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Battle of the Attorneys General in DC v. Heller:

In January, former Attorneys General Janet Reno and Nicholas Katzenbach, joined by 11 former important US DOJ lawyers filed a brief in support of the DC handgun ban. The brief argues that from the 1930s until 2001, the US Department of Justice had the position that the Second Amendment does not guarantee an individual right. The brief argues that the DOJ supported the "collective right" theory, and appears unaware that this theory has been abandoned even by gun control groups and their academic allies. (The replacement is "narrow individual right," a right which applies only to persons actually on duty in a state militia.)

Today a counter-brief was filed on behalf of two former Attorneys General (Edwin Meese and William Barr), two former Acting Attorneys General (Stuart Gerson, under Clinton; and Robert Bork, under Nixon), and several other former high-ranking DOJ lawyers.

The brief begins by describing three different cases (under Presidents Andrew Johnson, Ulysses Grant, and Benjamin Harrison) in which the the US DOJ took the litigation position that the Second Amendment is a broad individual right. Next, the brief quotes FDR's AG Homer Cummings, testifying in support of the proposed National Firearms Act of 1934, who explained that the Act was not a violation of the Second Amendment because it taxed and registered machine guns and short shotguns, but did not ban them. The Reno brief had attempted to claim that Cummings was discussing the scope of congressional Article I power, but omitted the fact that Cummings was answering a Representative's question about the NFA "escaped" from the "provision in our Constitution denying the privilege to the legislature to take away the right to carry arms."

There then follows an intricate analysis of positions in DOJ briefs in future years, Office of Legal Counsel memoranda, and Presidential bill-signings. The argument is that, contrary to the Reno brief's claims, the Executive Branch position was not consistent with the position of Attorney General Katzenbach that there is no individual right to arms.

Part II responds to arguments raised by the Reno brief, and by the current Solicitor General, that the rule announced by the D.C. Circuit, invalidating the handgun ban, would threaten federal laws against possession of guns by convicted felons, or against machine guns. Part III urges the Court to confine its ruling to DC's ban on handguns in the home, rather than addressing restrictions on uncommon guns.

Both of the former DOJ briefs might be viewed in a broader context. One of the officials in the Reno brief is former Solicitor General Seth P. Waxman. On Aug. 22, 2000, Waxman wrote a letter affirming the position which the DOJ had taken in the Fifth Circuit's Emerson case, that the Second Amendment is no bar to the federal government taking away people's guns. Indeed, at oral argument before the Fifth Circuit, the DOJ position had been the Second Amendment does not even prevent the disarmament of an on-duty militiaman. Waxman became the first Solicitor General in history to have his words reprinted on presidential campaign billboards. Thanks in part to the NRA publicizing Waxman's words, George Bush won narrow victories, and thus the election, in strongly pro-gun states such as West Virginia. The results of the 2000 election represent "a constitutional moment" repudiating the Waxman/Reno view of the 2d Amendment--just as an overly restrictive view of the 1st Amendment was repudiated by the public in the election of 1800 (which also was very close, and was contested for months after the polls closed). Today, even Senator Hillary Clinton has moved away from the Reno/Waxman position; in the final Nevada debate, she stated: "You know, I believe in the Second Amendment. People have a right to bear arms."

Sean M:
Given that Robert Bork became Acting Attorney General due to the Midnight Massacre, I'm not sure that's quite the distinction he'd want attached to him.
2.11.2008 11:17pm
OrinKerr:
The results of the 2000 election represent "a constitutional moment" repudiating the Waxman/Reno view of the 2d Amendment-







David, I realize that you have passionate personal views about the Second Amendment, but can you explain how this could be true? How many Americans were familiar with the Waxman statements at oral argument in the Fifth Circuit? I thought the "constitutional moment" idea was based on the majority of polity rejecting a view of the Constitution, not a group of swing voters in a few particular states. Maybe I was just missing something, but I don't recall the Second Amendment being one of the major issues of the 2000 Presidential campaign.





[DK: Part of the Waxman letter was quoted and put on billboards, so it was seen by lots of people. The NRA and the National Shooting Sports Foundation worked very hard to familiarize gun owners with the Clinton/Gore/Reno record on gun prohibition. Clinton's autobiography "My Life" says that the gun issue cost Gore the election. Clinton made a similar statement in December 2000.



If you want to define "constitutional moment" precisely on Ackerman's 4-part definition, then the 2000 election wouldn't count, because the branch that was attempting radical change (the Clinton/Gore/Reno/Waxman effort to nullify the Second Amendment) was repudiated. The same point could be said for the John Adams administration's efforts to radically expand the national government's control over political speech.

If we use Ackerman's more general definition, of a constitutional moment as a time when the people exercise "considered judgements regarding the rights of citizens and the permanent interests of the community," then the 2000 election fits. Clinton/Gore had worked very hard, and successfully, to make gun control one of the major national political issues throughout their administration. This played an enormous role in the 1994 election, after which Clinton opined that "the NRA is the reason" that the Republicans took control of Congress. The strategy was tried again after Columbine, with a large, coordinated effort to make gun control a central issue in the 2000 election.

But by August/September of that year, it became clear that the gun issue was devastating for Gore, particularly with blue-collar voters. So Gore did his best in the remaining weeks before the election to minimize the issue, but he was unsuccessful.

Did the 2000 "constitutional moment" affect constitutional interpretation? Certainly yes. Not only did it lead directly to a new Attorney General publishing a detailed memo affirming the individual right, it led to a mass retreat, even by gun control supporters, from the anti-individual right position articulated by Waxman. That position is now anathema in American politics--as shown by the enormous disparity of elected officials on amicus briefs: pro-rights has 250 U.S. Reps., 55 Senators, and 31 State Attorneys General. Anti-rights has 18 Reps. (not one of them from a competitive district), zero Senators, and 5 Attorneys General.

And as my post noted, Mrs. Clinton herself no longer supports the Second Amendment legal policy of the Clinton administration. The "collective right" view has gone from being the conventional wisdom of the executive branch in 2000 to something that has only a tiny, dwindling faction of die-hard defenders, at least among people who have to face the constitutional judgement of the American voters.]
2.11.2008 11:26pm
OrinKerr:
Oops -- Make that the Waxman letter, not the Waxman statements at oral argument.
2.11.2008 11:27pm
federal farmer (www):
I think this Amicus, Respondent, and other Amici are committing an understandable but sad sin of tortured logic in order to keep machine guns out of the picture.

To claim they are "uncommon" because so few reside in civilian arms is almost an outright lie. I bet you they'd be very common were it not incredibly difficult to "keep" them. Is it logical to say that the law restricting them greatly is constitutional due to its having successfully restricted them?

I thought tortured logic is what they engage in...not us.

Wouldn't it suffice to say that machine guns are not at issue here and should be left to a future case? Let someone else spend 4 years getting a machine gun suit up to SCOTUS!
2.11.2008 11:31pm
Sam Draper (mail):
I thought Bork supported the "collective right" interpretation of the second amendment.


[DK: He used too. A lot of people have changed their minds after studying the scholarship. In that regard (only) he's similar to Larry Tribe, Sanford Levinson, Dan Polsby, Scot Powe, et al.]
2.11.2008 11:41pm
juststopingby:
"The brief argues that from the 1930s until 2001, the US Department of Justice had the position that the Second Amendment does not guarantee an individual right."

But what does the Constitution say?

Yes, I know that academics at Americas prestigious law schools like to say that the 2nd amendment, like all of the constitution, cannot be read "textually" and that the meaning of the words therein are far more complicated than what ordinary people would understand. You know, that whole line of scholarship that asks the ridiculous question "what does the word 'people' mean in the Constitution?"

I also know that academics greatly overvalue their wisdom and fail to grasp the fact the simplest interpretation is often the correct one.

But here's a question I have (confessing my ignorance about the 2nd amendment):

What was the practice of People regarding this right during the early years of our country? If people freely carried arms then, well, the meaning is clear (unless you buy into that whole living document BS which essentially translates into the Constitution means nothing and is ripe for pomobabble.
2.12.2008 12:06am
therut:
Yes ,the Institute of Justice Brief is spot on about incorporation. But anyone including a non-lawyer like me who has spent one hour reading about the 14th amendment has known this for years. Oh the wicked web we weave when we practice to deceive. The TRUTH will eventually always win. It may take time but it will win. It has to or the USSC is outlaw and our Constitution is worthless. Too many citizens know the truth. I say the USSC should let the truth set them and us FREE.
2.12.2008 12:41am
Millenial Klingon (mail):
This brief gives a good background on the meaning of Miller, the historical position of the Executive branch, including the perspectives of the White House counsel, the AG, the SG, and the OLC, and shows how Reno's public positions as AG and the content here of her brief are ahistorical, flimsy, and wrong. The Court would be making a mistake in adopting her now repudiated views: repudiated by subsequent Executive branch officials, including the SG's office, and repudiated in a national election for the Chief Executive by the American people.
2.12.2008 12:42am
therut:
Everytime I read AG Cummings snide remark I would like to dig him up and slap him silly. I find it offensive. It is pure raw misuse of power. It is right up there with fraud on the people. Yuck. I just can never get over it.
2.12.2008 12:59am
Elliot Reed (mail):
DK: "Clinton's autobiography 'My Life' says that the gun issue cost Gore the election."

Every issue that convinced a few people to vote for Bush rather than Gore cost Gore the election. Bush's margin of victory in Florida was 537 out of nearly six million votes cast. Hence everything that pushed 0.0045% of the vote from Gore to Bush was decisive. I haven't read Clinton's book but the claim you're attributing to him is trivial.

The idea that the 2000 election represented an Ackerman-style "constitutional moment" opposed to gun control is particularly hard to defend when you consider that Bush wasn't even able to get a plurality.
2.12.2008 1:52am
John Herbison (mail):
The results of the 2000 presidential election do indeed "represent 'a constitutional moment'"; however, it had nothing to do with gun rights. The significance of that election result is that where five members of the Supreme Court are willing to abandon their role as jurists and instead act as wardheelers, nothing else in law or jurisprudence matters.

If only Justice Scalia had hunted with Dick Cheney sooner and more frequently!
2.12.2008 2:16am
Kolohe:
Nothing to do with your main point but:

While I agree that stuff like the Alien and Sedition acts caused Adams to lose the election to Jefferson, the reason for the 1800 overtime (rules quirk that was fixed by the twelfth amendment) is completely different from the 2000 overtime (a genuine case of the coin landing on its edge)
2.12.2008 3:23am
Temp Guest (mail):
Orin:


I don't recall the Second Amendment being one of the major issues of the 2000 Presidential campaign.



As a favorite son and the scion of a popular political dynasty, Al Gore should have carried Tennessee. He didn't because he reneged in his promise to the citizens of that state that the Clinton-Gore presidency would respect 2nd amendment rights. Instead the Clintons and Gore took every opportunity to appoint anti-gunners to significant positions in, e.g., the Justice Department, and to pass anti-gun-rights legislation. If Gore had taken Tennessee he would have won the election.

John Herbison:

Consider the role of the Florida Supreme Court in voiding black letter law and granting undue weight to their idiosyncratic and strained interpretation of one subordinate clause in the preamble to the Florida constitution. This was a violation of Article II of the US constitutrion which grants solely to state legislatures (not state courts) the power to determine how electors are chosen. Now MOVE ON!
2.12.2008 8:25am
Temp Guest (mail):
Orin:


I don't recall the Second Amendment being one of the major issues of the 2000 Presidential campaign.



As a favorite son and the scion of a popular political dynasty, Al Gore should have carried Tennessee. He didn't because he reneged in his promise to the citizens of that state that the Clinton-Gore presidency would respect 2nd amendment rights. Instead the Clintons and Gore took every opportunity to appoint anti-gunners to significant positions in, e.g., the Justice Department, and to pass anti-gun-rights legislation. If Gore had taken Tennessee he would have won the election.

John Herbison:

Consider the role of the Florida Supreme Court in voiding black letter law and granting undue weight to their idiosyncratic and strained interpretation of one subordinate clause in the preamble to the Florida constitution. This was a violation of Article II of the US constitutrion which grants solely to state legislatures (not state courts) the power to determine how electors are chosen. Now MOVE ON!
2.12.2008 8:25am
Tony Tutins (mail):
Re Gore: In the 90s, law-abiding gun owners cringed every time some sociopath with a grudge massacred a bunch of innocent people because they knew laws restricting their own rights were sure to follow. In the wake of the Columbine atrocity, Al Gore inserted himself into the gun control controversy by voting to break a tie in the Senate.

Then, when Al Gore ran for President, NRA Vice President and Iowa Republican Party head Kayne Robinson boasted that with Bush, "we'll have . . . a president where we work out of their office." Robinson added that the NRA enjoys "unbelievably friendly relations" with the Texas governor. He also described 2000 as "a critical election" in which Bush's success would ensure "a Supreme Court that will back us to the hilt."

Enough Democratic hunters and shooters remembered the peril of letting Gore vote on gun control, and voted for W., relying on the promises of Kayne Robinson.
2.12.2008 12:38pm
wuzzagrunt (mail):
DK wrote:

The "collective right" view has gone from being the conventional wisdom of the executive branch in 2000 to something that has only a tiny, dwindling faction of die-hard defenders, at least among people who have to face the constitutional judgement of the American voters.

Has anyone even seen Sen. Charles Schumer since the 2000 election? It used to be as predictable as the sunrise that Schumer would be standing in front of the TV cameras, in the aftermath of any significant carnage committed with guns--sometimes before the victims had bled out. Knife attacks, arson, &etc. never got his juices flowing for some reason. The "Beltway Sniper" rampage didn't even bring Chuckie out of hiding. That, right there, is all the hint I need to see that the "collective right" view has been effectively marginalized. The people who promote that (mis)understanding of the 2nd Am., look increasingly like a cult.
2.13.2008 4:02pm