In January, former Attorneys General Janet Reno and Nicholas Katzenbach, joined by 11 former important US DOJ lawyers filed a brief in support of the DC handgun ban. The brief argues that from the 1930s until 2001, the US Department of Justice had the position that the Second Amendment does not guarantee an individual right. The brief argues that the DOJ supported the “collective right” theory, and appears unaware that this theory has been abandoned even by gun control groups and their academic allies. (The replacement is “narrow individual right,” a right which applies only to persons actually on duty in a state militia.)
Today a counter-brief was filed on behalf of two former Attorneys General (Edwin Meese and William Barr), two former Acting Attorneys General (Stuart Gerson, under Clinton; and Robert Bork, under Nixon), and several other former high-ranking DOJ lawyers.
The brief begins by describing three different cases (under Presidents Andrew Johnson, Ulysses Grant, and Benjamin Harrison) in which the the US DOJ took the litigation position that the Second Amendment is a broad individual right. Next, the brief quotes FDR’s AG Homer Cummings, testifying in support of the proposed National Firearms Act of 1934, who explained that the Act was not a violation of the Second Amendment because it taxed and registered machine guns and short shotguns, but did not ban them. The Reno brief had attempted to claim that Cummings was discussing the scope of congressional Article I power, but omitted the fact that Cummings was answering a Representative’s question about the NFA “escaped” from the “provision in our Constitution denying the privilege to the legislature to take away the right to carry arms.”
There then follows an intricate analysis of positions in DOJ briefs in future years, Office of Legal Counsel memoranda, and Presidential bill-signings. The argument is that, contrary to the Reno brief’s claims, the Executive Branch position was not consistent with the position of Attorney General Katzenbach that there is no individual right to arms.
Part II responds to arguments raised by the Reno brief, and by the current Solicitor General, that the rule announced by the D.C. Circuit, invalidating the handgun ban, would threaten federal laws against possession of guns by convicted felons, or against machine guns. Part III urges the Court to confine its ruling to DC’s ban on handguns in the home, rather than addressing restrictions on uncommon guns.
Both of the former DOJ briefs might be viewed in a broader context. One of the officials in the Reno brief is former Solicitor General Seth P. Waxman. On Aug. 22, 2000, Waxman wrote a letter affirming the position which the DOJ had taken in the Fifth Circuit’s Emerson case, that the Second Amendment is no bar to the federal government taking away people’s guns. Indeed, at oral argument before the Fifth Circuit, the DOJ position had been the Second Amendment does not even prevent the disarmament of an on-duty militiaman. Waxman became the first Solicitor General in history to have his words reprinted on presidential campaign billboards. Thanks in part to the NRA publicizing Waxman’s words, George Bush won narrow victories, and thus the election, in strongly pro-gun states such as West Virginia. The results of the 2000 election represent “a constitutional moment” repudiating the Waxman/Reno view of the 2d Amendment–just as an overly restrictive view of the 1st Amendment was repudiated by the public in the election of 1800 (which also was very close, and was contested for months after the polls closed). Today, even Senator Hillary Clinton has moved away from the Reno/Waxman position; in the final Nevada debate, she stated: “You know, I believe in the Second Amendment. People have a right to bear arms.”