Gun Shy: The Justice Department Weighs in on the Second Amendment

January 25, 2008

Shortly after taking office, the Bush administration dropped a love bomb on gun rights enthusiasts nationwide. In May 2001, then-Attorney General John Ashcroft wrote a letter to the National Rifle Association stating “unequivocally my view that the text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms.” The letter was part of a long honeymoon between the Bush administration and the Second Amendment crowd that has lasted almost to the end of Bush’s second term.

But the party may now be ending. “A lot of Americans who believe in the right to own guns were very disappointed this weekend,” wrote John R. Lott Jr., author of More Guns Less Crime, in National Review Online last week in an article with the subheading, “The Bush DOJ Shoots at the Second Amendment.” And he’s not the only gun-rights advocate wringing his hands. The Wall Street Journal editorialized Monday that “it is nothing short of astonishing” that the administration is “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 gun-rights crowd is upset about a legal brief filed by Solicitor General Paul Clement on behalf of the Bush administration in the Supreme Court case challenging the constitutionality of Washington, D.C.’s handgun ban. The D.C. Circuit Court of Appeals last year struck down the handgun law, holding that the Second Amendment created an individual right to guns and that the law–by categorically barring handguns–impermissibly impinged on this right. Most people assumed the administration would back the decision. But it didn’t–at least, not completely. While Clement defends the D.C. Circuit’s individual rights position, he argued that the high court should adopt a gentler standard for review of gun laws, and should make the lower court take another look under that standard.

When I sat down to read the brief for myself, I expected to find, as the Journal later complained, an acknowledgement of a constitutional right so denuded of content as to be meaningless. But I was wrong. The more I think about Clement’s brief, the better I like it–and the more it seems like a satisfying middle ground for the high Court to take.

It’s easy to see why conservatives are in a tizzy. While the brief endorses the D.C. Circuit’s view that “the Second Amendment protects an individual right to possess firearms unrelated to militia operations,” it also emphasizes that adopting this view “does not render all laws limiting gun ownership automatically invalid” and insists that the lower court “did not apply the correct standard for evaluating [a] Second Amendment claim.” What is the correct standard? Laws limiting gun ownership, the government argues, should be subject to “heightened scrutiny” under which “the practical impact of the challenged restriction” gets balanced against “the strength of the government’s interest in enforcement of the relevant restriction.” According to the Bush administration, “important regulatory interests are typically sufficient to justify reasonable restrictions.” Because the lower court did not consider the D.C. law using this standard, the solicitor general argues, the case should be sent back for further consideration.

This is a pretty weak conception of a constitutional right. You can’t imagine subjecting, say, the First Amendment to such a test. It would be laughable for the court to permit–or the executive branch to advocate–the abridgment of press or religious freedoms whenever the government’s interest in restricting them served an “important regulatory interest” and therefore constituted a “reasonable restriction.”

But, in the context of the Second Amendment, this approach makes sense. As liberal constitutional scholar Sanford Levinson, whose seminal law review article on the Second Amendment helped launch the revival of the individual rights view’s academic respectability, put it in an e-mail to me, the administration’s brief “makes a quite temperate argument … and offers a genuine way out of some of the harsher aspects of the cultural war over guns.”

The administration’s attempt to steer a middle course stems from the fact that the solicitor general has conflicting interests in the case. Ever since Ashcroft’s letter, the department has had a philosophical commitment to the individual rights conception of the amendment. Yet Congress has also passed many gun laws, which Clement is bound to defend. He cannot in good conscience urge on the court a standard of review which risks orphaning those laws. Clement has to somehow frame an individual rights conception of the amendment that still permits the ban on machine guns, the Brady handgun law, and restrictions on felons owning firearms. That’s by no means impossible under the lower court’s ruling, but getting the Supreme Court to adopt a more lenient standard of review would give federal gun laws a bit more breathing space.

This tension in the Justice Department’s interests in the Second Amendment actually parallels a related tension within the public’s interests in it. Quite reluctantly, being generally a supporter of gun control, I have come to believe in the individual rights view of the provision. The historical evidence cited in the lower court opinion is powerful, the text of the amendment itself even more so. Though one can still make a respectable historical and textual argument for the collective rights view of the amendment, the weight of the argument is on the individualistic side. The words “the right of the people to keep and bear Arms shall not be infringed” have to mean something. For the justices to pretend otherwise would cast doubts on our society’s fidelity to the Constitution itself.

At the same time, a view of the amendment that cripples modern governments from keeping terribly dangerous weapons out of big cities and out of the hands of dangerous people would be a disaster in practical terms. Whatever conception the founders may have had of the amendment, they didn’t have to think about situations like Virginia Tech, and they did not have inner-city gun crime. All of this argues against a simple translation of Second Amendment values from the founding era to our own. It’s a reality that is implicitly recognized in the Bush administration’s brief.

The justices, of course, are free to ignore the views of the solicitor general, as some of them surely will. Yet the brief is nonetheless important as a charting of a Second Amendment jurisprudence that takes account of this piece of our constitutional tradition without imposing a constitutional rule profoundly maladapted to modern American life.

With the Supreme Court, for the first time in decades, having no choice but to interpret the Second Amendment, there are potentially significant costs to a stark decision in either side’s favor. I would prefer simply repealing what Levinson once called “the embarrassing Second Amendment.” But, in the absence of that option, perhaps the best interpretive approach is one that looks a lot like the government’s brief: Acknowledging the amendment as proclaiming a right, but candidly treating that right as more flexible and less absolute than its neighbors in the Bill of Rights. Operationally, this would make the Second Amendment a factor the government has to consider before it tries to regulate guns, but one that a well-crafted and necessary regulation will generally overcome.