On March 18, the Supreme Court began its oral arguments on District of
Columbia vs. Heller, regarding the D.C. handgun ban and its possible
violation of the Second Amendment. The Founding Father’s statement in
question reads: “A well regulated militia, being necessary to the
security of a free state, the right of the people to keep and bear
arms, shall not be infringed.” Gun ban advocates insist that the “right
of the people to keep and bear arms” applies only to state militias,
whereas many D.C. residents, as well as pro-gun conservatives, maintain
that the Amendment applies to private gun ownership as well. The D.C.
gun ban is considered to be the most stringent gun ban in the country,
restricting residents from owning handguns and also requiring that
rifles and shotguns be kept “unloaded, disassembled, or bound by a
trigger lock.”
While the full effects of the case will not be felt until the verdict is made and the election date is closer, the issue has certainly sparked controversy across and between party lines. Before the arguments began, gun advocates—and the president and his senior advisors—were stunned to learn that the government’s “official position,” as filed with the Supreme Court by U.S. Solicitor General Paul Clement, opposes the extent of the lower court’s affirmation of individual ownership rights. The Justice Department’s stance essentially aligns the current Republican administration against one of the most core beliefs of conservatism: the individual right to keep and bear arms. To confuse matters, Vice President Dick Cheney signed a brief along with 55 senators and 250 House members formally opposing the government’s position, and asking to declare the District of Columbia’s law “unconstitutional per se.” Not only are majorities of both chambers of Congress at odds with the administration, but this is the first time in U.S. history that a vice president has signed a brief in opposition to the official government stance. Even more strangely, Cheney’s position could be seen as a break from the White House, but he is actually reflecting the opinions of President Bush. So why didn’t Bush order a revised brief by Clement? Apparently he gave in to congressional Democratic pressure to avoid interference in the Justice Department, but Bush’s lack of action could hurt conservative efforts to repeal the gun ban.
Equally concerning is Clement’s petition, which argues that Silberman’s (conservative member of the D.C. Court of Appeals who struck down the gun ban as unconstitutional) position on individual gun rights was so broad that it would endanger future federal gun laws such as the ban on owning machine guns. To hear such a slippery-slope argument from the conservative Washington lawyer who clerked for both Silberman and Scalia is certainly disconcerting, considering that this Supreme Court ruling will set the precedent for gun control laws and second amendment interpretation for years to come. Clement explains his position by saying that he feared that the Supreme Court’s swing vote, Justice Anthony Kennedy, would choose the liberal stance if he had to rule on Silberman’s position. Regardless of the reason, however, Clement has to give a 15-min speech in front of the Court, and the conservative cause needs his support. Let’s hope that Clement will amend his position in front of the judges, although it makes the Justice Department’s antics no less unusual.
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