Bush and the DC case

[Al Norris]

sigh.... And this is one of the reasons, that until now, I have kept "all things Heller" in one thread and one thread alone. That thread is virtually devoid of the petty bickering (after some 630+ posts - surely a minor miracle in the life of L&P!) that this thread is rife with.

Whether or not President Bush saw or even knew about the SG's brief is almost irrelevant, as someone close to him did. It is pretty standard for the SG to submit such briefs to the administration, before they are submitted to the Court. Someone close to Bush vetted this brief. Whether it was Bush himself or one of his close advisors, it met with approval.

I'm betting that the SG will not change his stance at tomorrows hearing. The Court will eat him alive, if he does. It is my considered opinion that Novak is simply pandering to us. Another name for this is, CYA.

Having just posted this, I will not post in this thread again. I will be watching, hammer in hand, ready to strike this thread (and possibly a few heads) should the bickering continue.

 

[publius42]

Sorry about the noise to signal ratio, Antipitas.

If I can just summarize:

Today the Solicitor General will get 15 minutes to explain the brief to the Supreme Court. The argument will be designed to get the case sent back to the lower court with instructions to find an individual right, but think up a new level of scrutiny, preferably one which won't implicate machine guns by talking about "categories" of weapons. That argument is made not on behalf of Heller nor of the District of Columbia, but on behalf of the federal government. The SG is required by law to defend federal laws in court, and this kind of argument time is not unprecedented.

At some point in the process, someone had to come to President Bush and say, look boss, we have to make this argument in front of the Court. How did he react? Did he jump for joy because he's such an ardent gungrabber? Did he reluctantly agree to support the brief, if only by his silence? Did he angrily agree not to fire the Solicitor General, but at the same time promise to send the VP out to sign a pro-gun brief in response?

I think it's the middle option, and I also think it doesn't really matter. For whatever reasons, Bush allowed his administration to go forward with the SG's brief and request for argument time before the Court. That puts his administration in the same place as Hillary and Obama on this case: there is an individual right, but a weak one. McCain is the one running, not Bush, and he has signed the same brief Cheney signed.

If the Solicitor General is successful today, the case will go back to the lower court. I wonder if that could reignite the "standing" issue and bring Parker and the rest back into the case?

 

[GoSlash27]

McCain is the one running, not Bush, and he has signed the same brief Cheney signed.

^ What he said. And I don't want to give the impression that "right of Bush" is the same thing as " 2nd Amendment advocate".

 

[Thumper]

Actually, the SG did a pretty good job of balancing his (pretty tough) job of arguing for an Individual interpretation while defending the Federal stance.

It seems as though he was a little surprised, though, at the acceptance and leeway he was given by Roberts and Scalia:

CHIEF JUSTICE ROBERTS: But this law didn't involve a restriction on machine guns. It involved an absolute ban. It involved an absolute carry prohibition. Why would you think that the opinion striking down an absolute ban would also apply to a narrow one -- narrower one directed solely to machine guns?
GENERAL CLEMENT: I think, Mr. Chief Justice, why one might worry about that is one might read the language of page 53a of the opinion as reproduced in the petition appendix that says once it an arm, then it is not open to the District to ban it. Now, it seems to me that the District is not strictly a complete ban because it exempts pre-1976 handguns. The Federal ban on machine guns is not, strictly speaking, a ban, because it exempts pre -pre-law machine guns, and there is something like 160,000 of those.
JUSTICE SCALIA: But that passage doesn't mean once it's an arm in the dictionary definition of arms. Once it's an arm in the specialized sense that the opinion referred to it, which is -- which is the type of a weapon that was used in militia, and it is --it is nowadays commonly held.
GENERAL CLEMENT: Well -
JUSTICE SCALIA: If you read it that way, I don't see why you have a problem.
GENERAL CLEMENT: Well, I -- I hope that you read it that way. But I would also say that I think that whatever the definition that the lower court opinion employed, I do think it's going to be difficult over time to sustain the notion -- I mean, the Court of Appeals also talked about lineal descendants. And it does seem to me that, you know, just as this Court would apply the Fourth Amendment to something like heat imagery, I don't see why this Court wouldn't allow the Second Amendment to have the same kind of scope, and then I do think that reasonably machine guns come within the term "arms."
Now, if this Court wants to say that they don't -- I mean -- I mean -- we'd obviously welcome thatin our -- in our obligation to defend the constitutionality of acts of Congress.

 

[Glenn E. Meyer]

White House Spin Machine - ABC News

---The White House spin machine broke down. Someone over there was trying to persuade reporters last week that Solicitor General Paul Clement would back away from his position--filed in the Bush Administration’s written brief---urging the Court to adopt a balancing test to assess gun laws. (Clement’s position had enraged the gun rights crowd and was a more moderate and cautious approach than what Judge Silberman advanced his D.C. Circuit opinion, which flatly struck down the gun ban.) Clement, if anything, more aggressively defended his position today and suggested Silberman’s opinion would undermine existing federal gun laws.

---Justice Ginsburg asked if there was any difference in Clement’s standard and Judge Silberman’s. “It makes a world of difference,” Clement said.

--Chief Justice Roberts and Justice Scalia hate balancing tests. Roberts asked Clement why the Court should impose the “baggage” of a balancing test—as it has done over the decades in the First Amendment—on a provision it’s taking a fresh look at today?

--And Scalia seemed the most certain that the 2nd Amendment protects an individual right, that DC’s handgun ban was unconstitutional—and that Judge Silberman got it exactly right.