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Administration Split on Gun Rights?

Robert Novak has an interesting column this morning on divisions within the Bush Administration over the Second Amendment and D.C. v. Heller.

In preparation for oral arguments Tuesday on the extent of gun rights guaranteed by the 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 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's 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. . . .

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 federal gun control laws such as the bar on owning machine guns. The president could have ordered a revised brief by Clement.

But facing congressional Democratic pressure to keep his hands off the Justice Department, Bush did not act.

The column provocatively suggests that Clement may alter the DoJ's position slightly at oral argument next week. If so, that would be a very interesting development.

UPDATE: Marty Lederman is skeptical of the Novak account.

UPDATE: FWIW, I have received several e-mails from current and former administration officials who are skeptical with key aspects of Novak's account. While these individuals do not have firsthand knowledge of how these specific decisions were made, they find it highly implausible that SG Clement did not clear the contours of his brief with the White House Counsel's office.

Related Posts (on one page):

  1. Second Amendment Sniping:
  2. Second Amendment Sniping:
  3. Administration Split on Gun Rights?
DanG:
Very interesting. So much for the unitary executive.
3.13.2008 11:05am
Houston Lawyer:
A bit like the intelligence estimate on Iran's nuclear bomb project. People often forget that a large part of the government is full of lifers who disagree with whatever administration is currently in power. Now the career bureaucrats usually disagree more with Republicans than Democrats, but that is not always the case. It would be interesting to see the Federal Government change its position at oral argument. Maybe even Justice Thomas could be coaxed to ask a question about that.
3.13.2008 11:05am
advisory opinion:
Clement is just doing his job man. As for Cheney . . . he's not part of the executive.
3.13.2008 11:26am
pireader (mail):
Professor Adler -

Your excerpt from Robert Novak's column skipped over a few lines that provide both the most-logical explanation for what's going on, and a nice example of Novak shilling for his sources (as he has for decades).

Clement has tried to explain his course to the White House by claiming that 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 ...


There have been a stream of stories over the past few years that Clement tells the Administration's ideologues SCOTUS won't buy whatever they're selling; and they don't like it. Here's one more.

More subtly, there's the story that Novak didn't write, for fear of offending his sources, about the Administration working both sides of the street. Over here, Clement's brief going for what they really think they can get. Over there, Cheney tossing red meat to the faithful. (Served with a side order of paranoia about left-wing career bureaucrats who've lured yet another conservative senior official into error.)

And Bush above it all. "If only the Czar knew".

All that in 700 words ... it's a pleasure to watch the old pro at work.
3.13.2008 11:35am
Brett Bellmore:
I'm quite skeptical of the notion that Bush is not in agreement with the AG on this. Remember, Bush ran in 2000 as in favor of expanded gun control, not urging that it be rolled back. Politics may require that he publicly support the individual rights view, but his policy preferences clearly are not consistent with it.

Ashcroft, chosen as a sop to conservatives, was the AG in conflict with his President, not Clement, who is the sort of AG Bush has really wanted all along.
3.13.2008 11:37am
whit:
brett, i gotta agree

1) bush is not a conservative
2) bush sux on gun rights, and had sucked long before he ran for prez
3.13.2008 11:45am
Kevin P. (mail):

pireader:
There have been a stream of stories over the past few years that Clement tells the Administration's ideologues SCOTUS won't buy whatever they're selling; and they don't like it. Here's one more.


Do you have some reliable links to this effect?
3.13.2008 11:54am
Sam Draper (mail):
Bush is just trying to cover his behind, like he did with assault weapons ban. He loudly proclaimed that he supported renewal of the ban, but whispered that it would never reach his desk. The man has no conservative convictions, and thinks that by leaking his opposition to his own policies the dumb bubbas will forgive him.

Bush is just trying to cover his behind, like he did with assault weapons ban. He loudly proclaimed that he supported renewal of the ban, but whispered that it would never reach his desk. He is doing the same thing here with Novak. Bush has no conservative convictions, and thinks that by leaking his opposition to his own policies the dumb bubbas will forgive him.

Either that or, as this article and many on the left argue, he is a disengaged puppet, unfit for the office.
3.13.2008 11:55am
DanG:

Clement is just doing his job man. As for Cheney . . . he's not part of the executive.


We can debate which branch of the government Cheney is in. But it's not really important for this discussion. BUSH is clearly in the executive branch. As is Clement. And the fact that, according to the Novak excerpt in this post, Bush--THE executive--disagrees with Clement's position is truly remarkable.
And this isn't a question of career bureaucrats disagreeing with the political appointees. Clement is a political appointee and while me might take input from career lawyers in the Criminal Division of DOJ, he is the one who signs the brief. They can't force him to argue anything he doesn't want to sign off on. I agree with Lederman's post on SCOTUS blog that some of this just seems implausible. Perhaps Bush is just trying to have it both ways.
3.13.2008 12:05pm
tarheel:
Looks to me like the White House (or the VP's office) just threw Clement under the Novak bus. Weird way to treat a highly-respected potential SCOTUS nominee.
3.13.2008 12:09pm
A.S.:
Did we ever get Eugene's take on the Clement brief? I have not made up my mind on the Clement positionI respect Eugene's opinion on gun control matters a lot, and I'd be very interested to know what Eugene thinks.

Or did I miss a post somewhere?
3.13.2008 12:19pm
advisory opinion:
"We can debate which branch of the government Cheney is in. But it's not really important for this discussion. BUSH is clearly in the executive branch. As is Clement."

That's the point. It IS important for this discussion because it's Cheney going on record "in his capacity as President of the Senate" against the petitioners, with the executive itself taking a hedged position. Bush gets plow the middle ground while plausibly denying Cheney's position.

Novak himself casts immediate doubt on his proposition when he writes: "But if Bush agrees with Cheney, why did the president not simply order Clement to revise his brief?"

Maybe because Bush does not, in fact, agree?

Lederman is correct that there is much to be skeptical about in Novak's column. What he claims happened behind the scenes is almost too theatrical to be believable . . .
3.13.2008 12:50pm
Cornellian (mail):
When the feds enact a ban (or near ban) on gun ownership, it will be described as a measure to keep guns out of the hands of terrorists.
3.13.2008 1:20pm
pireader (mail):
KevinP --

I wrote the comment from memory, mainly of coverage around the detainee cases. Will scrounge for links and post whatever I can resurrect. However, it won't be until late this evening.
3.13.2008 1:40pm
Ben Winograd (mail) (www):
Under Supreme Court rules, the date by which an amicus brief is due depends on the party the author supports. Because Clement's brief was filed in support of neither party, it was submitted to the Court on January 11, one week after the submission of the District's brief. If the White House truly had expected Clement to urge the Court to affirm the judgment of the D.C. Circuit, it would have expected the SG to file the brief following the submission of Heller's brief — i.e. by February 11. Assuming that Bush and his aides were at least aware that Clement's brief would be filed on January 11, then, it is hard to imagine how they could be "stunned" (as Novak put it) to learn that Clement did not support affirming the judgment below.
3.13.2008 2:00pm
glangston (mail):
Perhaps the Clement brief was just the wishful thinking of those who desire the Heller case to have all the effect of one beat of a hummingbird's wings.."let's just put this on a back burner for awhile and maybe it will just go away."
3.13.2008 2:30pm
KeithK (mail):
Regardless of which branch he represents, nothing other than political pressure requires the Vice President to agree with the President on any issue. The President can force the SG or AG to follow his policy preferences or resign but he can't do that with the VP.

Not saying that this is the case here or even likely. But it's certainly possible that Cheney simply disagrees with Bush on this issue.
3.13.2008 3:44pm
Dave N (mail):
And adding to KeithK's point, since the Vice President is not running for President or any other office this year (and probably never again), he is a true free agent.
3.13.2008 4:31pm
Dilan Esper (mail) (www):
One more wrinkle to bear in mind about this. Obviously, a Republican administration wants to cater to gun rights advocates. But gun rights advocates should not kid themselves that politicians, Republicans or Democrats, really believe that an environment in which citizens have lots of guns and are able to take them anywhere and everywhere is one that makes them safer. Rather, many politicians are at least somewhat fearful of assassination, and probably with some good reason-- I am sure they get lots of letters and telephone calls and e-mails from cranks that contain threats. There are reasons why there are metal detectors at the entrances to major government buildings in Washington DC.

Thus, don't discount the extent to which, despite their rhetorical condemnation of it, many Republicans may FAVOR the DC gun ban. (Indeed, I am very concerned, as someone who wants to see an individual right recognized by the Supreme Court, that justices on the Supreme Court who might otherwise be sympathetic also feel the same threat to their own personal safety and take this into account when voting.)
3.13.2008 4:44pm
Dilan Esper (mail) (www):
I might add one more thing-- gun rights advocates who make the "guns may be necessary to overthrow a tyrannical government" argument probably reinforce these sorts of inclinations among politicians and judges. Remember, these people ARE the government who might potentially be overthrown through the use of firearms.
3.13.2008 4:50pm
Tony Tutins (mail):

bush sux on gun rights, and had sucked long before he ran for prez

Kayne Robinson swore to us that electing W. would mean the NRA would have an office in the White House. And he had been the assistant chief of police for Des Moines, President of the Iowa Association of Chiefs of Police, and head of the Iowa Republican Party. He later was NRA President. A woman from Arizona, the umpteenth VP of the NRA at that time, told us that McCain was unreliable on gun rights, and we shouldn't support him.
3.13.2008 5:14pm
Jim at FSU (mail):
McCain isn't reliable on anything really. But that is still a huge step in the right direction compared to the consistency of an Obama or a Hillary.
3.13.2008 6:25pm
Paul Milligan (mail) (www):
The arguments of 'Secret Service fears' and 'assasination fears' are utter hogwash.

Any rational person knows that you will NEVER keep an IRRATIONAL person ( a Sirhan Sirhan, a Squeeky Fromme et al ) from getting their hands on guns, nor will you stop CRIMINALS in general from getting them.

The only thing you accomplish with a gun ban is to disarm thsoe who OBEY the law. Washington DC is a prime example of how ineffective this is in protecting ANYONE.

The Secret Service, politicians in general, etc, are not worried about the law abiding residents having a gun for self defence.
3.13.2008 7:41pm
zippypinhead:
This morning at the kitchen table I literally choked on my Cheerios as I read Novak's WaPo column. I generally assume most of what Novak writes about the Administration has been vetted in advance in the West Wing. If so, this column pretty clearly suggests somebody is tired of taking heat from the "base" for the SG's brief in Heller and is looking for Clement to be the fall guy. Surely this surprises nobody. But two points in the op ed's "spin" of the issue especially bother me:
"Promises in two presidential campaigns are being abandoned, and Bush finds himself to the left of even Democratic presidential candidate Sen. Barack Obama."
Say what? Novak is not only trashing the SG, he's trashing the President directly. And is overstating or misrepresenting the SG's position. The SG's amicus brief strongly supports the individual rights theory and telegraphs that the Administration believes the D.C. firearms laws at issue should be invalidated under the SG's proposed standard of review. Obama, by comparison, recently gave a speech with a tepid endorsement of an individual right to keep and bear arms, but indicated he supported "reasonable" restrictions like D.C.'s handgun ban. A position that was promptly echoed and elaborated on by Obama's old friend and mentor, Larry Tribe. I may be a pinhead, but I really can't see any basis for the assertion that the Administration is now to the left of Obama on gun rights. And:
"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."
Oh, this is precious! Career staff in a DOJ line litigating division made the SG do it, especially over OLC's objections? Clearly Novak (or his source) has never worked in a Cabinet-level Department and/or has no clue as to the relative roles of political versus career appointees in making policy decisions in general. Or at DOJ in particular. Perhaps Crim made more persuasive arguments than OLC, but certainly the SG can and does "resist" career staff's arguments whenever political or broader legal considerations require it. Trust me on this one...

The "neophyte" absolution of the Attorney General suggests that whomever is feeding this tripe to Novak doesn't want to also toss Mukasey's corpse into the dumpster along with Clement's. But the argument is, frankly, silly. The AG is always briefed on the position the SG intends to take in high-profile cases well before the briefing deadline. Maybe the AG didn't appreciate the political fallout that advocacy of an intermediate standard of review would cause, but he surely knew of (and approved) the basic outlines of the SG's position.

There's a lot more I could say, but I have to stop now. Or I'm liable to start choking again. Which would ruin my day almost as much as reading Novak's fantasy column did in the first place.
3.13.2008 11:39pm
Brett Bellmore:

The SG's amicus brief strongly supports the individual rights theory


Well, claims to, anyway. But I think it would be more accurate to say it supports an individual privileges theory, since this 'right' it claims to support doesn't get the sort of respect actual rights are due.

I'll grant you this, Obama's view is clearly worse than the AG's, for all that it's not different in principle, only degree.
3.14.2008 7:29am
Sam Draper (mail):
Compare Bush's alleged impotence against the bureaucrats and his reluctance to interfere with the Solicitor General in Novak's story to the "Bush Sought Less Stringent Ozone Standard" post ().
3.14.2008 1:42pm
Dilan Esper (mail) (www):
The arguments of 'Secret Service fears' and 'assasination fears' are utter hogwash. Any rational person knows that you will NEVER keep an IRRATIONAL person ( a Sirhan Sirhan, a Squeeky Fromme et al ) from getting their hands on guns, nor will you stop CRIMINALS in general from getting them. The only thing you accomplish with a gun ban is to disarm thsoe who OBEY the law. Washington DC is a prime example of how ineffective this is in protecting ANYONE. The Secret Service, politicians in general, etc, are not worried about the law abiding residents having a gun for self defence.

Paul:

You are overlooking a few things. First, while I agree it is hard to keep irrational people who really want guns from getting them (this is one of the reasons I am skeptical of arguments for gun bans), that isn't the same thing as saying that gun regulations don't work on the margins or that localized bans could never prevent a particular crime. In fact, members of Congress, White House staffers, and Supreme Court justices live in a rather thick security blanket (as anyone who has spent time in Washington, D.C. can tell you), and this does, in fact, likely deter or prevent some criminal acts.

Bear in mind that the more enlightened argument for Second Amendment rights is not that gun bans never stop a crime, but that gun bans also take weapons away from people who could use them to stop or deter crime in other situations.

And bear in mind that even if this is true, it is cold comfort to Washington politicians and judges, who are among the most likely to be shot if it does become easier to bring a gun within the vicinity of the seat of government. In other words, being the selfish beings they are, they could very well believe that even if having more guns out there will prevent more crimes than it will facilitate, it may very well put their own lives at greater risk. The two sentiments are not inconsistent with each other.

And though I don't know any Secret Service agents, I would tell you that I very much doubt that a high percentage of them have the view you express with respect to the DC gun ban. Indeed, gun control deeply splits law enforcement. I doubt it would be any different with the Secret Service, except that they are probably absolutely paranoid (as they are paid to be) with respect to any potential gun violence in the areas where politicians often congregate in D.C.
3.14.2008 8:48pm