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.