Posted on 01/22/2008 10:19:43 AM PST by neverdem
Every Supreme Court term has at least one “blockbuster” case that send shockwaves not only through the legal community, but also through the general public. Cases like the Kelo decision, allowing governments to convert your house into a shopping mall (provided it isn’t too nice of a house), the first and second Carhart decisions, denying and then allowing restriction of partial birth abortion, or the recent Parents Involved case restricting the ability of school districts to use race in their admission processes, shape the public consciousness about the Court and its actions.
Although there are several important cases this term, none will have the effect on the public’s mind that the Supreme Court’s decision in District of Columbia v. Heller will have. In that case, the Supreme Court will finally take up one of the great, undecided matters of constitutional law: Whether the Second Amendment guarantees a personal right to bear arms. Whatever the Court decides, it will have implications on electoral politics for the next generation. Unfortunately, the Bush Administration has ignored an opportunity to push the Court toward the right on the issue, and transform the politics of the 2008 elections in the process.
A key step in the development of Second Amendment jurisprudence was the Bush Administration’s decision to adopt the “individual rights” theory of the Second Amendment. This theory holds that the Supreme Court’s Miller decision was, in essence, incorrect, and that the right to keep in bear arms means what it says -- that an individual has a right to own guns. The Department of Justice in 2001 reversed the Clinton Administration’s previous position on the right to bear arms, setting off a firestorm of criticism. Yet for the past seven years, the Administration has stood its ground and consistently instructed its United States Attorneys to argue for the individual right to bear arms, if they could given the law of their Circuit.
So it came as an absolute shock to many supporters of an individual right to keep and bear arms when the Solicitor General filed a brief in the Heller matter opposing the plaintiffs’ claims. This remarkable brief brings back memories of the Administration’s position in the Grutter and Gratz cases, where the Administration argued that, while the schools’ affirmative action policies were unconstitutional, the rationale behind them was not.
The Solicitor General’s brief in Heller similarly tries to split the baby. It argues, strenuously, that the Constitution does protect and individual’s right to bear arms. It also argues that, like other rights in the Bill of Rights, the right to keep and bear arms is not unlimited. It then suggests a more restrictive test for the right than that used by the Court of Appeals: that a court should consider the practical impact of the regulation on the right to bear arms and the government’s interest in the enforcement of the regulation, rather than the Court of Appeals’ more categorical approach to regulations of “Arms.” In other words, it argues for a kind of intermediate scrutiny. The Solicitor General suggests that the Court adopt a different test than that used by the Court of Appeals, and then remand the case for further review.
Which raises the question: What the heck was the Bush Administration thinking? For decades, a critical component of the Republican coalition has been working class gun owners who are bothered by the Democrats’ embrace of gun control. Republicans actually seem to have won that battle, with Democrats backing off of gun control legislation in the recent Congress. Why after enduring so much hostile press would the Bush Administration sell out the NRA at this critical juncture? And why make the reversal in a difficult election year, when the support of gun control opponents will be so critical to Republican fortunes?
There are two potential answers. The generous answer lies in the composition of the Court. It is thought that the four “conservative” Justices -- Thomas, Scalia, Roberts, and Alito -- are sympathetic to the individual right to bear arms. The four “liberal” Justices -- Stevens, Ginsburg, Breyer and Souter -- may be more hostile. This leaves Justice Kennedy as the swing vote. Kennedy is notoriously difficult to predict, especially on high-profile “social issues.” It is also true that within the next few years, Justices Stevens and Ginsburg will be replaced, possibly with a Republican President. So the Solicitor General may be gambling that Justice Kennedy will be easier to persuade with a lower standard, or that if the plaintiffs get a remand, the Court may be more conservative when the case comes back up, and more likely to win in the long run.
The less generous answer lies in the reality of the Bush Administration. Contrary to the caricatures painted by liberals, there are precious few issues that the Administration has not sold the Right out on. No Child Left Behind, the prescription drug benefit, monstrous budget deficits, McCain-Feingold, Patient’s Bill of Rights . . . all of these issues cross the gamut of modern politics, and all of them are issues where the Bush Administration’s Rovian plotting has placed it at loggerheads with standard conservatism. Even on judges, where the Administration usually wins plaudits, conservatives forget Harriet Miers, and forget that two of Bush’s first ten Court of Appeals appointments were Clinton appointees. Is it really that hard to believe that the Administration would lurch to the left on the issue of guns?
Regardless, this issue is in the Supreme Court of the United States. Its decisions are not easily overruled once they are handed down. Even if one gives the Administration the benefit of the doubt, it has made an awful error here by siding against the District’s citizens. The job of a conservative administration is to attempt to persuade the Court to adopt conservative views, not to attempt to play politics or split the baby. It has foregone an opportunity to write a brief that could persuade the Justices to adopt a view of the Second Amendment that assigned scrutiny commensurate with those of other guarantees of the Bill of Rights. Moreover, in a high stakes election, which is likely to be a tough one for the Republican, the Administration has risked alienating a substantial portion of the Republican base, who are understandably incensed with the Administration, and will be apoplectic if the Court does not affirm the Court of Appeals.
The Administration seems to be playing a game of high stakes poker with an incendiary issue in an election year. One can only hope it does not get us all burned.
Shocking. Unfortunately Fred is the only candidate left who is right on guns. Of course that might not last.
i thought huck was good on guns as well?
you’re kidding, right?
Huckabee and Dr. Paul get some things right besides the Second Amendment too, but they are both out to lunch on foreign affairs. Say a prayer for Fred!
Some folks better hide some things...
—Nixon’s philosophy—”—run as far to the right as you must to get elected, then govern as far to the left as you can”—or words to that effect—
If it’s time to hide them, then it is probably time ti dig ‘em up and put ‘em to use.
Perhaps if The Bush family had to wait 20-30 minutes for a Secret Service agent to take down someone threatening to harm them, they’d see the light.....
Also, I’ll never forget some FReeper saying that he’s glad we have the 2nd Ammendment. To a Socilist/Marxist regime, the Constitution is a non-issue, something to be either suspended or ignored, just as they are doing now.
You’d better brace yourselves, this ride is going to be rough and not for the weak at heart.
I have been thinking a lot about this myself, and I don't like the answer I come up with, which is that this White House has gone from weak on the Second Amendment to just wrong on the Second Amendment. There's been no repudiation of this Solicitor General's brief by anyone in the executive branch or the leadership in the Republican Party.
Even in the hustings where you would expect to see at least some lip service by politicians courting the Second Amendment vote, I have seen condemnation of this brief only by Senator Thompson.
It's only a guess, but I'm thinking it was no deeper than a government functionary scared to death that some of his power might go away. It's taken over a century to get around the Second Amendment to the degree that the federal government already has - from an authoritarian point of view that's a lot of work that might be wasted.
That sounds rather cynical and I'm sure no one who considers himself a conservative would care to put it quite that bluntly. But if there's anything more involved it's a little hard to see.
The Constitution is not an issue for GOPers either. The First Amendment is not stopping Greesly from hauling every evangelical TV minister in front of Congress for a grilling.
Then why were so many on the Right in favor of this issue going before the U.S. Supreme Court?
Seems to me that there's a whole bunch of Monday-morning quarterbacking going on in the conservative press.
You've seen tho old thread titled "The Art of the Cache", right? It's all about "insurance".
Paul was great on the 2nd amendment.
I never can quite grasp what the heck the Bushies are thinking, if Miller could be redefined to absolutely assure the RTKBA, then the “legacy” would be secured at least on some level.
But alas, even on this, the Fairbairn meets the small of the back right below the floating ribs...
Et tu Bush?
BTW McCAin is simply terrible on the 2nd amendment, if it came down to sending money to McCain or to a local 2nd amendment friendly candidate...adios pendajo McCain...
no, i’ve heard he was pretty good, but i haven’t paid much attention to him. i know he has a dozen other positions i can’t stand, but since he’s still up in the polls i probably should start looking at him and finding out how badly i don’t want him to win.
Hrmm.... I remember that one. I still have a bad feeling that we are going to land “jam side down” come March and that things are going to get bad VERY quickly. There won’t be time to remember where all you’ve got stuff squirreled at.
Great reply!
Many of those reptilian widow-swindling mountebanks are living a tax-exempt life of luxury that ought to sicken any real Christian. I want to see them harshly punished if they are stealing from the taxpayers.
But I also want the same scrutiny applied to the left-wing non-profit queens, e.g. Jesse Jackson.
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