pageok
pageok
pageok
Second Amendment Sniping:

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."

Charlie (Colorado) (mail):
<i>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."</i>

Given the author, I'd sure like to see some independent verification of that claim (ie, that it so provoked Cheney.)
3.17.2008 11:15am
Truth Seeker:
Our federal government, expecially the State Department, CIA and Department of Justice (not to mention environmental agencies) are really infected with Democratic partisans who thwart the will of an elected president.

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.
3.17.2008 11:18am
TerrencePhilip:
And they said old Novak had lost it, till "confirmation" came from the Paper of Record.
3.17.2008 11:20am
Adam J:
Truth Seeker- get a grip, the position of a solicitor's generals brief in a supreme court case isn't determined by career government employees.
3.17.2008 11:38am
David M. Nieporent (www):
I believe your introductory line is wrong. Rather than saying
Linda Greenhouse reports on the "sniping" within the Administration over the Solicitor General's brief in D.C. v. Heller.
it should say
Linda Greenhouse "reports" on the sniping within the Administration over the Solicitor General's brief in D.C. v. Heller.
3.17.2008 11:45am
therut:
Seems to me a majority of Congress believes the law should be struck down. Why all the wringing of hands over doing so?
3.17.2008 11:48am
martinned (mail) (www):
[The] solicitor general (...) has a statutory obligation to defend acts of Congress.

I didn't know that. I'm not even sure if I think that's a good idea.
3.17.2008 12:04pm
Jacob (mail):
Given the author, I'd sure like to see some independent verification of that claim (ie, that it so provoked Cheney.)
This seems like the least objectionable part of the piece. The use of "sniping" is a fairly hacky (but predictable in newspapers) attempt at being clever. The characterization of how standard the SG's practice is can probably be quibbled with. But isn't it intuitive that it was the fact that the SG didn't go far enough that provoked the VP (and many others) to join the Amicus? Is it the use of the possibly-loaded "provoked" that bugged you?
3.17.2008 12:06pm
MW:
Charlie (Colorado):

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?
3.17.2008 12:07pm
PatHMV (mail) (www):
therut... because a majority of Congress also appears unwilling to take the action which they constitutionally COULD take and just pass legislation on their own removing the gun ban in D.C.

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.
3.17.2008 12:14pm
Sam Speer:
Is there going to be an post-Heller after party?
3.17.2008 12:18pm
Bob from Ohio (mail):
therut has an excellent idea. Congress can just overule the ban per its power of control over DC. It would make the case moot. Perhaps a filibuster in the Senate but there should be 11 Dems worried enough to support cloture.
3.17.2008 12:19pm
alias:
Perhaps he signed on to the brief signed by members of Congress because he's not part of the executive branch.
3.17.2008 12:22pm
martinned (mail) (www):
L.S.,

@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.
3.17.2008 12:27pm
Mike M. (mail):
Adam J., Truthseeker is right.

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.
3.17.2008 12:47pm
Rock Chocklett:
How difficult will it be to get in to hear the announcement of the Court's ruling?
3.17.2008 12:49pm
Rock Chocklett:
Sorry, misplaced post.
3.17.2008 12:50pm
martinned (mail) (www):
L.S.,

@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.
3.17.2008 12:54pm
Kazinski:
The DC gun ban is not an act of Congress, nor does the SG brief advocate that it be upheld. But it doesn't advocate that the 2nd Amendment be enforced with the same rigor as our other constitutional rights either.

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 meaning existence seems to have escaped the SG.
3.17.2008 12:54pm
glangston (mail):
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.





Yes, that's "federal interests" vs. cititzen's right's interests.
3.17.2008 1:02pm
frankcross (mail):
Mike M, I believe George Bush has been able to choose his Solicitor General
3.17.2008 1:08pm
Doc W (mail):
Well, I guess even Dick Cheney couldn't get through 8 years as VP without doing something right.
3.17.2008 1:16pm
Proud to be a liberal :
Paul Clement was appointed to serve as Solicitor General by President Bush in March 2005; he succeeded Ted Olson. The Solicitor General's office is located in the Department of Justice; the Attorney General is his supervisor.


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.
3.17.2008 1:20pm
Cory J (mail):
What are they wearing? How would you shower beforehand?

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.
3.17.2008 1:36pm
Cory J (mail):
Sorry: I posted in the wrong thread. I had two tabs open and clicked on the wrong one.
3.17.2008 1:37pm
Cornellian (mail):
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."

I'll remember that per se line the next time they whine about the courts being insufficiently deferential to the elected branches.
3.17.2008 1:58pm
Brett Bellmore:

one that threatens the constitutionality of federal gun laws


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.
3.17.2008 2:00pm
Gordo:
I guess there are a few commenters to this post who think that federal laws banning personal ownership of automatic machine guns SHOULD be overturned.

How about bazookas? How about hand grenades? How about nuclear warheads?

The fundamentalist zealotry of the true gun-nuts leaves me fundamentally nauseated.
3.17.2008 2:05pm
PersonFromPorlock:

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?
3.17.2008 2:21pm
Mike M. (mail):
Gordo, let go of the hysteria.

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.
3.17.2008 2:29pm
Dilan Esper (mail) (www):
Given the author, I'd sure like to see some independent verification of that claim (ie, that it so provoked Cheney.)

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.
3.17.2008 2:50pm
Lonely Capitalist (mail):
There's no reason to think that her reporting is inaccurate.

Except that her reporting has been inaccurate in the past and she has admitted that she has a strong bias on some issues.
3.17.2008 2:58pm
davod (mail):
"Any President has about 6,000 appointees. These people actually set policy, and are loyal to the President, not the bureaucracy."

The Clinton Administration also converted a large number of their political appointees into permanent government employees before departing.
3.17.2008 3:08pm
davod (mail):
"@Mike M.: According to The West Wing..." Well it must be true then.
3.17.2008 3:09pm
SmilingG (mail):
Mike M. is correct, and this underscores the sloppy, ignorant reporting of Greenhouse. It has been legal to own fully automatic firearms in most states of the USA for at least the last 70 or so years. Thousands of people have legally owned them over that period, and, so far as I know, not even one has ever been used in a crime.

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
3.17.2008 3:13pm
tarheel:
Lonely Capitalist and others:

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.
3.17.2008 3:14pm
alias:
1) She is reporting the same thing Novak reported

And there's reason to be skeptical of what Novak reported.
3.17.2008 3:21pm
tarheel:

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.
3.17.2008 3:23pm
SmilingG (mail):
More fun with legally owned machine guns, artillery pieces, etc: http://www.youtube.com/watch?v=t6yyQ_328mA&feature=related
3.17.2008 3:24pm
nonlawyer:
To the Greehouse bashers: Who do you suggest as the reporter for those of interested in lieu of Linda Greenhouse?...And why
3.17.2008 3:32pm
Brett Bellmore:

It has been legal to own fully automatic firearms in most states of the USA for at least the last 70 or so years.


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.
3.17.2008 3:37pm
Gordo:
Of course, a true first amendment zealot objects not only to gun ownership prohibitions, but also gun ownership regulations.

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.?
3.17.2008 3:46pm
Gordo:
Does any individual U.S. citizen have the unregulated right to own "cop killer" bullets for their guns?

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?
3.17.2008 3:48pm
Adam J:
Mike M.- "Adam J., Truthseeker is right." Thank you so much for correcting my mistake... silly me to think that the Solicitor General was a Bush appointee who ran his own office and wasn't controlled by his employees.
3.17.2008 3:50pm
Kevin P. (mail):

Gordo:
Of course, a true first amendment zealot objects not only to gun ownership prohibitions, but also gun ownership regulations.

Huh? Have you gotten your amendments mixed up?


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.?

The government already does. It's called the National Firearms Act, in place since 1934. Please educate yourself.
3.17.2008 3:54pm
Kevin P. (mail):

Gordo:
Does any individual U.S. citizen have the unregulated right to own "cop killer" bullets for their guns?

Troll. There is no such thing as a cop killer bullet. You have been scammed by the gun prohibitionists.


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?

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.
3.17.2008 4:03pm
AnonLawStudent:
Gordo,

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?
3.17.2008 4:04pm
TMac (mail):
Cop killer bullet: Any bullet fired from any type or class of firearm (even air guns) that, when fired at a cop, strikes him in a vital organ causing his demise.
3.17.2008 4:18pm
Brett Bellmore:

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.?


"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".
3.17.2008 4:23pm
markm (mail):
ALS, actually Miller remanded the case to a lower court for hearings on the facts affecting whether a sawed-off shotgun was a "militia" weapon. That follow-up didn't occur because Miller was dead. Miller didn't win or lose. What we really have in the Miller decision is an inconsistent collection of dicta about a moot case.
3.17.2008 4:26pm
J. F. Thomas (mail):
Man, you people are going to be pissed if the SC upholds the DC gun ban.
3.17.2008 4:47pm
Brett Bellmore:

Man, you people are going to be pissed if the SC upholds the DC gun ban.


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.
3.17.2008 4:58pm
Christopher Cooke (mail):
Dick Cheney is apparently a noted constitutional law scholar and Second Amendment expert, in addition to being a genius about military strategy, nation-building, and the Middle East. I thank God every day he is calling the shots for our country.
3.17.2008 5:39pm
tarheel:
The best advice I ever got on brief writing is that the true clarity of a legal issue is inversely proportional to the number of times you insist that it is in fact "quite clear."
3.17.2008 5:56pm
Glenn W. Bowen (mail):

Gordo:
Does any individual U.S. citizen have the unregulated right to own "cop killer" bullets for their guns?

Troll. There is no such thing as a cop killer bullet. You have been scammed by the gun prohibitionists.


It's Ted Kennedy! You can tell by the watery footprints on the floor!!
3.17.2008 6:10pm
Richard Fagin (mail):
I don't think the Solicitor General has an obligation to defend acts of the D.C. City Council. I do not believe the law challenged in the Heller case is in fact an act of Congress. If I am correct then the Solicitor General was under no obligation to challenged the findings of the U.S. Court of Appeals.
3.17.2008 6:52pm
Charlie (Colorado) (mail):

I didn't know that. I'm not even sure if I think that's a good idea.


Isn't that his job? To serve as the Government's advocate?


Cheney obviously didn't like the SG's brief. Is there something about the word "provoked" that you object to?


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?


Linda Greenhouse is a reporter of over 30 years experience. There's no reason to think that her reporting is inaccurate


I suggest you might google that, as I think there's substantial evidence to the contrary.
3.17.2008 7:47pm
Dilan Esper (mail) (www):
Today, Bill Kristol-- whom I bet most of the conservatives here trust with respect to facts without question-- made a huge, game-changing error in his column, a bigger error than Greenhouse has ever made in 30 years of journalism.

But the story of media bias and inaccuracy is all about liberals like Greenhouse having it in for conservatives. Come on!
3.17.2008 8:00pm
Lonely Capitalist (mail):
most of the conservatives here

Err, wrong blog. We're Libertarians here.
3.17.2008 8:45pm
Angus Lander (mail):
It is not clear to me that Greenhouse is right that the solicitor general has a "statutory obligation to defend acts of Congress."

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:


Since the early 1950s, relief from non-litigation responsibilities has left modern-day Solicitors General free to concentrate on the "interest of the United States" with respect to litigation. That concept is elusive, and it is often difficult to discern just what position the interest of the United States supports. But so long as Solicitors General apply the principle best articulated by my predecessor Frederick Lehmann -- that "[t]he United States wins its point whenever justice is done its citizens in the courts" -- and so long as Solicitors General maintain fidelity to the rule of law, it will continue to be true, as Francis Biddle wrote following his tenure in the office, that "[t]he Solicitor General has no master to serve except his country."


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?
3.17.2008 8:54pm
juris imprudent (mail):
You might want to familiarize yourself with existing law before trying to put up a hysterical strawman argument.

Well, when all you've got is shrill hysterics...
3.17.2008 9:18pm
juris imprudent (mail):
Bill Kristol-- whom I bet most of the conservatives here trust with respect to facts without question

Dilan, I just threw up a little in the back of my mouth.
3.17.2008 9:24pm
arbitraryaardvark (mail) (www):
Who is the SG's client? Is it the legislative branch, the president, the constitution, the people, his or her personal preferences? I'm not sure. Here is a law review article on point, tl;dr. The article references 28 usc 505, 517, 518, which don't support Greenhouse's contention that the SG is required to defend acts of congress regardless of their constitutionality. If she were writing about my state's AG, she'd be right. The Indiana AG's office is a creation of the legislature (unlike most states where it's constitutional)and sees its role as the legislature's counsel, so nobody speaks for the constitution. I don't know whether it's that way at the federal level, citation needed.
To join the National Bazooka Association, send $40 or 100 bazooka joe comics to box 164, 49229-0164.
3.17.2008 11:47pm
martinned (mail) (www):
L.S.,

@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.
3.18.2008 10:04am
martinned (mail) (www):
L.S.,

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.
3.18.2008 10:20am