The other day I argued that the Bush Administration’s brief in the gun rights case was correct, and should not distress Second Amendment supporters. I said: “All rights have some limits. What those limits are is the real question.”
Jan Crawford Greenburg and Xrlq have both weighed in, and their position is very similar to mine. Jan’s post makes the case well. Here’s a sample:
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.
Jan goes on to explain that Clement’s position adopting a balancing test may be a good strategic move for those wanting the Court to accept the theory that the Second Amendment creates an individual right:
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.
Well, it’s hard to argue with that last part. My only area of disagreement here is that I fully anticipate that Clement’s standard will lead to a flood of cases challenging the constitutionality of gun laws, and the courts will be bogged down. But I think that’s all inevitable given the reality of this case.
Xrlq basically agrees with Jan and me:
[F]rankly, I’m having a hard time getting too worked up over the U.S. Government’s brief on Heller. Yes, I would have preferred to see the Administration call for strict rather than heightened scrutiny. No, I don’t think it makes a tinker’s damn of a difference. DC’s ban would easily be struck down under either test. Rather than worry about that relatively minor detail, worry about the big picture: will the Supreme Court affirm the individual right to bear arms at all? If it does, thank the Bush Administration for appointing a Solicitor General who argued eloquently in favor of it, and for appointing t[w]o of the Justices who helped to make it happen.