Publication: Conservative Review
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THE CONSERVATIVE REVIEW
March 14, 2008
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W's Gun Battle
By Robert D. Novak
WASHINGTON, D.C. -- Preparing to hear oral arguments
Tuesday on the extent of gun rights guaranteed by the
Constitution's 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 George W. 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 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.
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Consequently, a Republican administration finds itself
aligned against the most popular tenet of social con-
servatism: gun rights that enjoy much wider support than
opposition to abortion or gay marriage. Promises in two
presidential elections are abandoned, and Bush finds
himself left of Democratic presidential candidate Sen.
Barack Obama.
The 1976 District of Columbia statute prohibiting owner-
ship of all functional firearms a year ago was called
unconstitutional in violation of the Second Amendment
in an opinion by Senior Judge Laurence Silberman, a
conservative who has served on the D.C. Circuit Court
for 22 years. It was assumed Bush would fight Washington
Mayor Adrian Fenty's appeal.
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 existing federal gun control laws such as
the bar on owning machine guns. The president could have
ordered a revised brief by Clement. But under congress-
ional Democratic pressure to keep hands off the Justice
Department, Bush did not act.
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Cheney did join 55 senators and 250 House members in
signing a brief supporting the Silberman ruling. While
this unprecedented vice presidential intervention was
widely interpreted as a dramatic breakaway from the
White House, longtime associates could not believe
Cheney would defy the president. In fact, he did not.
Bush approved what Cheney did in his constitutional
legislative branch role as president of the Senate.
That has not lessened puzzlement over Clement, a 41-
year-old conservative Washington lawyer who clerked
for Silberman and later for Supreme Court Justice
Antonin Scalia. Clement has tried to explain his
course to the White House by claiming he feared
Justice Anthony Kennedy, the Supreme Court's current
swing vote, would join a liberal majority on gun
rights if forced to rule on Silberman's opinion.
The more plausible explanation for Clement's stance
is that he could not resist opposition to individual
gun rights by career lawyers in the Justice Department's
Criminal Division (who clashed with the Office of
Legal Counsel in a heated internal struggle). Newly
installed Attorney General Michael Mukasey, a neophyte
at Justice, was unaware of the conflict and learned
about Clement's position only after it had been locked
in.
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A majority of both houses in the Democratic-controlled
Congress are on record against the District of Columbia's
gun prohibition. So are 31 states, with only five (New
York, Massachusetts Maryland, New Jersey and Hawaii) in
support. Sen. Obama has weighed in against the D.C. law,
asserting that the Constitution confers individual rights
to bear arms -- not just collective authority to form
militias.
This popular support for gun rights is not reflected by
an advantage in Tuesday's oral arguments. Former Solicitor
General Walter Dellinger, an old hand at arguing before
the Supreme Court, will make the case for the gun prohib-
ition. Opposing counsel Alan Gura, making his first high
court appearance, does not have the confidence of gun-owner
advocates (who tried to replace him with former Solicitor
General Ted Olson).
The cause needs help from Clement in his 15 minute oral
argument, but not if he reiterates his written brief. The
word was passed in government circles this week that
Clement would amend his position when he actually faces
the justices -- an odd ending to bizarre behavior by the
Justice Department.
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