Back in the spring, the Solicitor General's Office of the Justice Department took a lot of heat for taking a middle-ground position on the Second Amendment in DC v. Heller. As I blogged at the time, the heat seemed misdirected to me: After all, the SG has an institutional client to represent, and a lawyer can't ignore the needs of his client. The Justices certainly realize that. But with Heller now decided, I wonder if the SG's Heller brief also looks like a pretty good tactical move from a pro-gun rights perspective.

  Consider that the case ended up being extremely close: The vote was 5-4, with not a vote to spare. Taking a harder line position might have alienated that fifth vote. Plus, the majority opinion did not draw any disagreement from the Justices voting to affirm with its statement that traditional forms of gun control like felon-in-possession laws were left undisturbed by the Court's ruling, suggesting that none of the Justices were interested in going so far. True, the Court did not decide the standard of review and then remand, as the SG's brief recommended: Instead the Court decided the issue without needing to announce the standard. But from a purely tactical perspective, it seems to me that the SG's brief may have been more savvy than many people gave it credit for being. The middle ground brief not only didn't hurt the pro-gun rights side but quite possibly helped it.