By Robert Barnes
Washington Post Staff Writer
Sunday, January 20, 2008
The Bush administration's position in the case before the Supreme Court on the constitutionality of the District of Columbia's ban on handguns has created an unexpected and serious backlash in conservative circles, disappointing gun enthusiasts and creating implications for the presidential campaign.
The government's brief, filed by U.S. Solicitor General Paul D. Clement just hours before the court's deadline Jan. 11, endorses the view that the Second Amendment conveys an individual right to gun ownership, a finding long sought by gun rights activists.
But it also said an appeals court used the wrong standard when it struck down the District's ban on private handgun ownership, and it urged the Supreme Court to return the case to the lower court for review.
If the justices accept that advice when they hear the case in the spring, it could mean additional years of litigation over the controversial Second Amendment and could undo a ruling that was a seminal victory for gun rights enthusiasts.
Some were livid. One conservative Web site said the administration had "blundered in catastrophic fashion," and another turned Clement, usually a pinup for conservative legal scholars, into a digital dartboard. Rep. Eric Cantor (Va.), the Republicans' chief deputy whip, called the brief "just outrageous," and Republican presidential candidate and former senator Fred D. Thompson (Tenn.) accused the Justice Department of "overlawyering" the issue.
David B. Kopel, an associate policy analyst at the libertarian Cato Institute, said that President Bush was elected in part because of the passion of gun rights activists and that "the citizen activists would never have spent all those hours volunteering for a candidate whose position on the constitutionality of a handgun ban was 'maybe.' "
On the other side, Sanford Levinson, a liberal constitutional scholar at the University of Texas who believes that the Second Amendment protects individual rights, called the administration's position "a gift to the Democratic Party" and urged his party's presidential candidates to embrace it.
The view that the amendment guarantees gun ownership subject to reasonable government restrictions is one that most voters would endorse, Levinson said. In a debate last week in Nevada, all three major Democratic candidates pledged their fealty to the Second Amendment -- "People have a right to bear arms," Sen. Hillary Rodham Clinton (N.Y.) said -- although none mentioned the District's handgun ban.
That the Bush Justice Department has staked out a position on the Second Amendment that Democrats could be comfortable with is too much for gun enthusiasts, Kopel said.
More neutral observers say the controversy over the Justice Department's view that the case should be sent back for additional review obscures the brief's full-throated support for the proposition that the Second Amendment provides for an individual right for gun ownership. It is the central issue in the case and a question that the court has never squarely addressed.
The D.C. appeals court became the first in the nation to strike down a gun control ordinance based on an individual rights view. All the other appeals courts that had reviewed the question, save one, said the amendment provides only a "collective" or civic right to gun ownership, related to its reference to militias.
Orin Kerr, a George Washington University law professor who closely follows the court, said the significance of Clement's argument becomes clearer when compared with the friend-of-the-court brief filed by former attorney general Janet Reno and other past Justice officials.
"The Department prosecutes thousands of defendants for firearms violations every year," the brief said. "In opposing Second Amendment challenges to those prosecutions, the government contended for more than 60 years that the Second Amendment did not protect an individual right to keep and bear arms for purposes unrelated to participation in a well-regulated militia."
Soon after Bush took office, then-Attorney General John D. Ashcroft changed the department's official view to recognize individual rights. But the department until now had not faced a situation in which an appeals court used such a right to strike a gun-control measure.
That is when, Levinson speculates, the "sober second thoughts of practicing lawyers" took over.
Clement plays dual roles -- to represent the position of the Bush administration before the court but also to defend the laws passed by Congress. His brief said federal gun-control laws could be endangered by the decision that struck D.C.'s law.
The appeals court decision, written by one of the leaders of the conservative legal movement, Senior Circuit Judge Laurence H. Silberman, said that "arms" referred to in the amendment include handguns, and thus the District's ban on private possession of them is unconstitutional.
But Clement's brief said such a "categorical" rule is too broad.
"If adopted by this court, such an analysis could cast doubt on the constitutionality of existing federal legislation prohibiting the possession of certain firearms, including machineguns," he wrote.
Clement said the District's ban on handguns, the strictest in the country, may well be unconstitutional. But it should be subjected to "heightened judicial scrutiny," rather than categorically dismissed, he said.
Those who favor the appeals court's decision said the Supreme Court could rule that the District's ban fails even that test, rather than following Clement's prescription of sending it back to lower courts. Whatever decision reached there would probably result in another trip back to the justices.
But Clement said the court's finding of an individual right and an appropriate standard of review "will be a substantial constitutional undertaking." There would be "virtue," his brief said, in sending the case back to the lower courts and "permitting Second Amendment doctrine to develop in an incremental and prudent fashion."
The court is free to ignore the solicitor general's advice, but his opinion usually carries weight with the justices.