define the country’s demographic destiny. It’s time to let the free choices of millions of individuals determine America’s complexion.

————————

Hat tip to Frank A. Dobbs.

The Left has been accusing the Bush Administration of trampling Americans’ Constitutional rights with little basis for some time. So, what do you know? Alberto Gonzalez, the Attorney General currently considerably under fire from the Left, really is trying an Constitutional endrun.

The Second Amendment Foundation yesterday issued this press release:

Attorney General Alberto Gonzales’ troubling support of legislation that would allow him and future attorneys general the arbitrary power to block firearms purchases without due process is cause for him to step down as the nation’s highest ranking law enforcement officer, the Second Amendment Foundation said today.

The bill, S. 1237, was introduced last week at the Justice Department’s request by Sen. Frank Lautenberg (D-NJ), one of the most extreme anti-gunners in Congress. Called the “Denying Firearms and Explosives to Dangerous Terrorists Act of 2007,” this legislation would give the Attorney General discretionary authority to deny the purchase of a firearm or the issuance of a firearm license or permit because of some vague suspicion that an American citizen may be up to no good.

“This bill,” said SAF founder Alan Gottlieb, “raises serious concerns about how someone becomes a ‘suspected terrorist.’ Nobody has explained how one gets their name on such a list, and worse, nobody knows how to get one’s name off such a list.

“The process by which someone may appeal the Attorney General’s arbitrary denial seems weak at best,” Gottlieb suggested, “and there is a greater concern. When did we decide as a nation that it is a good idea to give a cabinet member the power to deny someone’s constitutional right simply on suspicion, without a trial or anything approaching due process?

“We’re not surprised that General Gonzales has found an agreeable sponsor in Frank Lautenberg,” Gottlieb observed. “The senator from New Jersey has never seen a restrictive gun control scheme he did not immediately embrace, and S. 1237 is loaded with red flags. It would allow an appointed bureaucrat the authority to suspend or cancel someone’s Second Amendment right without even being charged with a crime.

“Attorney General Gonzales has no business asking for that kind of power over any tenet in the Bill of Rights,” Gottlieb said. “He took an oath to uphold the Constitution, not trample it. Perhaps it is time for him to go.”

When you are being actively attacked by the Left, and you proceed to stab-in-the-back your own base on the Right which is defending you, I would call that “implicitly resigning.” Mr. Gonzalez might as well make the implicit explicit.

Murderous attacks like the recent homicides at Virginia Tech always produce demands for some sacrifice of liberty as part of a program of preventive measures intended to prevent their recurrence.

A PersonfromPolock, at the Volokh Conspiracy, observes (not entirely tongue-in-cheek) that slightly reducing the immunities supplied by the First Amendment would do a lot more to help than eviscerating the Second Amendment.

To the Editor:

A practical, commonsense way of reducing gun violence — especially in the schools — would be a federal law prohibiting, or at least seriously limiting, the interstate reporting of sensational gun crimes like Virginia Tech for five working days.

Such a law would not affect local coverage, where there is a need for the immediate dissemination of information, but would make the event ‘old news’ when it was finally reported nationally and therefore unlikely to get the massive publicity that invites further, copycat violence. Even a small reduction in today’s intense coverage of such events might, by not stimulating some potential gunman to action, save lives.

While ‘gun’ laws are hard to enforce because of the easy concealment of firearms, the public nature of ‘news’ would make enforcement of this law virtually automatic.

Because the delay would be short and serve a compelling government interest, it should pass constitutional muster; the Brady law serves admirably as a precedent here. While First Amendment absolutists will cavil, the simple fact is that it is as wrong to hold that the Press Clause protects a media ‘right’ to lethally endanger the public as it would be to hold that the Religion Clause protects human sacrifice.

Sincerely,

For some reason, even though the suggested law would clearly be ‘worth trying’ (a standard rationale of the Left), no ‘anti gun violence’ paper has ever published it.

Hat tip to Glenn Reynolds.