Linda Greenhouse reports on the "sniping" within the Administration over the Solicitor General's brief in D.C. v. Heller.
Mr. Clement’s brief embraces the individual-rights position, which has been administration policy since 2001 when John Ashcroft, then the attorney general, first declared it in a public letter to the National Rifle Association. But the brief does not take the next step and ask the justices to declare, as the federal appeals court here did a year ago, that the District of Columbia law is unconstitutional.
Not that the solicitor general’s brief finds the law to be constitutional, or even desirable. Far from it: the brief offers a road map for finding the law unconstitutional, but by a different route from the one the appeals court took. The distinction may seem almost picayune, but it is a measure of the passions engendered by anything to do with guns that Mr. Clement’s approach is evidently being seen in some administration circles as close to a betrayal.
The brief argues that in striking down the District of Columbia’s law, the United States Court of Appeals for the District of Columbia Circuit took too “categorical” an approach, one that threatens the constitutionality of federal gun laws, like the current ban on machine guns. Mr. Clement asks the justices to vacate the decision and send the case back to the appeals court for a more nuanced appraisal of the issue.
This was a fairly standard performance for a solicitor general, who has a statutory obligation to defend acts of Congress. It is routine for any solicitor general to try to steer the court away from deciding cases in a way that could harm federal interests in future cases.
But Vice President Dick Cheney was nonetheless so provoked by Mr. Clement’s approach that last month he took the highly unusual step for a vice president of signing on to a brief filed by more than 300 members of Congress that asks the Supreme Court to declare the District of Columbia law “unconstitutional per se.”
Related Posts (on one page):
- Second Amendment Sniping:
- Second Amendment Sniping:
- Administration Split on Gun Rights?
Given the author, I'd sure like to see some independent verification of that claim (ie, that it so provoked Cheney.)
Civil service reform was supposed to get rid of the evil of firing everyone on the change of administrations. But now we have a new evil. How can this be reformed so that the people can again have control of their government and not vice versa?
Bush has just rolled over and done nothing. Hopefully McCain will remove anyone who doesn't do what they are told to do and reform the whole system.
I didn't know that. I'm not even sure if I think that's a good idea.
I don't quite follow. Cheney obviously didn't like the SG's brief. Is there something about the word "provoked" that you object to?
martinned... who do you think should defend acts of Congress in court, then? It is not Congress' responsibility to take care that the laws be faithfully executed, but the President's. Enforcement (which includes defending them in court) is entirely the province of the executive branch. That branch should not decline to do so on whim alone.
@PatHMV: The question is whether the President is allowed to have his own opinion about the constitutionality of laws. For any bill that is passed during a presidency, the president can veto it if he thinks it's unconstitutional, but what about bills signed into law by previous presidents? Surely the obligation to "see that the laws be faithfully executed" does not mean that the constitution should not trump all statutes? Which is why I wonder (I'm not sure either way) whether Congress should be allowed to force the president to defend a law he thinks is unconstitutional.
In other words, to answer your question, I think maybe the President should have the option of not defending it at all. Depending on the situation, that may simply mean that the executive branch ignores the law (eg. in the case of a rule of criminal law), or that it goes undefended when attacked.
Any President has about 6,000 appointees. These people actually set policy, and are loyal to the President, not the bureaucracy.
Normally, when a new Administration takes over, one of the first orders of business is to sack all 6,000 appointees...if they have not already tendered their resignations. You MAY reappoint some, but usually to new positions. It's a matter of asserting that the new President is in control.
The Bush Adminstration was VERY slow to do this, and there are a considerable number of Clinton appointees still holding positions of authority. Add to this the natural tendency of the bureaucracy to grow, and marinate in the rabidly left-leaning atmosphere of DC, and you get a recipe for Big Trouble.
My own opinion is that the non-DOD portions of the Civil Service need to be brought under military-style discipline. You are free to despise the elected leadership, and free to quit if you can't stomach the worthless twerp in the Oval Office. But while you are employed by the Federal Government, you WILL obey elected authority. Or Else.
@Mike M.: According to The West Wing, it is actually custom for all these people to tender their resignation after every presidential election, even if the incumbent has been reelected.
We've made a lot of progress in this country in civil rights over the last 10 years, with the ridiculous "collective rights" dodge hopefully taking its last gasping breath. But after several decades of anti-gun nuts over-reading the first clause, there are still quite a few people that can't seem to read the last phrase "shall not be infringed." That last phrase is a lot clearer than the first clause, and it doesn't even limit its scope to Congress as the 1st amendment did. But still its
meaningexistence seems to have escaped the SG.Yes, that's "federal interests" vs. cititzen's right's interests.
The Bush administration is clearly responsible for the brief submitted by the Solicitor General's office. And I can see no reason to believe that Paul Clement is less conservative than Ted Olson.
I'd imagine you'd want to be wearing a suit or that the Court would at least have some kind of dress code. I know I start looking very disheveled after 18 hours or so. I couldn't see myself standing in line and managing to look presentable.
I'll remember that per se line the next time they whine about the courts being insufficiently deferential to the elected branches.
Don't see how you could legitimately interpret the 2nd amendment in such a way as to NOT make clear that many federal gun control laws are unconstitutional. That's what happens when the Court spends 69 years refusing to take any case relating to a particularly constitutional right: Unconstitutional laws accumulate.
Indeed, if I recall right, when they passed the NFA, they knew quite well it was a violation of the 2nd amendment; That's why they disguised it as a tax law.
How about bazookas? How about hand grenades? How about nuclear warheads?
The fundamentalist zealotry of the true gun-nuts leaves me fundamentally nauseated.
So, how would you feel about a federal law prohibiting movie producers from making violent movies? Or are you one of those First Amendment zealots?
Federal law ALREADY permits the ownership of machine guns. Just bring about $10K and a squeaky-clean criminal record. Bazookas? Also legal...but you'll do the paperwork for every single round, provided that you can find them for sale. Nukes? Let's get serious...the Department of Defense is under no obligation to sell you one. And making your very own nuclear enrichment facility is going to be VERY expensive.
You might want to familiarize yourself with existing law before trying to put up a hysterical strawman argument.
This is a nice example of the corrosive effect of mindless conservative trashing of the media. Linda Greenhouse is a reporter of over 30 years experience. There's no reason to think that her reporting is inaccurate.
But conservatives-- who don't have the first inkling of how the news media actually operates-- assume that she must be wrong unless her story is corroborated.
It's bad enough to be ignorant, it's worse to wallow in it.
Except that her reporting has been inaccurate in the past and she has admitted that she has a strong bias on some issues.
The Clinton Administration also converted a large number of their political appointees into permanent government employees before departing.
You don't even need a special license or permit. You need only complete a Form 4 application, which basically transfers the machine gun from a Class 3 licensed dealer to a buyer (after a criminal background check) and obligates the buyer to pay a one-time tax of $200. The buyer must also suppy 2 photos and fingerprints.
The weapons must have been made prior to 1986. Also, it is strictly forbidden to transform a semi-automatic weapon into a fully automatic weapon.
On extremely rare occasions fully automatic firearms have been used in crimes but they have not been any of the many legally owned ones. Generally they have been weapons stolen from USG armories.
In the US, civilians can also legally own cannons, anti-tank weapons, even fighter jets. It will start running into money if you aren't careful, hehehehe...
http://www.youtube.com/watch?v=agR82hiDx9Q&feature=related
1) She is reporting the same thing Novak reported.
2) She has admitted she has opinions on things, most particularly abortion (for which she has been rightly criticized). I have neither heard nor read her express an opinion on guns. You might assume you know her personal opinion on the issue (as if that matters) but you might be wrong.
3) Can someone explain why the "Democratic bureaucracy" is relevant here at all since Clement is a Bush appointee and one with impeccable conservative credentials (at least until now). His office, his brief, his argument -- not some mid-level career DOJ lawyer.
And there's reason to be skeptical of what Novak reported.
I agree. My point was that attributing this skepticism to Greenhouse's politics is silly when Novak is saying the same thing. There is reason to believe they are both wrong, but it is not due to bias.
It has been legal to own fully automatic firearms since their invention some time in the 1850's. For the last 70 years or so their ownership has been regulated.
You don't need a federal regulation to make owning something legal, it's worth remembering.
So I'll repeat my rhetorical question: If someone has the means to own a bazooka or a nuclear warhead should the government have any regulations in place to require registration, background check, etc.?
Does any indivicual U.S. citizen have the unregualated right to saw off the end of his or her shotgun, converting it from a hunting implement to a murder implement?
Huh? Have you gotten your amendments mixed up?
The government already does. It's called the National Firearms Act, in place since 1934. Please educate yourself.
Troll. There is no such thing as a cop killer bullet. You have been scammed by the gun prohibitionists.
So, the end of a shotgun contains a hunting implement? And the first 17 inches are pure murder, but the last eighteenth inch contains hunting? Wow! Who knew!
You sound like such a caricature of a gun prohibitionist that I wonder if you are actually a gun rights activist masquerading as a prohibitionist.
Contrary to your argument (unless you consider defense of the home to be murder), a sawed-off shotgun arguably has great usefulness as a self-defense weapon. Full length shotguns maintain a relatively tight pattern; a shortened barrel provides the user with the ability to hit a close range target with little thought to aim - thus providing a significant advantage (as compared to a pistol, rifle, or standard shotgun) to a panicked, unskilled individual, i.e., a woman can just point it down the hall or across the bedroom. Moreover, the pellets will have greatly reduced penetrating power due to their small size and slow speed as compared to other weapons, thus helping to protect against injuries to those in adjoining rooms or buildings.
As a legal matter, the core holding of Miller, - that sawed-off shotguns have no military purpose - is belied by their historical use in the trenches of WWI and their current inclusion on the U.S. Munitions List as "combat shotguns." I would also ask a far more fundamental philosophical question: What right do you or the government have to tell any other citizen what tools they can or cannot own?
"THE" government? I would maintain that the federal government has no enumerated power to ban anything, anything at all, or to regulate ownership. States, on the other hand... I don't believe nuclear warheads can be considered "arms".
And justly so: The Second amendment is quite clear, the historical evidence overwhelmingly one sided. If the Supreme court upholds the DC gun ban it will be an unambiguous case of the Court deciding to LIE about the meaning of the Constitution because it doesn't like what it says. Judicial malfeasance of the highest order.
Let's be clear about this: If the Supreme court rules that the phrase, "the right of the People" does not refer to a right, of the people, and that the phrase "shall not be infringed" does not mean that said right of the people... shall not be infringed, it won't be the individual rights interpretation of the 2nd amendment that ends up delegitimized. It will be the judiciary.
It's Ted Kennedy! You can tell by the watery footprints on the floor!!
Isn't that his job? To serve as the Government's advocate?
The phrasing imputes a motivation that doesn't appear to be justified. Cheney signed his name to a brief; what evidence does she present that the SG brief was what led Cheney to respond?
I suggest you might google that, as I think there's substantial evidence to the contrary.
But the story of media bias and inaccuracy is all about liberals like Greenhouse having it in for conservatives. Come on!
Err, wrong blog. We're Libertarians here.
According to the Solicitor General's website the the SG is obliged to "conduct and argue cases coming by appeal to the Supreme Court [and] other cases in which the United States is interested." Apparently, even solicitor generals have trouble understanding what this obligation entails. For instance, the official history of the Solicitor General's office has this to say:
If the Solicitor General's job is to argue for the US's interest, and if Lehmann is right that "[t]he United States wins its point whenever justice is done its citizens in the courts" then Greenhouse's claim is positively Orwellian.
Anybody know if I'm missing anything?
Well, when all you've got is shrill hysterics...
Dilan, I just threw up a little in the back of my mouth.
To join the National Bazooka Association, send $40 or 100 bazooka joe comics to box 164, 49229-0164.
@arbitraryaardvark: Thank's for the article. Before reading it, I would say that, to the extent there is disagreement between the political branches, the SG's client is the President.
Still reading, but just noting that the article gives one precedent where the AG used the Federal Intervention Statute to intervene against the constitutionality of a statute. The case is Simkins v Moses H. Cone Memorial Hosp., 211 F.Supp 628 (MDNC 1962), revd. 323 F.2d 959 (4th Cir 1963), cert denied.