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.

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  2. Administration Split on Gun Rights?
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Second Amendment Sniping:

Linda Greenhouse reports on the "sniping" within the Administration over the Solicitor General's brief in D.C. v. Heller.

Mr. Clement’s brief embraces the individual-rights position, which has been administration policy since 2001 when John Ashcroft, then the attorney general, first declared it in a public letter to the National Rifle Association. But the brief does not take the next step and ask the justices to declare, as the federal appeals court here did a year ago, that the District of Columbia law is unconstitutional.

Not that the solicitor general’s brief finds the law to be constitutional, or even desirable. Far from it: the brief offers a road map for finding the law unconstitutional, but by a different route from the one the appeals court took. The distinction may seem almost picayune, but it is a measure of the passions engendered by anything to do with guns that Mr. Clement’s approach is evidently being seen in some administration circles as close to a betrayal.

The brief argues that in striking down the District of Columbia’s law, the United States Court of Appeals for the District of Columbia Circuit took too “categorical” an approach, one that threatens the constitutionality of federal gun laws, like the current ban on machine guns. Mr. Clement asks the justices to vacate the decision and send the case back to the appeals court for a more nuanced appraisal of the issue.

This was a fairly standard performance for a solicitor general, who has a statutory obligation to defend acts of Congress. It is routine for any solicitor general to try to steer the court away from deciding cases in a way that could harm federal interests in future cases.

But Vice President Dick Cheney was nonetheless so provoked by Mr. Clement’s approach that last month he took the highly unusual step for a vice president of signing on to a brief filed by more than 300 members of Congress that asks the Supreme Court to declare the District of Columbia law “unconstitutional per se.”

Related Posts (on one page):

  1. Second Amendment Sniping:
  2. Administration Split on Gun Rights?
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