Monday, March 17, 2008
Nation Awaits D.C. Handgun Ruling (Washington Times)
March 17, 2008
By Gary Emerling - The District of Columbia's fight to preserve its nearly 32-year-old ban on handguns before the U.S. Supreme Court has drawn nationwide attention as a bellwether vote on the limits of gun control.
"Regardless of who wins and loses, the crucial thing is really going to be what [the justices] are going to say about the Second Amendment," said Paul Helmke, president of the Brady Campaign to Combat Gun Violence. "It will set the ground rules for analyzing almost every gun law in the country for years to come."
Attorneys for the city and Dick Anthony Heller — a special police officer whose failed effort to register a handgun in 2002 helped spur the legal battle — will argue their cases before the justices on Tuesday.
Both sides in the case, along with city officials, federal lawmakers and the White House, say the court's decision places much at stake.
"It'll be an issue as important as abortion, gay marriage — these flash points that so divide us in the United States," said interim D.C. Attorney General Peter J. Nickles, who has led the city's efforts to keep its gun ban.
Widespread impact
The case will mark the first time in about 70 years that the Supreme Court has examined the Second Amendment, which states: "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."
The rarity of the case and the potential consequences of the ruling account for the widespread attention it has received: Nearly 70 amicus briefs have been filed on behalf of more than 320 members of Congress, 36 states and other interested parties on both sides of the case.
The most notable U.S. city to submit a brief is Chicago, which, aside from the District, potentially has the most to lose or gain from a court decision.
In 1982, Chicago enacted a ban similar to the District's, forbidding handgun registration, with some exceptions.
"The Heller case is obviously of a greater interest to people locally, both within city government and to residents as well, as I think it is to people across the country," said Benna Ruth Solomon, Chicago's deputy corporation counsel, who steered the drafting of the city's brief to protect its ban.
Ms. Solomon said there are "several steps" before a decision in the District's case would affect Chicago's ban or the gun laws of other cities and states.
For example, the court would have to rule that the Second Amendment is "incorporated" by the 14th Amendment against the states — meaning the amendment applies to state and local governments and not just to federal lawmakers.
Such a ruling would go beyond the question the court intends to address, but the justices have authority to exceed those boundaries.
"Our brief was really extremely prophylactic in nature," Ms. Solomon said. "It is not because we are directly affected by the case. It is more because we don't wish to be directly affected by the case."
Alan Gura, an attorney for Mr. Heller who will argue before the Supreme Court, said a ruling in his favor could put gun prohibition "off the table."
"Basically, gun laws that make sense, gun laws that are designed to help police solve crime ... are not going to be affected," said Mr. Gura, who will argue against the District's lead counsel in the case, former acting U.S. Solicitor General Walter E. Dellinger III.
Others who have weighed in on the case include county prosecutors worried that the court's decision could result in appeals from convicted criminals.
A brief filed by district attorneys from San Francisco, New York and elsewhere states that "Second Amendment challenges to criminal laws already have begun."
"A felon convicted of criminal firearm possession recently challenged a New York gun possession statute based on the D.C. Circuit's opinion ... saying he wanted to see 'how far [he] could ride this pony,' " the brief states.
Anthony Girese, counsel to Robert T. Johnson — the district attorney for Bronx County in New York — said if the Supreme Court rules that gun ownership is an individual right and that the Second Amendment applies to the states, the justices then could decide the proper standards for gun regulation.
That, he said, "could have a very profound effect nationwide."
"A lot of major cities, including New York, have fairly restrictive gun regulations," Mr. Girese said. "I would anticipate that if we get to [that level] there will be a vast volume of litigation about the validity of all sorts of criminal laws."
The court's pending decision — which is expected to come down in June — also has caused the Bush administration to question the effect the ruling may have on existing federal laws, including those that generally ban machine guns and weapons undetectable by metal detectors.
U.S. Solicitor General Paul D. Clement, who also will weigh in before the high court on Tuesday, filed a brief in the case urging the justices to send the Heller case back to the lower court for more consideration. He said the appellate panel used a wrong and dangerous approach when it concluded that the District cannot ban handguns because they are "Arms" referred to in the Second Amendment.
"Such a categorical approach would cast doubt on the constitutionality of the current federal machine gun ban, as well as on Congress's general authority to protect the public safety by identifying and proscribing particularly dangerous weapons," the brief states.
The solicitor general's brief also affirms the administration's view that the Constitution guarantees an individual right to gun ownership.
'More than just a gun case'
The District's gun ban, the most stringent in the nation, was passed in June 1976 in a 12-1 vote by the D.C. Council.
It prohibits city residents — with few exceptions — from registering handguns and keeping them in the city. It also requires legal firearms such as shotguns and rifles to be stored disassembled or bound with trigger locks.
In February 2003, Mr. Heller and five other residents sued the city in U.S. District Court, hoping to win the right to keep handguns and an assembled shotgun in their homes for self-defense.
"I was upset in 1976, but I didn't know anything about politics," Mr. Heller told The Washington Times last week. "So I just said 'Oh, obviously some intelligent citizen is going to take care of this for us.' Here we are; I'm the last one standing."
Judge Emmet G. Sullivan, appointed to his post by President Clinton in 1994, dismissed the case about a year later. However, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit reversed the decision last March, ruling 2-1 that the right to bear arms as guaranteed in the Second Amendment applies to individuals and not only to militias.
Mr. Heller, 66, who lives in Southeast near the Supreme Court building and will be in attendance for the arguments, is the last remaining original plaintiff. The other plaintiffs were dismissed for lack of standing.
He said the case "hasn't changed me at all."
"It's simply an event that's bigger than this citizen, and it represents so much more than just a gun case. It represents defending our Constitution," he said.
D.C. officials, including Mr. Nickles and Mayor Adrian M. Fenty, a Democrat, weighed their decision to appeal the case to the Supreme Court amid warnings from gun-control advocates that the breadth of the District's ban could endanger existing gun laws across the country.
"The fact that it's dealing with the District's gun ban probably makes it a more difficult case than we would have perhaps liked to have seen argued," Mr. Helmke said. "In effect, they picked the easiest one to attack."
David Vladeck, a professor at Georgetown University's law school, said the ramifications of the court's decision depend on how broadly the nine justices address the case's central question: whether the city's laws violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia but wish to keep handguns and other firearms for private use in their homes.
"One of the reasons why states and cities are worried about this case is they don't want the court to impose unreasonable rules regarding the restriction of weapons," Mr. Vladeck said.
Mr. Nickles and Mr. Fenty say the city's gun-control laws reflect the will of D.C. residents.
"We listened to those folks," Mr. Nickles said, but "you know, my first job is to win. And I think we can and will."
Federal interests
The effectiveness of gun laws in the District, where warring gangs and a crack cocaine surge helped the city earn its "murder capital" nickname in the early 1990s, has been disputed for years.
FBI statistics show that the District's homicide rate was 32.8 per 100,000 residents in 1975, the last full year before the gun ban was passed by the council.
In 2006, the last full year for which statistics were available, the rate of homicides and non-negligent manslaughters in the city was 29.1. The rate dropped immediately after the ban was imposed and skyrocketed in the late 1980s and early 1990s. It has leveled off in recent years. The murder rate peaked in 1991, when the city of just less than 600,000 reported 482 homicides — a murder rate of 80.6 per 100,000 residents.
The handgun ban also has been a subject of congressional debate and even has split the Bush White House.
In 2004 and 2005, congressional efforts to render parts of the city's gun laws obsolete failed despite receiving an overwhelming support from the House.
Last month, 55 senators and 250 members of the House signed onto a brief calling for the Supreme Court to overturn the D.C. gun ban by affirming the circuit court decision. The number of federal lawmakers, including 228 Republicans and 77 Democrats, is thought to be the largest ever to weigh in on a topic with the high court, at least in recent years.
"If you look at the briefs that have been filed on this case, the congressional brief is truly historic," said Wayne LaPierre, executive vice president of the National Rifle Association, which opposes the gun ban. "What you see there is the people's branch of government weighing in that it's the people's freedom, and they want it protected."
Vice President Dick Cheney, breaking with Mr. Clement's brief on behalf of the administration, signed on with the congressional brief in his capacity as president of the Senate.
Eighteen members of the House took a different stance by filing a brief noting that Congress has enacted recent legislation banning certain types of weapons.
"The interesting legal argument we raise is, 'Yes, the Supreme Court interprets the Constitution, but also the Congress interprets the Constitution every day with its legislative actions," said Rep. Chaka Fattah, Pennsylvania Democrat and lead member on the brief. "So if it was constitutional to ban assault weapons or ban weapons in national parks, then there are limits on the right to bear arms."
Mr. Fattah said it is unlikely the court's decision would result in a flurry of federal legislation because of the difficulty of passing gun-control bills in Congress. However, it may become a hot-button topic in the upcoming presidential election.
Sen. John McCain of Arizona, the presumptive Republican presidential nominee, signed on to the congressional brief and co-sponsored previous efforts to lift the ban.
McCain spokesman Randy Scheunemann said the senator thinks the D.C. gun ban is "clearly unconstitutional" and that the Second Amendment guarantees an individual's right to bear arms.
Jen Psaki, a spokeswoman for Democratic presidential hopeful Sen. Barack Obama of Illinois, said Mr. Obama "believes the Second Amendment creates an individual right, and he greatly respects the constitutional rights of Americans to bear arms."
"He also believes that the Constitution permits state and local governments to adopt reasonable and common-sense gun safety measures," she said, but would not elaborate on the whether the senator supports the D.C. gun ban.
The campaign of Mr. Obama's Democratic rival, Sen. Hillary Rodham Clinton of New York, did not respond to repeated requests for comment on the Heller case.
Mr. Nickles said the candidates likely will have to state their views if the court issues a decision. Whether the justices issue a ruling specific to the Second Amendment, the entire country will be watching.
"It's an important, watershed case," Mr. LaPierre said. "There's absolutely no doubt about that."
By Gary Emerling - The District of Columbia's fight to preserve its nearly 32-year-old ban on handguns before the U.S. Supreme Court has drawn nationwide attention as a bellwether vote on the limits of gun control.
"Regardless of who wins and loses, the crucial thing is really going to be what [the justices] are going to say about the Second Amendment," said Paul Helmke, president of the Brady Campaign to Combat Gun Violence. "It will set the ground rules for analyzing almost every gun law in the country for years to come."
Attorneys for the city and Dick Anthony Heller — a special police officer whose failed effort to register a handgun in 2002 helped spur the legal battle — will argue their cases before the justices on Tuesday.
Both sides in the case, along with city officials, federal lawmakers and the White House, say the court's decision places much at stake.
"It'll be an issue as important as abortion, gay marriage — these flash points that so divide us in the United States," said interim D.C. Attorney General Peter J. Nickles, who has led the city's efforts to keep its gun ban.
Widespread impact
The case will mark the first time in about 70 years that the Supreme Court has examined the Second Amendment, which states: "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."
The rarity of the case and the potential consequences of the ruling account for the widespread attention it has received: Nearly 70 amicus briefs have been filed on behalf of more than 320 members of Congress, 36 states and other interested parties on both sides of the case.
The most notable U.S. city to submit a brief is Chicago, which, aside from the District, potentially has the most to lose or gain from a court decision.
In 1982, Chicago enacted a ban similar to the District's, forbidding handgun registration, with some exceptions.
"The Heller case is obviously of a greater interest to people locally, both within city government and to residents as well, as I think it is to people across the country," said Benna Ruth Solomon, Chicago's deputy corporation counsel, who steered the drafting of the city's brief to protect its ban.
Ms. Solomon said there are "several steps" before a decision in the District's case would affect Chicago's ban or the gun laws of other cities and states.
For example, the court would have to rule that the Second Amendment is "incorporated" by the 14th Amendment against the states — meaning the amendment applies to state and local governments and not just to federal lawmakers.
Such a ruling would go beyond the question the court intends to address, but the justices have authority to exceed those boundaries.
"Our brief was really extremely prophylactic in nature," Ms. Solomon said. "It is not because we are directly affected by the case. It is more because we don't wish to be directly affected by the case."
Alan Gura, an attorney for Mr. Heller who will argue before the Supreme Court, said a ruling in his favor could put gun prohibition "off the table."
"Basically, gun laws that make sense, gun laws that are designed to help police solve crime ... are not going to be affected," said Mr. Gura, who will argue against the District's lead counsel in the case, former acting U.S. Solicitor General Walter E. Dellinger III.
Others who have weighed in on the case include county prosecutors worried that the court's decision could result in appeals from convicted criminals.
A brief filed by district attorneys from San Francisco, New York and elsewhere states that "Second Amendment challenges to criminal laws already have begun."
"A felon convicted of criminal firearm possession recently challenged a New York gun possession statute based on the D.C. Circuit's opinion ... saying he wanted to see 'how far [he] could ride this pony,' " the brief states.
Anthony Girese, counsel to Robert T. Johnson — the district attorney for Bronx County in New York — said if the Supreme Court rules that gun ownership is an individual right and that the Second Amendment applies to the states, the justices then could decide the proper standards for gun regulation.
That, he said, "could have a very profound effect nationwide."
"A lot of major cities, including New York, have fairly restrictive gun regulations," Mr. Girese said. "I would anticipate that if we get to [that level] there will be a vast volume of litigation about the validity of all sorts of criminal laws."
The court's pending decision — which is expected to come down in June — also has caused the Bush administration to question the effect the ruling may have on existing federal laws, including those that generally ban machine guns and weapons undetectable by metal detectors.
U.S. Solicitor General Paul D. Clement, who also will weigh in before the high court on Tuesday, filed a brief in the case urging the justices to send the Heller case back to the lower court for more consideration. He said the appellate panel used a wrong and dangerous approach when it concluded that the District cannot ban handguns because they are "Arms" referred to in the Second Amendment.
"Such a categorical approach would cast doubt on the constitutionality of the current federal machine gun ban, as well as on Congress's general authority to protect the public safety by identifying and proscribing particularly dangerous weapons," the brief states.
The solicitor general's brief also affirms the administration's view that the Constitution guarantees an individual right to gun ownership.
'More than just a gun case'
The District's gun ban, the most stringent in the nation, was passed in June 1976 in a 12-1 vote by the D.C. Council.
It prohibits city residents — with few exceptions — from registering handguns and keeping them in the city. It also requires legal firearms such as shotguns and rifles to be stored disassembled or bound with trigger locks.
In February 2003, Mr. Heller and five other residents sued the city in U.S. District Court, hoping to win the right to keep handguns and an assembled shotgun in their homes for self-defense.
"I was upset in 1976, but I didn't know anything about politics," Mr. Heller told The Washington Times last week. "So I just said 'Oh, obviously some intelligent citizen is going to take care of this for us.' Here we are; I'm the last one standing."
Judge Emmet G. Sullivan, appointed to his post by President Clinton in 1994, dismissed the case about a year later. However, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit reversed the decision last March, ruling 2-1 that the right to bear arms as guaranteed in the Second Amendment applies to individuals and not only to militias.
Mr. Heller, 66, who lives in Southeast near the Supreme Court building and will be in attendance for the arguments, is the last remaining original plaintiff. The other plaintiffs were dismissed for lack of standing.
He said the case "hasn't changed me at all."
"It's simply an event that's bigger than this citizen, and it represents so much more than just a gun case. It represents defending our Constitution," he said.
D.C. officials, including Mr. Nickles and Mayor Adrian M. Fenty, a Democrat, weighed their decision to appeal the case to the Supreme Court amid warnings from gun-control advocates that the breadth of the District's ban could endanger existing gun laws across the country.
"The fact that it's dealing with the District's gun ban probably makes it a more difficult case than we would have perhaps liked to have seen argued," Mr. Helmke said. "In effect, they picked the easiest one to attack."
David Vladeck, a professor at Georgetown University's law school, said the ramifications of the court's decision depend on how broadly the nine justices address the case's central question: whether the city's laws violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia but wish to keep handguns and other firearms for private use in their homes.
"One of the reasons why states and cities are worried about this case is they don't want the court to impose unreasonable rules regarding the restriction of weapons," Mr. Vladeck said.
Mr. Nickles and Mr. Fenty say the city's gun-control laws reflect the will of D.C. residents.
"We listened to those folks," Mr. Nickles said, but "you know, my first job is to win. And I think we can and will."
Federal interests
The effectiveness of gun laws in the District, where warring gangs and a crack cocaine surge helped the city earn its "murder capital" nickname in the early 1990s, has been disputed for years.
FBI statistics show that the District's homicide rate was 32.8 per 100,000 residents in 1975, the last full year before the gun ban was passed by the council.
In 2006, the last full year for which statistics were available, the rate of homicides and non-negligent manslaughters in the city was 29.1. The rate dropped immediately after the ban was imposed and skyrocketed in the late 1980s and early 1990s. It has leveled off in recent years. The murder rate peaked in 1991, when the city of just less than 600,000 reported 482 homicides — a murder rate of 80.6 per 100,000 residents.
The handgun ban also has been a subject of congressional debate and even has split the Bush White House.
In 2004 and 2005, congressional efforts to render parts of the city's gun laws obsolete failed despite receiving an overwhelming support from the House.
Last month, 55 senators and 250 members of the House signed onto a brief calling for the Supreme Court to overturn the D.C. gun ban by affirming the circuit court decision. The number of federal lawmakers, including 228 Republicans and 77 Democrats, is thought to be the largest ever to weigh in on a topic with the high court, at least in recent years.
"If you look at the briefs that have been filed on this case, the congressional brief is truly historic," said Wayne LaPierre, executive vice president of the National Rifle Association, which opposes the gun ban. "What you see there is the people's branch of government weighing in that it's the people's freedom, and they want it protected."
Vice President Dick Cheney, breaking with Mr. Clement's brief on behalf of the administration, signed on with the congressional brief in his capacity as president of the Senate.
Eighteen members of the House took a different stance by filing a brief noting that Congress has enacted recent legislation banning certain types of weapons.
"The interesting legal argument we raise is, 'Yes, the Supreme Court interprets the Constitution, but also the Congress interprets the Constitution every day with its legislative actions," said Rep. Chaka Fattah, Pennsylvania Democrat and lead member on the brief. "So if it was constitutional to ban assault weapons or ban weapons in national parks, then there are limits on the right to bear arms."
Mr. Fattah said it is unlikely the court's decision would result in a flurry of federal legislation because of the difficulty of passing gun-control bills in Congress. However, it may become a hot-button topic in the upcoming presidential election.
Sen. John McCain of Arizona, the presumptive Republican presidential nominee, signed on to the congressional brief and co-sponsored previous efforts to lift the ban.
McCain spokesman Randy Scheunemann said the senator thinks the D.C. gun ban is "clearly unconstitutional" and that the Second Amendment guarantees an individual's right to bear arms.
Jen Psaki, a spokeswoman for Democratic presidential hopeful Sen. Barack Obama of Illinois, said Mr. Obama "believes the Second Amendment creates an individual right, and he greatly respects the constitutional rights of Americans to bear arms."
"He also believes that the Constitution permits state and local governments to adopt reasonable and common-sense gun safety measures," she said, but would not elaborate on the whether the senator supports the D.C. gun ban.
The campaign of Mr. Obama's Democratic rival, Sen. Hillary Rodham Clinton of New York, did not respond to repeated requests for comment on the Heller case.
Mr. Nickles said the candidates likely will have to state their views if the court issues a decision. Whether the justices issue a ruling specific to the Second Amendment, the entire country will be watching.
"It's an important, watershed case," Mr. LaPierre said. "There's absolutely no doubt about that."
The D.C. Gun Case (Washington Post Editorial)
The Supreme Court approaches a momentous decision on the Second Amendment.
Monday, March 17, 2008; A16
TOMORROW THE Supreme Court will hear oral argument in a case of extraordinary importance involving the constitutionality of the District's gun control program. The justices are being asked to determine whether the Second Amendment recognizes an individual right to bear arms or whether private gun ownership is strictly linked to service in a state militia. The justices' answer could determine whether the District's gun ban stands or falls, and it could have ripple effects throughout the country.
We have long believed that a robust system of firearms laws is essential to the safety and well-being of the millions of people who live, work in and visit the District. Some argue that the District's gun laws -- some of the most restrictive in the nation -- have done little to reduce its crime rate. Not reflected in that argument is what the rate for violent crimes would have been had guns been even more plentiful on the streets of the nation's capital. Law enforcement officers across the country who grapple with the realities of crime are some of the fiercest advocates for meaningful gun regulation, including background checks and bans on private ownership of certain types of weapons, such as machine guns, that serve no legitimate purpose outside a military context. We wholeheartedly agree.
The legal question is not as clear-cut, and both sides have strong arguments about how to interpret the 27 words of the Second Amendment: "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." The most direct path for victory for the District would come if the justices conclude that the Constitution protects only a collective right to bear arms. With such a ruling, an individual would have no legal standing to challenge gun control measures and federal and state governments would have free rein to enact restrictions. Before last spring, when the U.S. Court of Appeals for the D.C. Circuit struck down the District's laws after reading the Second Amendment as bestowing an individual right, nine of the federal appeals courts to have considered the question embraced a collective rights approach. Before 2001, when then-Attorney General John D. Ashcroft endorsed an individual right, so did the Justice Department. The argument for an individual right has been gaining legitimacy even outside conservative circles; some liberal legal stalwarts have come to grudgingly accept the notion that the framers of the Constitution meant to protect an individual's right to own a gun. If the justices affirm the individual rights approach, the government then must shoulder the burden of proving that any restriction on that right is justified. Some gun rights advocates argue that the government's burden should be substantial. We strongly disagree.
The Second Amendment, while ensconced in the Bill of Rights among provisions protecting freedom of speech and freedom from unreasonable searches, is different. Words can be offensive; bullets can be lethal. Every right, no matter how precious, is subject to some limits. If the justices recognize an individual right, they can and should allow lawmakers maximum flexibility to enact reasonable regulation. In our view, that flexibility should include the District's law, which is aimed at taking the most dangerous guns off the streets of what was once one of the nation's most dangerous cities. Anything short of this would promote perverse ideological purity over the legitimate interests of lawmakers to protect public safety.
Monday, March 17, 2008; A16
TOMORROW THE Supreme Court will hear oral argument in a case of extraordinary importance involving the constitutionality of the District's gun control program. The justices are being asked to determine whether the Second Amendment recognizes an individual right to bear arms or whether private gun ownership is strictly linked to service in a state militia. The justices' answer could determine whether the District's gun ban stands or falls, and it could have ripple effects throughout the country.
We have long believed that a robust system of firearms laws is essential to the safety and well-being of the millions of people who live, work in and visit the District. Some argue that the District's gun laws -- some of the most restrictive in the nation -- have done little to reduce its crime rate. Not reflected in that argument is what the rate for violent crimes would have been had guns been even more plentiful on the streets of the nation's capital. Law enforcement officers across the country who grapple with the realities of crime are some of the fiercest advocates for meaningful gun regulation, including background checks and bans on private ownership of certain types of weapons, such as machine guns, that serve no legitimate purpose outside a military context. We wholeheartedly agree.
The legal question is not as clear-cut, and both sides have strong arguments about how to interpret the 27 words of the Second Amendment: "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." The most direct path for victory for the District would come if the justices conclude that the Constitution protects only a collective right to bear arms. With such a ruling, an individual would have no legal standing to challenge gun control measures and federal and state governments would have free rein to enact restrictions. Before last spring, when the U.S. Court of Appeals for the D.C. Circuit struck down the District's laws after reading the Second Amendment as bestowing an individual right, nine of the federal appeals courts to have considered the question embraced a collective rights approach. Before 2001, when then-Attorney General John D. Ashcroft endorsed an individual right, so did the Justice Department. The argument for an individual right has been gaining legitimacy even outside conservative circles; some liberal legal stalwarts have come to grudgingly accept the notion that the framers of the Constitution meant to protect an individual's right to own a gun. If the justices affirm the individual rights approach, the government then must shoulder the burden of proving that any restriction on that right is justified. Some gun rights advocates argue that the government's burden should be substantial. We strongly disagree.
The Second Amendment, while ensconced in the Bill of Rights among provisions protecting freedom of speech and freedom from unreasonable searches, is different. Words can be offensive; bullets can be lethal. Every right, no matter how precious, is subject to some limits. If the justices recognize an individual right, they can and should allow lawmakers maximum flexibility to enact reasonable regulation. In our view, that flexibility should include the District's law, which is aimed at taking the most dangerous guns off the streets of what was once one of the nation's most dangerous cities. Anything short of this would promote perverse ideological purity over the legitimate interests of lawmakers to protect public safety.
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.
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.
Sunday, March 16, 2008
D.C.'s Gun Ban Gets Day in Court (Washington Post)
Justices' Decision May Set Precedent In Interpreting the 2nd Amendment
By Robert Barnes
Washington Post Staff Writer
Sunday, March 16, 2008; A01
Despite mountains of scholarly research, enough books to fill a library shelf and decades of political battles about gun control, the Supreme Court will have an opportunity this week that is almost unique for a modern court when it examines whether the District's handgun ban violates the Second Amendment.
The nine justices, none of whom has ever ruled directly on the amendment's meaning, will consider a part of the Bill of Rights that has existed without a definitive interpretation for more than 200 years.
"This may be one of the only cases in our lifetime when the Supreme Court is going to be interpreting the meaning of an important provision of the Constitution unencumbered by precedent,'' said Randy E. Barnett, a constitutional scholar at the Georgetown University Law Center. "And that's why there's so much discussion on the original meaning of the Second Amendment.''
The outcome could roil the 2008 political campaigns, send a national message about what kinds of gun control are constitutional and finally settle the question of whether the 27-word amendment, with its odd structure and antiquated punctuation, provides an individual right to gun ownership or simply pertains to militia service.
"The case has been structured so that they have to confront the threshold question," said Robert A. Levy, the wealthy libertarian lawyer who has spent five years and his own money to bring District of Columbia v. Heller to the Supreme Court. "I think they have to come to grips with that."
The stakes are obviously high for the District, which passed the nation's strictest gun-control law in 1976, just after residents were granted the authority to govern themselves. It virtually bans the private possession of handguns, and requires that rifles and shotguns in the home be kept unloaded and disassembled or outfitted with a trigger lock.
The law's challengers -- security guard Dick Anthony Heller is the named party in the suit -- say the measure has been an abysmal failure at cutting crime or stanching the city's homicide rate, and a success only in depriving the law-abiding of a ready weapon for protection. The District contends that banning handguns is a logical decision in an urban setting, where more guns would result in more killings.
The city's lawyers argue that the Second Amendment does not provide an individual right and that, even if it does, the amendment is not implicated by legislation that concerns only the District of Columbia.
The case could be a revealing test of the court headed by Chief Justice John G. Roberts Jr. Roberts came to the bench saying justices should decide cases as narrowly as possible, but last year he was part of a slim majority that made bold breaks with the court's jurisprudence in cases both recent and old, on issues such as school integration and abortion.
Clues to the justices' interpretations of the Second Amendment are scant and cryptic, and Roberts said during his 2005 confirmation hearings that the last time the court considered the issue -- in 1939 -- it "sidestepped" the fundamental questions.
That is part of the reason that the outcome -- not expected until near the end of the court's term in late June -- will be so intriguing, said Suzanna Sherry, a law professor at Vanderbilt University.
"It is very rare that the justices write on a clean slate," she said. "In some ways, it gives them great freedom."
Levy and lawyers Alan Gura and Clark Neily were able to persuade the U.S. Court of Appeals for the District of Columbia Circuit last year to do what no other federal appeals court had ever done: strike down a local gun-control ordinance on Second Amendment grounds.
The amendment says that "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,'' and all but one of the circuits that had considered the issue previously had interpreted it as providing a gun-ownership right related only to military service.
But Senior Judge Laurence H. Silberman, a conservative icon, wrote for a 2 to 1 panel that the amendment provides an individual right just as other provisions of the Bill of Rights do. And because handguns fall under the definition of "arms," he wrote, the District may not ban them.
The Supreme Court's endorsement of an individual right would be a monumental change in federal jurisprudence, but perhaps not surprising. Even a small but growing group of liberal constitutional scholars -- "against my political instincts," in the words of Harvard law professor Laurence H. Tribe -- have endorsed the individual-right view.
But even fundamental rights are subject to government restrictions, and whether the justices are ready to decide on the reasonableness of the District's ban could be the crucial question of the case.
The city received an unlikely lifeline from the Bush administration, which told the court that the amendment provides an individual right but that the appeals court erred in deciding that the District's ban was automatically unconstitutional.
"If adopted by this court," Solicitor General Paul D. Clement wrote in the government's brief, "such an analysis could cast doubt on the constitutionality of existing federal legislation prohibiting the possession of certain firearms, including machineguns."
Clement said that the District's law may well be unconstitutional, but that the case should be returned to lower courts for "application of a proper standard of review" and to permit "Second Amendment doctrine to develop in an incremental and prudent fashion."
Gun rights supporters were furious about the government's position, and Vice President Cheney went so far as to join a friend-of-the-court brief that specifically rejects the administration's view. Levy said returning the case to lower courts would be a "death knell," and his team has urged the court to apply "strict scrutiny" to any government action that would restrict gun ownership.
Said Gura: "What we want to do is take prohibition off the table."
The case is complicated by the District's secondary argument that the Second Amendment is not implicated by legislation that applies only to the District of Columbia.
The challengers have received a broad array of political support, signs of the strength of the gun rights movement: More than 31 states and a majority of the House and Senate have signed friend-of-the-court briefs.
Among the presidential candidates, Republican Sen. John McCain signed on, while Democratic Sens. Barack Obama and Hillary Rodham Clinton did not. Both Democrats have looked for a middle ground, saying they believe the Second Amendment preserves an individual right, but one that is subject to government restrictions.
That position would seem popular. A Washington Post poll shows that 72 percent of the public believes the Constitution provides an individual right, but respondents were evenly split on whether it is more important to protect the rights of Americans to own guns or to control gun ownership.
Nearly 60 percent said they would support the kind of law in question.
But nationally, it is hard to find many laws as restrictive as the one in the District, partly because of the gun rights lobby's vigilance. More than 40 state constitutions have gun ownership guarantees. Maryland's is one of the few that does not.
As a result, it is difficult to know what gun-control legislation across the country would be at risk even if the Supreme Court upheld the D.C. Circuit's decision.
Levy said the next targets will be handgun laws in Chicago and New York City, although the court has never held that the Second Amendment is applicable to states. And one legal theory is that the provision is a restriction only against the federal government.
Both sides agree that the court's decision could send a powerful message beyond the District.
Tribe, whose support of the individual right is often cited by gun rights supporters, wrote an article in the Wall Street Journal recently that said the District's law could still be upheld and urged the court to decide the case narrowly.
But he acknowledged in an interview that the justices might "jump at the opportunity" to write broadly when they finally have a chance to put their mark "on a part of the Constitution that isn't already paved over with layer upon layer of judicial precedent."
-------------------------------------------------------------------------------------
Polling director Jon Cohen and researcher Madonna Lebling contributed to this report.
By Robert Barnes
Washington Post Staff Writer
Sunday, March 16, 2008; A01
Despite mountains of scholarly research, enough books to fill a library shelf and decades of political battles about gun control, the Supreme Court will have an opportunity this week that is almost unique for a modern court when it examines whether the District's handgun ban violates the Second Amendment.
The nine justices, none of whom has ever ruled directly on the amendment's meaning, will consider a part of the Bill of Rights that has existed without a definitive interpretation for more than 200 years.
"This may be one of the only cases in our lifetime when the Supreme Court is going to be interpreting the meaning of an important provision of the Constitution unencumbered by precedent,'' said Randy E. Barnett, a constitutional scholar at the Georgetown University Law Center. "And that's why there's so much discussion on the original meaning of the Second Amendment.''
The outcome could roil the 2008 political campaigns, send a national message about what kinds of gun control are constitutional and finally settle the question of whether the 27-word amendment, with its odd structure and antiquated punctuation, provides an individual right to gun ownership or simply pertains to militia service.
"The case has been structured so that they have to confront the threshold question," said Robert A. Levy, the wealthy libertarian lawyer who has spent five years and his own money to bring District of Columbia v. Heller to the Supreme Court. "I think they have to come to grips with that."
The stakes are obviously high for the District, which passed the nation's strictest gun-control law in 1976, just after residents were granted the authority to govern themselves. It virtually bans the private possession of handguns, and requires that rifles and shotguns in the home be kept unloaded and disassembled or outfitted with a trigger lock.
The law's challengers -- security guard Dick Anthony Heller is the named party in the suit -- say the measure has been an abysmal failure at cutting crime or stanching the city's homicide rate, and a success only in depriving the law-abiding of a ready weapon for protection. The District contends that banning handguns is a logical decision in an urban setting, where more guns would result in more killings.
The city's lawyers argue that the Second Amendment does not provide an individual right and that, even if it does, the amendment is not implicated by legislation that concerns only the District of Columbia.
The case could be a revealing test of the court headed by Chief Justice John G. Roberts Jr. Roberts came to the bench saying justices should decide cases as narrowly as possible, but last year he was part of a slim majority that made bold breaks with the court's jurisprudence in cases both recent and old, on issues such as school integration and abortion.
Clues to the justices' interpretations of the Second Amendment are scant and cryptic, and Roberts said during his 2005 confirmation hearings that the last time the court considered the issue -- in 1939 -- it "sidestepped" the fundamental questions.
That is part of the reason that the outcome -- not expected until near the end of the court's term in late June -- will be so intriguing, said Suzanna Sherry, a law professor at Vanderbilt University.
"It is very rare that the justices write on a clean slate," she said. "In some ways, it gives them great freedom."
Levy and lawyers Alan Gura and Clark Neily were able to persuade the U.S. Court of Appeals for the District of Columbia Circuit last year to do what no other federal appeals court had ever done: strike down a local gun-control ordinance on Second Amendment grounds.
The amendment says that "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,'' and all but one of the circuits that had considered the issue previously had interpreted it as providing a gun-ownership right related only to military service.
But Senior Judge Laurence H. Silberman, a conservative icon, wrote for a 2 to 1 panel that the amendment provides an individual right just as other provisions of the Bill of Rights do. And because handguns fall under the definition of "arms," he wrote, the District may not ban them.
The Supreme Court's endorsement of an individual right would be a monumental change in federal jurisprudence, but perhaps not surprising. Even a small but growing group of liberal constitutional scholars -- "against my political instincts," in the words of Harvard law professor Laurence H. Tribe -- have endorsed the individual-right view.
But even fundamental rights are subject to government restrictions, and whether the justices are ready to decide on the reasonableness of the District's ban could be the crucial question of the case.
The city received an unlikely lifeline from the Bush administration, which told the court that the amendment provides an individual right but that the appeals court erred in deciding that the District's ban was automatically unconstitutional.
"If adopted by this court," Solicitor General Paul D. Clement wrote in the government's brief, "such an analysis could cast doubt on the constitutionality of existing federal legislation prohibiting the possession of certain firearms, including machineguns."
Clement said that the District's law may well be unconstitutional, but that the case should be returned to lower courts for "application of a proper standard of review" and to permit "Second Amendment doctrine to develop in an incremental and prudent fashion."
Gun rights supporters were furious about the government's position, and Vice President Cheney went so far as to join a friend-of-the-court brief that specifically rejects the administration's view. Levy said returning the case to lower courts would be a "death knell," and his team has urged the court to apply "strict scrutiny" to any government action that would restrict gun ownership.
Said Gura: "What we want to do is take prohibition off the table."
The case is complicated by the District's secondary argument that the Second Amendment is not implicated by legislation that applies only to the District of Columbia.
The challengers have received a broad array of political support, signs of the strength of the gun rights movement: More than 31 states and a majority of the House and Senate have signed friend-of-the-court briefs.
Among the presidential candidates, Republican Sen. John McCain signed on, while Democratic Sens. Barack Obama and Hillary Rodham Clinton did not. Both Democrats have looked for a middle ground, saying they believe the Second Amendment preserves an individual right, but one that is subject to government restrictions.
That position would seem popular. A Washington Post poll shows that 72 percent of the public believes the Constitution provides an individual right, but respondents were evenly split on whether it is more important to protect the rights of Americans to own guns or to control gun ownership.
Nearly 60 percent said they would support the kind of law in question.
But nationally, it is hard to find many laws as restrictive as the one in the District, partly because of the gun rights lobby's vigilance. More than 40 state constitutions have gun ownership guarantees. Maryland's is one of the few that does not.
As a result, it is difficult to know what gun-control legislation across the country would be at risk even if the Supreme Court upheld the D.C. Circuit's decision.
Levy said the next targets will be handgun laws in Chicago and New York City, although the court has never held that the Second Amendment is applicable to states. And one legal theory is that the provision is a restriction only against the federal government.
Both sides agree that the court's decision could send a powerful message beyond the District.
Tribe, whose support of the individual right is often cited by gun rights supporters, wrote an article in the Wall Street Journal recently that said the District's law could still be upheld and urged the court to decide the case narrowly.
But he acknowledged in an interview that the justices might "jump at the opportunity" to write broadly when they finally have a chance to put their mark "on a part of the Constitution that isn't already paved over with layer upon layer of judicial precedent."
-------------------------------------------------------------------------------------
Polling director Jon Cohen and researcher Madonna Lebling contributed to this report.
Thursday, March 13, 2008
Possible Explanation Of DOJ's Brief In The DC Gun Case
Gun Battle at the White House?
By Robert D. Novak
Thursday, March 13, 2008; A17 (Washington Post)
In preparation for oral arguments Tuesday on the extent of gun rights guaranteed by the 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 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's 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, which enjoy much wider agreement than do opposition to abortion or gay marriage. Promises in two presidential campaigns are being abandoned, and Bush finds himself to the left of even Democratic presidential candidate Sen. Barack Obama.
The 1976 D.C. statute prohibiting ownership of all functional firearms was called unconstitutional a year ago in an opinion by Senior Judge Laurence Silberman, a conservative who has served on the U.S. Court of Appeals for the D.C. Circuit for 22 years. It was assumed that Bush would fight 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 federal gun control laws such as the bar on owning machine guns. The president could have ordered a revised brief by Clement.
But facing congressional Democratic pressure to keep his 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. Although this unprecedented vice presidential intervention was widely interpreted as a dramatic breakaway from the White House, longtime associates could not believe that Cheney would defy the president. In fact, he did not. Bush approved what Cheney did in his constitutional 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 that 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 as being against the District's gun prohibition. So are 31 states, with only five (New York, Massachusetts, Maryland, New Jersey and Hawaii) in support. Sen. Barack Obama has weighed in against the D.C. law, asserting that the Constitution confers an individual right to bear arms -- not just collective authority to form militias.
This popular support for gun rights is not reflected by an advantage in the oral arguments to take place Tuesday. 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 appearance before the high court, does not have the confidence of gun-ownership advocates (who tried to replace him with former solicitor general Ted Olson).
The cause needs help from Clement during his 15-minute oral argument, but it won't get it 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 -- which would be an odd ending to bizarre behavior by the Justice Department.
© 2008 Creators Syndicate Inc.
By Robert D. Novak
Thursday, March 13, 2008; A17 (Washington Post)
In preparation for oral arguments Tuesday on the extent of gun rights guaranteed by the 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 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's 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, which enjoy much wider agreement than do opposition to abortion or gay marriage. Promises in two presidential campaigns are being abandoned, and Bush finds himself to the left of even Democratic presidential candidate Sen. Barack Obama.
The 1976 D.C. statute prohibiting ownership of all functional firearms was called unconstitutional a year ago in an opinion by Senior Judge Laurence Silberman, a conservative who has served on the U.S. Court of Appeals for the D.C. Circuit for 22 years. It was assumed that Bush would fight 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 federal gun control laws such as the bar on owning machine guns. The president could have ordered a revised brief by Clement.
But facing congressional Democratic pressure to keep his 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. Although this unprecedented vice presidential intervention was widely interpreted as a dramatic breakaway from the White House, longtime associates could not believe that Cheney would defy the president. In fact, he did not. Bush approved what Cheney did in his constitutional 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 that 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 as being against the District's gun prohibition. So are 31 states, with only five (New York, Massachusetts, Maryland, New Jersey and Hawaii) in support. Sen. Barack Obama has weighed in against the D.C. law, asserting that the Constitution confers an individual right to bear arms -- not just collective authority to form militias.
This popular support for gun rights is not reflected by an advantage in the oral arguments to take place Tuesday. 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 appearance before the high court, does not have the confidence of gun-ownership advocates (who tried to replace him with former solicitor general Ted Olson).
The cause needs help from Clement during his 15-minute oral argument, but it won't get it 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 -- which would be an odd ending to bizarre behavior by the Justice Department.
© 2008 Creators Syndicate Inc.
Friday, March 7, 2008
Briefs filed in District of Columbia v. Heller
To see the merit briefs and all the amicus briefs filed in this case, please go here, and scroll down to "District of Columbia v. Heller".
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