Bush Does Care About the Second Amendment, Just Not Very Much


Robert Novak reports that "disorganization and weakness in the eighth year of [Bush's]presidency" are responsible for the bizarre split within the Bush administration over whether the Supreme Court should uphold the D.C. Circuit decision overturning the District of Columbia's gun ban. To the dismay of gun rights advocates, Solicitor General Paul Clement is asking the Court to send the case back to the D.C. Circuit to consider whether the District's laws can withstand "intermediate scrutiny" under the Second Amendment. Vice President Dick Cheney, meanwhile, has joined 55 senators and 250 House members (in his capacity as president of the Senate) in a brief that urges the Court to uphold the D.C. Circuit ruling, saying that "the District's prohibitions on mere possession by law-abiding persons of handguns in the home and having usable firearms there are unreasonable per se" and that "no purpose would be served by remanding this case for further fact finding or other proceedings." Novak claims the president agrees with Cheney:

The president and his senior staff were stunned to learn, on the day it was issued, that Clement's petition called on the high court to return the case to the appeals court….The president could have ordered a revised brief by Clement. But under congressional Democratic pressure to keep hands off the Justice Department, Bush did not act….

While [Cheney's] unprecedented vice presidential intervention was widely interpreted as a dramatic breakaway from the White House, longtime associates could not believe Cheney would defy the president. In fact, he did not. Bush approved what Cheney did in his constitutional legislative branch role as president of the Senate.

Lord knows Novak's sources are much better than mine, but I'm not sure I buy this. If Bush cared enough about the issue, he could and would have intervened. This part is even more suspect:

Bush finds himself left of Democratic presidential candidate Sen. Barack Obama….Sen. Obama has weighed in against the D.C. law, asserting that the Constitution confers individual rights to bear arms—not just collective authority to form militias.

As I pointed out in my column a few weeks ago, Obama has specifically cited D.C.'s ban as an example of gun control that should be upheld notwithstanding the individual right to keep and bear arms. In this week's column, I explain why that position is so hard to defend.

Clement's brief is here (PDF). The congressional brief signed by Cheney is here (PDF). Last month Brian Doherty noted an op-ed piece criticizing the Justice Department's position by Cato Institute legal scholar Bob Levy, who spearheaded (and financed) the gun ban challenge. The Goldwater Institute gets into more detail here (PDF).