It looks like the 2nd Amendment showdown at the Supreme Court isn’t shaping up exactly like we expected. I, for one, sure didn’t think gun rights supporters would be up in arms, so to speak, over the Bush Administration’s position in the case.
Pretty much everyone had assumed the administration would strongly support the group challenging Washington, D.C.’s handgun ban as a violation of the 2nd Amendment. But that was before the administration filed a brief Friday declining to support either side.
What’s more, the brief rejected a legal standard carefully articulated by Judge Laurence Silberman, the conservative icon whose opinion struck down the D.C. handgun ban as unconstitutional. And it then urged the justices to send the case back to the lower courts to think it through again, using a different, less stringent standard of review.
That was all was too much for the lawyer representing the people challenging the ban, who told the Washington Post’s Bob Barnes that the administration “is basically siding with the District of Columbia.”
Ok. Can we have a reality check, now?
With the Court poised to finally decide whether the 2nd Amendment guarantees an individual right to own a gun—one of the great unresolved questions of constitutional law—let’s not forget that the Bush Administration is arguing, firmly, that the answer should be “YES,” but subject to reasonable restrictions.
That’s a big deal. Before Bush took office, the Justice Department had taken the position that the 2nd Amendment didn’t protect an individual right, but instead was concerned with the state’s interest in a “well regulated militia.” Then-Attorney General John Ashcroft reversed that long-standing position, but always acknowledged that some restrictions and regulations were permissible.
The administration’s brief, filed by Solicitor General Paul Clement (a former Silberman clerk, by the way), is consistent with that approach. It strongly defends the individual rights interpretation, yet says the Constitution allows reasonable limits on gun ownership.
Let’s keep our eye on the ball here. The question in the case—the issue that has split the lower courts, the titanic issue the Court is going to decide—is whether the 2nd Amendment guarantees an individual right. Clement’s brief argues, strongly, that it does—and that the DC law may very well be unconstitutional.
If the Supreme Court agrees, that would be a landmark ruling. For the first time, the Court would recognize there’s a constitutional right for an individual to own a gun, not just some collective right for states to maintain militias.
And that would mean scores of gun laws would be vulnerable, and courts would be flooded with lawsuits challenging them.
Don’t think the justices—even conservative justices you think would be inclined to find an individual right exists—aren’t concerned about creating new rights, opening up other avenues of litigation, bogging down the courts in endless disputes about which guns are legal, which restrictions are permissible, which regulations pass muster.
Clement’s brief seems to anticipate that reality, suggesting a more cautious approach than Silberman adopted. And that’s one reason why Clement’s brief, strategically and legally, makes a lot of sense.
It basically recognizes a decision that the 2nd Amendment protects an individual right is a full days work for the Court. It urges the justices to take it slow. Don’t map out everything in this one case. Adopt a more nuanced standard. Send the case back to let lower court to sift through the issues and develop the doctrine—instead of having Justice Kennedy do it all at once.
That’s not a bad strategic approach for supporters of gun rights. At the same time, it also fully represents the interests of the federal government. DOJ, after all, has to adopt a position consistent with defending federal firearms laws—and there are a lot of them.
That’s another reason it declined to embrace Judge Silberman’s more categorical, stricter standard for analyzing gun laws, saying that approach could invalidate machine gun laws, too. I don’t think it’s at all clear Silberman’s approach would do that, but the Justice Department—again, tasked with defending those federal laws while also trying to get five votes—doesn’t want to take the chance.
It instead is proposing a balancing test: The greater a law infringes on a person’s right to own a gun, the more closely the court should look at the regulation.
Under that analysis, handgun bans—as the brief emphasizes a couple of times—may well be unconstitutional. Machine gun bans would not be.
And, as Clement argues, the 2nd Amendment doctrine could “develop in an incremental and prudent fashion as is necessary to decide particular cases that may arise.”