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

The New Republic, 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.

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