History at the Court next Tuesday

The Supreme Court has scheduled oral arguments in the DC gun case which may decide the meaning of the Second Amendment for next Tuesday, March 18, 2008. It is a remarkable case for many reasons - not the least of which is that the Court is writing on a relatively clean slate about one of the amendments contained in the Bill of Rights. The crux of the matter, whether the Second Amendment creates an individual right or merely addresses some vague collective right of the states, has never been directly addressed by the Court in more than 200 years - and the issue is of vital interest to millions of citizens and political candidates as gun control is a hot topic in American politics.

Robert Novak, whose article today appears at Townhall.com, asserts that the case is unusual for another reason - that it is another example of "who's watching the store" in the Bush administration. The administration position, in theory represented before the Court by the U.S. Solicitor General, was ill served by the brief submitted by Paul Clement who took a very weak position on a matter where Republicans in general and the President in particular have very strong beliefs and preferences. Neither the White House nor the newly appointed Attorney General Michael Mukasey were aware of the Solicitor General’s position prior to the brief being filed.

In an unprecedented action, Vice-President Cheney, in his role in the legislative branch as President of the Senate, joined with a large group of Senators and Congressmen in submitting an Amicus brief to the Court which strongly advocated for a finding of individual rights in the Second Amendment.  I wrote of the Cheney brief at the time that it was seen as a very unusual departure from the President’s position.  Mr Novak states in his attached article that Cheney was, in fact, giving voice to the President’s position – that the DOJ brief was contrary to the administration position.  Bizarre behavior, to say the least. 

The oral arguments may give some clues as to the outcome of the case, expected to be announced in June.  The usual suspects are expected to align  with the four conservative Justices (Roberts, Scalia, Thomas and Alito) on one side and the liberal Justices on the other (Stevens, Ginsburg, Souter and Breyer).  The swing vote which will decide the meaning of the Second Amendment is Justice Kennedy.

The political impact of this question is hard to overstate.  Gun control is a political hot button for millions of voters (many of whom vote Democrat).  It will be difficult for the Presidential candidates, for example, to be pro-gun rights while arguing for nomination and confirmation of liberal Justices to the Court. 

My personal opinion on gun control has been written here on several occasions.  To me gun control laws are an impermissible intrusion by government into the regions of private property rights and a citizen’s right to defend himself and his family in a violent and lawless world. But more than that, the idea that a mere recitation of a State’s right to organize a militia should occupy the second position in the Bill of Rights is unacceptable and defies logic for scholars of the Constitution and the history of the Bill of Rights.  One would expect that the Second Amendment would contain the kind of ringing declaration of individual rights and limitation on government power that shines from the other Bill of Rights amendments.  It looks like one man in a black robe gets to decide – and maybe the Oral Arguments and the questioning of the attorneys at the Bar will give clues as to how this critical issue will be decided. 

My source: http://www.townhall.com/columnists/RobertDNovak/2008/03/13/ws_gun_battle

W's Gun Battle
By Robert D. Novak
Thursday, March 13, 2008

WASHINGTON, D.C. -- Preparing to hear oral arguments Tuesday on the extent of gun rights guaranteed by the Constitution's Second Amendment, the U.S. Supreme Court has before it a brief signed by Vice President Cheney opposing the Bush administration's stance. Even more remarkably, Cheney is faithfully reflecting the views of President George W. Bush.

The government position filed with the Supreme Court by U.S. Solicitor General Paul Clement stunned gun advocates by opposing the breadth of an appellate court affirmation of individual ownership rights. The Justice Department, not the vice president, is out of order. But if Bush agrees with Cheney, why did the president not simply order Clement to revise his brief? The answers: disorganization and weakness in the eighth year of his presidency.

Consequently, a Republican administration finds itself aligned against the most popular tenet of social conservatism: gun rights that enjoy much wider support than opposition to abortion or gay marriage. Promises in two presidential elections are abandoned, and Bush finds himself left of Democratic presidential candidate Sen. Barack Obama.

The 1976 District of Columbia statute prohibiting ownership of all functional firearms a year ago was called unconstitutional in violation of the Second Amendment in an opinion by Senior Judge Laurence Silberman, a conservative who has served on the D.C. Circuit Court for 22 years. It was assumed Bush would fight Washington Mayor Adrian Fenty's appeal.

The president and his senior staff were stunned to learn, on the day it was issued, that Clement's petition called on the high court to return the case to the appeals court. The solicitor general argued that Silberman's opinion supporting individual gun rights was so broad that it would endanger existing federal gun control laws such as the bar on owning machine guns. The president could have ordered a revised brief by Clement. But under congressional Democratic pressure to keep hands off the Justice Department, Bush did not act.

Cheney did join 55 senators and 250 House members in signing a brief supporting the Silberman ruling. While this unprecedented vice presidential intervention was widely interpreted as a dramatic breakaway from the White House, longtime associates could not believe Cheney would defy the president. In fact, he did not. Bush approved what Cheney did in his constitutional legislative branch role as president of the Senate.

That has not lessened puzzlement over Clement, a 41-year-old conservative Washington lawyer who clerked for Silberman and later for Supreme Court Justice Antonin Scalia. Clement has tried to explain his course to the White House by claiming he feared Justice Anthony Kennedy, the Supreme Court's current swing vote, would join a liberal majority on gun rights if forced to rule on Silberman's opinion.

The more plausible explanation for Clement's stance is that he could not resist opposition to individual gun rights by career lawyers in the Justice Department's Criminal Division (who clashed with the Office of Legal Counsel in a heated internal struggle). Newly installed Attorney General Michael Mukasey, a neophyte at Justice, was unaware of the conflict and learned about Clement's position only after it had been locked in.

A majority of both houses in the Democratic-controlled Congress are on record against the District of Columbia's gun prohibition. So are 31 states, with only five (New York, Massachusetts Maryland, New Jersey and Hawaii) in support. Sen. Obama has weighed in against the D.C. law, asserting that the Constitution confers individual rights to bear arms -- not just collective authority to form militias.

This popular support for gun rights is not reflected by an advantage in Tuesday's oral arguments. Former Solicitor General Walter Dellinger, an old hand at arguing before the Supreme Court, will make the case for the gun prohibition. Opposing counsel Alan Gura, making his first high court appearance, does not have the confidence of gun-owner advocates (who tried to replace him with former Solicitor General Ted Olson).

The cause needs help from Clement in his 15 minute oral argument, but not if he reiterates his written brief. The word was passed in government circles this week that Clement would amend his position when he actually faces the justices -- an odd ending to bizarre behavior by the Justice Department.