Gun Case Causes Bush Administration Rift (New York Times)

March 17, 2008

By LINDA GREENHOUSE

WASHINGTON — Suppose that after decades of silence on the subject, the Supreme Court was to decide that the Second Amendment protects an individual right to gun ownership, as opposed to a right tied to service in a militia.

Such a ruling would be a cause for dancing in the streets by proponents of the individual-rights view — or so it might seem. After all, the great majority of federal courts have long refused to read the Second Amendment as protecting an individual right, and the Supreme Court itself has said nothing for nearly 70 years.

But nothing is quite that straightforward when it comes to the case to be argued Tuesday on the constitutionality of the District of Columbia’s strict gun-control law. Judging by the sniping from within the Bush administration at its own solicitor general, Paul D. Clement, for a brief he filed in the case, a long-awaited declaration by the Supreme Court that the Second Amendment protects an individual right would not be nearly enough.

The local law, which dates to 1976, is generally regarded as the strictest gun-control statute in the country. It not only bars the private possession of handguns, but also requires rifles and shotguns to be kept in a disassembled state or under a trigger lock. Mr. Clement’s brief embraces the individual-rights position, which has been administration policy since 2001 when John Ashcroft, then the attorney general, first declared it in a public letter to the National Rifle Association. But the brief does not take the next step and ask the justices to declare, as the federal appeals court here did a year ago, that the District of Columbia law is unconstitutional.

Not that the solicitor general’s brief finds the law to be constitutional, or even desirable. Far from it: the brief offers a road map for finding the law unconstitutional, but by a different route from the one the appeals court took. The distinction may seem almost picayune, but it is a measure of the passions engendered by anything to do with guns that Mr. Clement’s approach is evidently being seen in some administration circles as close to a betrayal.

The brief argues that in striking down the District of Columbia’s law, the United States Court of Appeals for the District of Columbia Circuit took too “categorical” an approach, one that threatens the constitutionality of federal gun laws, like the current ban on machine guns. Mr. Clement asks the justices to vacate the decision and send the case back to the appeals court for a more nuanced appraisal of the issue.

This was a fairly standard performance for a solicitor general, who has a statutory obligation to defend acts of Congress. It is routine for any solicitor general to try to steer the court away from deciding cases in a way that could harm federal interests in future cases.

But Vice President Dick Cheney was nonetheless so provoked by Mr. Clement’s approach that last month he took the highly unusual step for a vice president of signing on to a brief filed by more than 300 members of Congress that asks the Supreme Court to declare the District of Columbia law “unconstitutional per se.” (Mr. Clement’s brief, by contrast, says that “a per se rule is clearly out of place in the Second Amendment context” because at the time the amendment itself coexisted with the “reasonable restrictions on firearms” that were in place at the time.)

The Congressional brief, circulated by Senator Kay Bailey Hutchison, Republican of Texas, asserts that “no purpose would be served by remanding this case for further fact finding or other proceedings.” The case “involves nothing more than the right of law-abiding persons to keep common handguns and usable firearms for lawful self-defense in the home,” the brief says.

The conservative columnist Robert D. Novak, who often reflects views from inside the Bush administration, wrote Thursday in The Washington Post that there was “puzzlement over Clement” and an expectation “in government circles” that the solicitor general would “amend his position when he actually faces the justices.”

Those who have watched the 41-year-old Mr. Clement, a veteran of nearly four dozen arguments who enjoys the respect of justices across the ideological spectrum, think it most unlikely that he would bow to pressure of this sort. “Don’t count on it,” Martin S. Lederman, a Georgetown University law professor and former Justice Department lawyer, wrote on the Web site Scotusblog, adding that “the institutional cost to the office of such a reversal” would be high.

However it eventually plays out, the inside-the-administration drama underscores a point that has largely been lost in the run-up to the argument in this high-profile case: a ruling that the Constitution guarantees an individual as opposed to a collective right to gun ownership would be far from the end of the age-old debate over the meaning of the Second Amendment. To borrow from Winston Churchill, it would only be the end of the beginning.

The court would then have to move to the next stage, defining what an individual right actually entails and what government regulations it permits. In constitutional analysis, this is where the rubber meets the road. For every constitutional right, the court chooses a standard of review, essentially a determination of how high a bar the government has to clear in order to justify a regulation impinging on the right.

“Strict scrutiny,” the most protective standard, accorded to rights the court deems “fundamental,” almost always dooms to failure an effort at government regulation. The briefs on the individual-rights side of this case, District of Columbia v. Heller, No. 07-290, argue for applying strict scrutiny, and it is Mr. Clement’s refusal to embrace that standard that has caused such consternation.

The government’s brief argues for judicial review that would be “heightened” but not strict, employing a sliding scale that balances the impact that any restriction might have on the “protected conduct” of private gun ownership against “the strength of the government’s interest in enforcement” of the restriction. The District of Columbia’s law “may well fail such scrutiny,” the brief observes.

To its opponents, the District of Columbia law means that “individuals may never possess a functional firearm at home,” in the words of the brief filed for the plaintiff, Dick Anthony Heller. He is a security guard who carries a gun on duty at the building on Capitol Hill that houses the administrative offices of the federal judiciary. His request for a permit to keep the gun in his Capitol Hill home for self-defense was turned down.

To its defenders, the law is a public safety measure that bans handguns “because they are disproportionately linked to violent and deadly crime,” as the District of Columbia’s brief puts it. “The Second Amendment was not intended to tie the hands of government in providing for public safety,” the brief asserts.

Exactly what the Second Amendment was intended to do is at the heart of the dispute. With a combined total of 69 briefs, the two sides offer competing historical and linguistic analyses of the Second Amendment’s 27 words, mystifying in their arrangement and punctuation: “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.”

Forty-four states have constitutional provisions that unambiguously protect a right to individual gun ownership, a fact that limits the potential impact of the court’s ruling no matter which way the decision goes. The District of Columbia, of course, is not a state. How the justices will take that fact into account, if at all, remains to be seen.