Every Supreme Court term has at least one “blockbuster” case that send shockwaves not only through the legal community, but also through the general public. Cases like the Kelo decision, allowing governments to convert your house into a shopping mall (provided it isn’t too nice of a house), the first and second Carhart decisions, denying and then allowing restriction of partial birth abortion, or the recent Parents Involved case restricting the ability of school districts to use race in their admission processes, shape the public consciousness about the Court and its actions.
Although there are several important cases this term, none will have the effect on the public’s mind that the Supreme Court’s decision in District of Columbia v. Heller will have. In that case, the Supreme Court will finally take up one of the great, undecided matters of constitutional law: Whether the Second Amendment guarantees a personal right to bear arms. Whatever the Court decides, it will have implications on electoral politics for the next generation. Unfortunately, the Bush Administration has ignored an opportunity to push the Court toward the right on the issue, and transform the politics of the 2008 elections in the process.
A key step in the development of Second Amendment jurisprudence was the Bush Administration’s decision to adopt the “individual rights” theory of the Second Amendment. This theory holds that the Supreme Court’s Miller decision was, in essence, incorrect, and that the right to keep in bear arms means what it says — that an individual has a right to own guns. The Department of Justice in 2001 reversed the Clinton Administration’s previous position on the right to bear arms, setting off a firestorm of criticism. Yet for the past seven years, the Administration has stood its ground and consistently instructed its United States Attorneys to argue for the individual right to bear arms, if they could given the law of their Circuit.
So it came as an absolute shock to many supporters of an individual right to keep and bear arms when the Solicitor General filed a brief in the Heller matter opposing the plaintiffs’ claims. This remarkable brief brings back memories of the Administration’s position in the Grutter and Gratz cases, where the Administration argued that, while the schools’ affirmative action policies were unconstitutional, the rationale behind them was not.
The Solicitor General’s brief in Heller similarly tries to split the baby. It argues, strenuously, that the Constitution does protect and individual’s right to bear arms. It also argues that, like other rights in the Bill of Rights, the right to keep and bear arms is not unlimited. It then suggests a more restrictive test for the right than that used by the Court of Appeals: that a court should consider the practical impact of the regulation on the right to bear arms and the government’s interest in the enforcement of the regulation, rather than the Court of Appeals’ more categorical approach to regulations of “Arms.” In other words, it argues for a kind of intermediate scrutiny. The Solicitor General suggests that the Court adopt a different test than that used by the Court of Appeals, and then remand the case for further review.
Which raises the question: What the heck was the Bush Administration thinking? For decades, a critical component of the Republican coalition has been working class gun owners who are bothered by the Democrats’ embrace of gun control. Republicans actually seem to have won that battle, with Democrats backing off of gun control legislation in the recent Congress. Why after enduring so much hostile press would the Bush Administration sell out the NRA at this critical juncture? And why make the reversal in a difficult election year, when the support of gun control opponents will be so critical to Republican fortunes?
There are two potential answers. The generous answer lies in the composition of the Court. It is thought that the four “conservative” Justices — Thomas, Scalia, Roberts, and Alito — are sympathetic to the individual right to bear arms. The four “liberal” Justices — Stevens, Ginsburg, Breyer and Souter — may be more hostile. This leaves Justice Kennedy as the swing vote. Kennedy is notoriously difficult to predict, especially on high-profile “social issues.” It is also true that within the next few years, Justices Stevens and Ginsburg will be replaced, possibly with a Republican President. So the Solicitor General may be gambling that Justice Kennedy will be easier to persuade with a lower standard, or that if the plaintiffs get a remand, the Court may be more conservative when the case comes back up, and more likely to win in the long run.
The less generous answer lies in the reality of the Bush Administration. Contrary to the caricatures painted by liberals, there are precious few issues that the Administration has not sold the Right out on. No Child Left Behind, the prescription drug benefit, monstrous budget deficits, McCain-Feingold, Patient’s Bill of Rights . . . all of these issues cross the gamut of modern politics, and all of them are issues where the Bush Administration’s Rovian plotting has placed it at loggerheads with standard conservatism. Even on judges, where the Administration usually wins plaudits, conservatives forget Harriet Miers, and forget that two of Bush’s first ten Court of Appeals appointments were Clinton appointees. Is it really that hard to believe that the Administration would lurch to the left on the issue of guns?
Regardless, this issue is in the Supreme Court of the United States. Its decisions are not easily overruled once they are handed down. Even if one gives the Administration the benefit of the doubt, it has made an awful error here by siding against the District’s citizens. The job of a conservative administration is to attempt to persuade the Court to adopt conservative views, not to attempt to play politics or split the baby. It has foregone an opportunity to write a brief that could persuade the Justices to adopt a view of the Second Amendment that assigned scrutiny commensurate with those of other guarantees of the Bill of Rights. Moreover, in a high stakes election, which is likely to be a tough one for the Republican, the Administration has risked alienating a substantial portion of the Republican base, who are understandably incensed with the Administration, and will be apoplectic if the Court does not affirm the Court of Appeals.
The Administration seems to be playing a game of high stakes poker with an incendiary issue in an election year. One can only hope it does not get us all burned.