The Strange Conflict Over Gun Rights in Bush Camp

D.C.'s Gun Ban Gets Day in Court
Justices' Decision May Set Precedent In Interpreting the 2nd Amendment
By Robert Barnes,Washington Post March 16, 2008 (Excerpt)

“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.”

Earlier this year I published a post (What Is Bush Thinking? Ask Fred on 2nd Amend. Rights) that revealed that the Justice Department of the Bush Administration had applied a “friend of the court” request to the Washington, DC gun control case that had been taken up by the Supreme Court. For years, DC had banned gun ownership (leading to its position as the murder capitol of the USA), but a federal appeals court finally threw out the ban. The case was appealed by DC to the Supreme Court, and gun owners have been hoping and expecting that our 2nd Amendment rights would finally be clarified and affirmed for all time. The request by the Justice Department so muddied the waters on this issue that supporters of President Bush have been both perplexed and angered by the move. Now comes this story of conflict between Bush and his own Attorney General. What is going on?

The Administration's Gun Battle
By Robert Novak, March 13, 2008 RealClearPolitics

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.