In a brief filed last week with the Supreme Court, the Bush administration paid lip service to the idea that Americans have an individual right to possess a firearm. But the practical implications of its argument show the government is speaking with a forked tongue.
Last year, the U.S. Court of Appeals for the District of Columbia overturned a 1976 D.C. law that banned residents from possessing handguns.
The court not only ruled that the D.C. statute violated the Second Amendment right to bear arms, it went a step further and proclaimed the right was an individual, not a collective, one — an argument that has never been adjudicated.
The Supreme Court has agreed to hear the case in March and issue what could be a landmark ruling on the meaning of the Second Amendment, namely: Should its freedom be interpreted the same as those guaranteed in the rest of the Bill of Rights?
The Justice Department weighed in by affirming the appeals court’s belief in the individual right to bear arms. It also correctly pointed out that like other provisions of the Constitution that secure individual rights, such as free speech, the Second Amendment is not absolute. Just as you don’t have the freedom to falsely yell “fire” in a crowded theater without consequences, the Constitution allows for “reasonable” regulation of firearms — for example, prohibiting convicted felons from possessing firearms.
However, the solicitor general’s brief argues that the appeals court applied the wrong standard in determining whether government has a legitimate reason to regulate firearms. The justices ruled gun regulations must withstand “strict scrutiny,” the highest judicial standard that requires legislation to be narrowly tailored using the least-restrictive means to achieve a compelling governmental interest. There was nothing narrow about D.C.’s blanket ban on guns.
The Bush administration wants the Supreme Court to apply what the brief calls “a more flexible standard of review,” i.e., a much weaker restriction on government power.
Basically, the government is all for individual rights — so long as it has wide latitude to limit them. The Department of Justice is concerned that if the Supreme Court upholds the Court of Appeals ruling, many federal gun regulations will be imperiled. The DOJ supports freedom, but it’s not going to cut its own throat to provide it.
News stories noted several favorable reactions to the DOJ brief from gun-control advocates. Peter Nickles, the District’s acting attorney general, told The Washington Post that the brief was a “somewhat surprising and very favorable development.” That speaks volumes about where the administration stands on the issue.
Having agreed that the Second Amendment protects an individual right, the DOJ turns around and argues that it deserves less protection than the Constitution’s other individual rights.
Once again, the Bush administration has misfired on a key constitutional issue.