Misfire at Justice
January 22, 2008; Page A18

The Second Amendment's right to bear arms has rarely been considered by the Supreme Court, but this year the Court is hearing a case that could become a Constitutional landmark. So it is nothing short of astonishing, and dispiriting, that the Bush Justice Department has now weighed in with an amicus brief that is far too clever by half.

The case concerns a D.C. Circuit decision that overturned a Washington, D.C., law denying a handgun permit to plaintiff Dick Heller. Judge Laurence Silberman wrote for the majority that when the Second Amendment says "the right of the people to keep and bear arms, shall not be infringed," it means exactly that. He added that "the Second Amendment protects an individual right to keep and bear arms" (our emphasis), and is not limited to people serving in a modern "militia" such as the National Guard, as some gun-control advocates maintain.

The amicus brief filed by Solicitor General Paul Clement agrees with this part of the D.C. Circuit ruling. But then it goes on a bender about violent felons wielding machine guns, urging the Supreme Court to reject the legal standard applied by Judge Silberman. Instead, the SG invites the Supremes to hand down an elaborate balancing test that would weigh "the strength of the government's interest in enforcement of the relevant restriction" against an individual's right to bear arms.

This is supposedly necessary because of this single phrase in Judge Silberman's 58-page ruling: "Once it is determined -- as we have done -- that handguns are 'Arms' referred to in the Second Amendment, it is not open to the District to ban them" (our emphasis). This has alarmed the lawyers at Justice, eliciting their dire warnings that somehow Judge Silberman's logic would bar the regulation of M-16s, felons with guns, or perhaps even Sherman tanks.

This is bizarre. The key word in Judge Silberman's opinion is "ban." His opinion readily concedes that regulating guns and banning them are not the same. He explicitly notes that felons may be barred from owning guns without implicating the Second Amendment and points out that weapons of a strictly military nature are not encompassed by the right to bear arms. Nothing in Judge Silberman's opinion precludes reasonable restrictions on weaponry.

More ominously, if Mr. Clement's balancing test were adopted by the High Court, it would be an open invitation to judges nationwide to essentially legislate what is or isn't proper regulation. The beauty of Judge Silberman's standard is that it carved out wide Constitutional protections for arms -- such as "most" hand guns and hunting rifles -- that Americans now own and that might reasonably have been anticipated by the Founders. The Bush Justice Department is instead inviting the Supreme Court to uphold an individual right to bear arms in principle but then allow politicians and judges to gut it in practice.

The District of Columbia has argued that it has a strong governmental interest in a near-total handgun ban. To support its claims it has trotted out all manner of emotive appeals and dubious sociology to attenuate the right protected by the Second Amendment. Justice's balancing test would invite thousands of judges to allow fact-finding on the need for gun control and then issue what would essentially be their own policy judgments. This is precisely the kind of activist judicial nightmare that President Bush himself claims to oppose.

So why would his own Solicitor General do this? The speculation in legal circles is that Mr. Clement is trying to offer an argument that might attract the support of Anthony Kennedy, the protean Justice who is often the Court's swing vote. But this is what we mean by "too clever by half." Justice Kennedy would be hard-pressed to deny that the Second Amendment is an individual right, given his support in so many other cases for the right to privacy and other rights that aren't even expressly mentioned in the Constitution. No less a left-wing scholar than Laurence Tribe has come around to the view that the Second Amendment protects an individual right for this very reason. Mr. Clement is offering a needless fudge.

The D.C. Circuit's opinion in Heller is forceful, clearly reasoned and Constitutionally sound. By supporting that decision and urging the Supreme Court to validate it, the Bush Administration had the opportunity to help the Court see its way to a historic judgment. Instead, it has pulled a legal Katrina, ineptly declining even to take a clear view of whether Mr. Heller's rights had been violated. It dodges that call by recommending that the case be remanded back to the lower courts for reconsideration.

The SG's blundering brief only increases the odds of another inscrutable High Court split decision, with Justice Kennedy standing alone in the middle with his balancing scales, and the lower courts left free to disregard or reinterpret what could have been a landmark case. Is anybody still awake at the White House?