{"id":2673,"date":"2008-01-22T08:51:51","date_gmt":"2008-01-22T13:51:51","guid":{"rendered":"https:\/\/www.orthodoxytoday.org\/blog\/2008\/01\/22\/bush-administration-wrong-on-guns\/"},"modified":"2008-01-22T08:51:51","modified_gmt":"2008-01-22T13:51:51","slug":"bush-administration-wrong-on-guns","status":"publish","type":"post","link":"https:\/\/www.orthodoxytoday.org\/blog\/2008\/01\/bush-administration-wrong-on-guns\/","title":{"rendered":"Bush Administration Wrong on Guns"},"content":{"rendered":"

Human Events<\/a> | Mark Skousen | Jan. 22, 2008<\/p>\n

Although there are several important cases this term, none will have the effect on the public\u2019s mind that the Supreme Court\u2019s decision in District of Columbia v. Heller will have. In that case, the Supreme Court will finally take up one of the great, undecided matters of constitutional law: Whether the Second Amendment guarantees a personal right to bear arms. Whatever the Court decides, it will have implications on electoral politics for the next generation. <\/p>\n

Unfortunately, the Bush Administration has ignored an opportunity to push the Court toward the right on the issue, and transform the politics of the 2008 elections in the process.<\/p>\n

A key step in the development of Second Amendment jurisprudence was the Bush Administration\u2019s decision to adopt the \u201cindividual rights\u201d theory of the Second Amendment. This theory holds that the Supreme Court\u2019s Miller decision was, in essence, incorrect, and that the right to keep in bear arms means what it says — that an individual has a right to own guns. The Department of Justice in 2001 reversed the Clinton Administration\u2019s previous position on the right to bear arms, setting off a firestorm of criticism. Yet for the past seven years, the Administration has stood its ground and consistently instructed its United States Attorneys to argue for the individual right to bear arms, if they could given the law of their Circuit.<\/p>\n

So it came as an absolute shock to many supporters of an individual right to keep and bear arms when the Solicitor General filed a brief in the Heller matter opposing the plaintiffs\u2019 claims. This remarkable brief brings back memories of the Administration\u2019s position in the Grutter and Gratz cases, where the Administration argued that, while the schools\u2019 affirmative action policies were unconstitutional, the rationale behind them was not.<\/p>\n

The Solicitor General\u2019s brief in Heller similarly tries to split the baby. It argues, strenuously, that the Constitution does protect and individual\u2019s right to bear arms. It also argues that, like other rights in the Bill of Rights, the right to keep and bear arms is not unlimited. It then suggests a more restrictive test for the right than that used by the Court of Appeals: that a court should consider the practical impact of the regulation on the right to bear arms and the government\u2019s interest in the enforcement of the regulation, rather than the Court of Appeals\u2019 more categorical approach to regulations of \u201cArms.\u201d In other words, it argues for a kind of intermediate scrutiny. The Solicitor General suggests that the Court adopt a different test than that used by the Court of Appeals, and then remand the case for further review.<\/p>\n

Which raises the question: What the heck was the Bush Administration thinking? For decades, a critical component of the Republican coalition has been working class gun owners who are bothered by the Democrats\u2019 embrace of gun control. Republicans actually seem to have won that battle, with Democrats backing off of gun control legislation in the recent Congress. Why after enduring so much hostile press would the Bush Administration sell out the NRA at this critical juncture? And why make the reversal in a difficult election year, when the support of gun control opponents will be so critical to Republican fortunes?<\/p>\n

There are two potential answers. The generous answer lies in the composition of the Court. It is thought that the four \u201cconservative\u201d Justices — Thomas, Scalia, Roberts, and Alito — are sympathetic to the individual right to bear arms. The four \u201cliberal\u201d Justices — Stevens, Ginsburg, Breyer and Souter — may be more hostile. This leaves Justice Kennedy as the swing vote. Kennedy is notoriously difficult to predict, especially on high-profile \u201csocial issues.\u201d It is also true that within the next few years, Justices Stevens and Ginsburg will be replaced, possibly with a Republican President. So the Solicitor General may be gambling that Justice Kennedy will be easier to persuade with a lower standard, or that if the plaintiffs get a remand, the Court may be more conservative when the case comes back up, and more likely to win in the long run.<\/p>\n

The less generous answer lies in the reality of the Bush Administration. Contrary to the caricatures painted by liberals, there are precious few issues that the Administration has not sold the Right out on. No Child Left Behind, the prescription drug benefit, monstrous budget deficits, McCain-Feingold, Patient\u2019s Bill of Rights . . . all of these issues cross the gamut of modern politics, and all of them are issues where the Bush Administration\u2019s Rovian plotting has placed it at loggerheads with standard conservatism. Even on judges, where the Administration usually wins plaudits, conservatives forget Harriet Miers, and forget that two of Bush\u2019s first ten Court of Appeals appointments were Clinton appointees. Is it really that hard to believe that the Administration would lurch to the left on the issue of guns?<\/p>\n

. . . more<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

Human Events | Mark Skousen | Jan. 22, 2008 Although there are several important cases this term, none will have the effect on the public\u2019s mind that the Supreme Court\u2019s decision in District of Columbia v. Heller will have. In that case, the Supreme Court will finally take up one of the great, undecided matters … Read more<\/a><\/p>\n","protected":false},"author":497,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"generate_page_header":"","footnotes":""},"categories":[84,79],"tags":[],"class_list":["post-2673","post","type-post","status-publish","format-standard","hentry","category-defense-of-innocence","category-freedom"],"_links":{"self":[{"href":"https:\/\/www.orthodoxytoday.org\/blog\/wp-json\/wp\/v2\/posts\/2673","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.orthodoxytoday.org\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.orthodoxytoday.org\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.orthodoxytoday.org\/blog\/wp-json\/wp\/v2\/users\/497"}],"replies":[{"embeddable":true,"href":"https:\/\/www.orthodoxytoday.org\/blog\/wp-json\/wp\/v2\/comments?post=2673"}],"version-history":[{"count":0,"href":"https:\/\/www.orthodoxytoday.org\/blog\/wp-json\/wp\/v2\/posts\/2673\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.orthodoxytoday.org\/blog\/wp-json\/wp\/v2\/media?parent=2673"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.orthodoxytoday.org\/blog\/wp-json\/wp\/v2\/categories?post=2673"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.orthodoxytoday.org\/blog\/wp-json\/wp\/v2\/tags?post=2673"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}