Although some thoughtful lovers of liberty have lamented the
half-empty aspects of the U.S. Solicitor General's recently-filed
brief in the D.C. gun ban case (District of Columbia v.
Heller), the portion that is full is legally far more
significant in securing Second Amendment rights in the arena that
counts most: the Supreme Court. On careful analysis, the brief's
departures from sound principle are internally inconsistent and
otherwise not particularly effective. Americans should recognize
the importance of the government's concessions to individual
liberty and ignore its predictable, bureaucratic attempt to defend
existing federal laws. That is what the High Court is most likely
to do.
Reason to Rejoice
It is no minor event when the national government clearly and
forcefully admits to the highest court in the land that Americans
enjoy a constitutional right that has been hotly debated for years,
especially when that constitutional right is a limit on the
government's own power. That is what the Department of Justice's
chief litigator did in a brief filed last week in the Supreme Court
case testing the constitutionality of the Washington, D.C., gun
ban.
D.C.'s gun ban may be the strictest in the country. The city has
banned the registration, and thus the possession, of handguns by
private citizens and forbidden its citizens from maintaining any
long gun (ordinary rifles or shotguns) in a state of readiness for
self-defense in their homes. As the D.C. Circuit Court put it,
under the ban, not even a law-abiding citizen may own a weapon
"that could be readily accessible to be used effectively when
necessary for self-defense in the home."[1]
The original plaintiffs in the case sought only to enforce the
right to posses and maintain such working guns in their homes.
Among them were an anti-drug activist who had received threats from
drug gangs and a security guard who could lawfully use a gun at
work protecting the federal judiciary but not at home. In response,
D.C. government officials tried to assert their power to prosecute
anyone who dared keep a gun in his or her home for
self-defense.
If the Second Amendment gives individual Americans a right "to
keep and bear arms" that "shall not be infringed," D.C.'s gun ban
surely violates that right. Last March, the D.C. Circuit Court held
that the Second Amendment does confer that individual right,
and it then logically concluded that a near-complete ban like the
District's was unconstitutional.[2]
The Federal Government's Conflict
No one knew exactly how the federal government would respond
when the case was accepted by the Supreme Court. Though one
influential office of the Bush Justice Department had earlier
opined that the Second Amendment protects an individual right
(rather than a mere militia power),[3] the government, no matter
what political party controls it, faces very strong incentives to
protect its own power. In addition, the U.S. Justice Department has
a traditional obligation to try to defend existing federal laws
whenever a reasonable argument can be made to support them, and
there are a number of federal gun laws that the department would
feel duty-bound to preserve.
Those who understood the department's dual obligations--to
defend the Constitution and also to preserve federal power and
federal statutes where possible--knew that some attempt at
baby-splitting was likely. Serious originalists are correct that
the government's brief erred in the line it tried to draw and went
unreasonably far in its attempt to preserve government power, but
what the government concedes is far more important. And like the
original solution proposed by King Solomon, the Solicitor General's
solution so threatens the viability of the individual right that it
will be quickly rejected by anyone who cherishes such rights.
What the Solicitor General
Concedes
The Solicitor General's brief states the government's position
in no uncertain terms. The Second Amendment, it says, "protects an
individual right to possess firearms unrelated to militia
operations."[4] As the brief explains, this right is
apparent in the amendment's plain text, its location in the Bill of
Rights, and historical practices at the time of its drafting.
Americans of all stripes know that this has been the central
issue underlying the Second Amendment for decades. The competing
school of thought was that the Second Amendment only protected
"militia rights," which in turn were wholly subject to government
regulation. The U.S. government sided with the decisive weight of
recent scholarly research and the more recent court cases that have
seriously examined the constitutional question. That trifecta
(government, scholarly, and court opinion) is going to be hard for
the Supreme Court to ignore.
In the law and in everyday experience, statements by any party
that are against that party's interests are treated as especially
reliable and, in most instances, particularly powerful. Thus, the
federal government's "admission against interest" that the Second
Amendment protects an individual right is likely to have a striking
impact in the Supreme Court chambers.
Splitting the Baby
Given the government's obligation to try to save as many federal
gun statutes as possible, it is not surprising that the brief also
urges the Supreme Court to limit the same individual right it asks
the court to recognize. Because other liberties in the Bill of
Rights, such as the right to speak freely, are subjected to
"well-recognized exceptions"--shouting "fire" in a theater, for
example--the brief reasons that the Second Amendment right to bear
arms does not apply at all to certain individuals, broad classes of
arms, and a wide variety of situations.[5] Under the Solicitor General's
theory, the government would have broad discretion to carve out
exceptions, with a very deferential judicial review.
In contrast to "statements against interest," positions
that promote a party's interests in court are treated as mere
"litigation positions" that are only as persuasive as the logic
behind them. There are many reasons why the Solicitor General's
baby splitting will be seen for what it is and rejected.
First, the Solicitor General's arguments about how much
deference the courts should pay to the government's attempts to
regulate or limit Second Amendment rights is out of line with
established law and precedent. The executive branch is entitled to
deference by the courts in its interpretations of the scope of
federal statutes and regulations, particularly when the statues and
regulations are authorized by some admitted power granted to the
government.[6] But the government is entitled to no
particular deference (and, in some cases, particular suspicion)
when it interprets the contours of individuals' fundamental rights
against the government. For obvious reasons, the government should
not get much deference when it claims the power to limit our
individual rights.
Indeed, any lawyer and any non-activist judge knows that once an
individual right analogous to the right to free speech or the right
to vote is recognized, an enormous body of settled law is applied
to its protection. As the Supreme Court has held again and again,
the government needs to have exceedingly good reasons to infringe
on an individual right, and it may only do so in the most
circumscribed ways. Laws that abridge analogous fundamental rights
must stand up to "strict scrutiny," among courts' most challenging
levels of review, and are upheld only when the government has
compelling interests and acts solely to further those interests.
This is very different from the kind of review that the government
proposes.
In practice, the courts approve very few regulations under this
exacting review. The exceptions to analogous individual liberties,
such as the right of free speech protected by the First Amendment
or the right to vote protected by the Fourteenth and Fifteenth
Amendments, are exceedingly rare. Convicted felons may forfeit
their right to vote, and under a similar analysis, convicted felons
may forfeit their right to possess firearms. A reasonable voter
registration law protects the law-abiding voter, and reasonable
criminal background checks may be lawful to prevent felons from
obtaining guns. But large classes of law-abiding citizens cannot be
denied their right to vote, to speak freely, or to exercise their
religious freedom based on some flimsy government "interest."
Literacy tests and grandfather clauses are seen for what they are
and are struck down if they unreasonably interfere with the right
to vote.
In sum, the very narrow exceptions to the freedom of speech, the
vote, and the practice of one's religion prove the opposite of what
the Solicitor General cites them for.
Second, the substantive arguments the Solicitor General advances
are terribly flimsy. One argument is that not all hand-held guns
are "arms" subject to Second Amendment protection. The brief offers
no support, in the constitutional text or elsewhere, for this
proposition. Tanks are indeed not arms; cannons are not arms. But
all guns are "arms" within the original meaning of the Second
Amendment. Any reasonable judge understands that if the government
can come up with an artificial definition for "arms," it can do
likewise for "speech," "vote," "religion," etc. That there may be a
few hard questions about what is a protected arm (and there likely
will be) does not undermine the conclusion that common handguns,
rifles, and shotguns are "arms" protected by the Second
Amendment.
The Solicitor General's next argument is that the amendment
refers to a "well regulated militia" and that early laws on
militias (which were more like today's army than any present
militia group) described the weapons that soldiers should wield.[7]
Because Congress could regulate the weapons used by what was
essentially the national army in 1792, argues the government,
Congress today should be able to prescribe what guns American
citizens are able to own. This is a non-sequitur. That the
government can regulate the guns used by the military (or the
militia when it is in government service) has nothing to do with
the individual right to own personal weapons. The government can
make rules for military conduct, but it does not follow that it can
dictate religious codes that soldiers and civilians alike must
follow.
Moreover, this strained argument regarding a "well regulated
militia" flatly contradicts the Solicitor General's earlier and
more straightforward contention that the "militia" clause "does not
limit the substantive right that the [Second] Amendment secures."[8] If one
of these contradictory positions is to be rejected, this is the one
that will be jettisoned.
This part of the Solicitor General's brief probably will not
receive much attention for another important reason: The federal
statutes it is trying to preserve and the hypotheticals it raises
just aren't at issue in the case before the Court. D.C.'s gun ban
violates any reasonable conception of a right "to keep and bear
arms." The High Court has no reason to decide the exact contours of
the right in order to uphold the lower court decision. The lower
court simply decided that the denial of a right to possess
virtually any gun in a citizen's home is unconstitutional. Going
beyond that narrow holding would be dicta, and responsible judges
know they are not supposed to issue advisory opinions.
Conclusion
For constitutionalists and gun-rights advocates, the Solicitor
General's brief is a big victory. It got the big question, the one
that matters, right: Americans do have a right to keep and bear
arms. Though the details of how the Solicitor General would like to
apply that right are disappointing, the Supreme Court will likely
accord that part of the brief the weight it is due: none.
Todd Gaziano is Director
of, and Andrew M.
Grossman is Senior Legal Policy Analyst in, the Center for
Legal and Judicial Studies at The Heritage Foundation.