Last week, the Bush administration put troubling distance between itself and principled Second Amendment defenders. We refer to the amicus brief that Solicitor General Paul Clement filed Friday in support of the plaintiffs in District of Columbia v. Heller — the D.C. gun-ban challenge, widely expected to be the court’s most significant gun-rights case in 60 years when a decision is reached.
The brief sides with the D.C. plaintiffs seeking to exercise their Second Amendment rights, but it then expends much effort worrying that an end to gun bans like the District’s would mean an end to most types of federal firearms regulation, which is something to consider after, not before, the constitutional issues are resolved. Next, it proposes much fact-finding by judges in a new balancing act whose effect would be to usurp legislative priorities. Conservatives normally call this “judicial activism.”
In short, this is no full-throated and principled defense of gun rights as they are inscribed in the Constitution. In fact, the brief explicitly rejects the arguments of D.C. Circuit Judge Laurence Silberman, whose opinion last March is a cardinal example of constitutionalist argumentation. Judge Silberman affirmed the common-sense notion that the plain language of the Second Amendment — “the right of the people to keep and bear arms, shall not be infringed” — means what it says. The noted liberal Harvard University legal scholar Laurence Tribe has endorsed this literalist interpretation of the Second Amendment. It is the emerging consensus view and the correct one, however much gun-control advocates or the government of the District of Columbia may lament it. (Is the Justice Department throwing the gun-control lobby, or its own regulators, a bone?)
Some speculate that the brief is meant to appeal to Justice Anthony Kennedy, a pivotal justice on the high court. Justice Kennedy’s fifth vote ensures a conservative majority when he so chooses. If true, this is just so much shadow-boxing. Justice Kennedy needs no help from the Justice Department arriving at exquisite positions.
Far better it would be to side with principle on a matter of core constitutional importance — leaving these other questions to be addressed in the future, by the proper authorities. Instead, the administration seems to have gone soft.