Thoughts on the Eve of Argument in D.C. v. Heller

posted by Mike O'Shea

1. Cruz v. Clement. If you believe Robert Novak, the Solicitor General’s split-personality amicus brief in Heller resulted from wrangling between the Office of Legal Counsel (which favored a robust individual right) and career attorneys in DOJ (who didn’t).

What made the brief disappointing to gun rights supporters was not the DOJ’s defense of the constitutionality of current federal gun control statutes — what else to expect? — but that the brief didn’t even concede the unconstitutionality of D.C.’s flat ban on handguns and draconian restrictions on the use of long guns for self-defense. Instead, it asked the Supreme Court to reverse and remand the D.C. Circuit’s judgment to the lower courts for more analysis and/or factfinding.

You can imagine the effect of that request on those who have waited decades for a moment when the Supreme Court finally seems poised to render a square decision applying the Second Amendment right to arms. If DOJ simply wanted to defend existing federal laws, it could have filed a brief that asked the Court to adopt a deferential standard of review (to protect existing federal statutes from attack), but also to affirm the D.C. Circuit’s judgment, on the ground that D.C.’s challenged gun laws fail any level of heightened constitutional scrutiny. Most gun rights proponents would still disagree with the call for deferential scrutiny, but the reaction would have been a lot more muted absent the call for remand.

The most plausible explanation I’ve heard points out that the Department of Justice, in the person of the U.S. Attorney for the D.D.C., acts as the “local” prosecutor in the District of Columbia. Thus, it enforces D.C.’s gun laws itself. Presumably the staff at Justice resisted a litigating position that would involve admitting the unconstitutionality of laws that DOJ’s own Assistant U.S. Attorneys are currently enforcing in prosecutions.

Novak’s column goes on to claim that SG Paul Clement will depart from the brief during his fifteen minutes of oral argument on Tuesday, taking a more pro-rights stance. We’ll see. To make a difference, Clement would have to concede the unconstitutionality of the challenged D.C. laws to the Justices, abandoning the brief’s argument that a remand is proper. (The Justices would probably then ask him why DOJ didn’t move to amend its brief.)

Such a last-minute surprise seems unlikely. If it happened, it would be a twist in one of the intriguing plotlines of this Supreme Court Term: Cruz v. Clement. Both of the biggest constitutional cases of the term — Heller and Medellin v. Texas — pit U.S. Solicitor General Paul Clement against Texas Solicitor General R. Ted Cruz, who helmed the pro-rights Heller amicus brief of Texas and thirty other states. (Heller is a bigger case than Medellin, but Medellin is still huge.)

Most legal conservatives and libertarians are rooting for Cruz in both cases. Cruz is defending positions that correspond well to principled, limited-government conservatism, while Clement is advocating the positions of an executive branch (in the form of BATFE in Heller) with a notoriously inflated view of its power and prerogatives. DOJ’s Heller brief equivocates. Texas’s brief goes beyond expectations. Texas not only says the words DOJ would not say — “the judgment of the Court of Appeals should be affirmed,” 31 States Br. at 36 — but actually endorses incorporation of the Second Amendment against the states. See id. at 23 n.6. In effect, Texas and the other thirty states are publicly vowing never to adopt gun laws like D.C.’s, and they are asking the federal courts to hold them to their promise. That is a big deal.

Of course, the U.S. Solicitor General’s job is to represent the federal government, and his superiors include the President and the Attorney General. Lawyers often chafe at having their own positions identified with the ones they advocate for their clients. Fair or not, it is hard to see how the events of this Term can fail to increase Ted Cruz’s stature with legal conservatives, and perhaps diminish Clement’s.

2. Why D.C. really has no state amici. Speaking of the stances of the states in D.C. v. Heller, take another look at the brief filed by New York and four other states as “amici curiae in support of petitioners.”

I missed something significant about this brief when I first read it. Several of these states previously joined a pro-control amicus brief filed at the D.C. Circuit level, when the case was called Parker v. D.C.. That brief, written by Massachusetts, aggressively rejected any individual right under the Second Amendment: “Appellants and their amici are simply wrong that the Second Amendment provides an individual right to bear arms. . . . An individual right to possess firearms … is not, and has not been, a federal constitutional right.” States and Cities Brief (Massachusetts et al.), Parker v. D.C., at 2.

Now, however, in the Supreme Court, with New York at the helm, the five states’ brief sharply minimizes the “no individual right” argument. They simply argue the Amendment should not be applied to the states. The resulting brief is short — only thirteen pages of argument. “Come on, O’Shea,” you might respond, “that just reflects the division of labor among the pro-D.C. amici.” I don’t think so. Because here’s what the five states now say about the D.C. gun ban, on the first page of their Supreme Court brief:

The Amici States do not defend the specific handgun ban at issue in this case and do not as a matter of public policy endorse it[.] [However,] preserving state sovereignty in this area is of paramount importance to the States.

Brief of N.Y. et al. at 1; see also id. at 2 (repeating that “the Amici States do not endorse the handgun ban at issue,” but do “urge this Court to reaffirm … [that] the Second Amendment … impos[es] restrictions only on the federal government.”). That is a big shift from these states’ stance in the circuit court, where they made no effort to distance their laws from D.C.’s; just the opposite. Cf. States and Cities Br. (Massachusetts), Parker v. D.C., at 12-13 (”Many states bar gun possession generally, allowing handgun ownership only under certain individual circumstances. … There is little basis for distinguishing the District of Columbia.”).

The pro-control state amici now rely on a theme of federalism and state sovereignty, asking the Court to stick by its 19th-century case law suggesting that the Second Amendment does not bind the states. They cite the Rehnquist Court’s landmark federalism precedents in U.S. v. Lopez (1995) and Printz v. U.S. (1997). In both of these cases, individuals brought successful constitutional challenges to federal gun control laws, on the ground that they exceeded Congress’s enumerated legislative powers and thereby infringed on areas properly left up to the states. See N.Y. Br. at 8 (Lopez and Printz show that “the Framers left the primary responsibility for firearms regulation with the States.”). I wonder what BATFE’s lawyers think of that passage in New York’s brief?

Since I’ve emphasized the DOJ’s refusal to ask the Supreme Court to affirm the D.C. Circuit’s judgment, I should point out that New York and the other pro-D.C. state amici do not ask the Supreme Court to reverse that judgment. Instead, the last words of New York’s brief are narrowly focused: “This Court should reaffirm the principle that the laws of the several States are outside the domain of the Second Amendment.” N.Y. Br. at 14. But since D.C. is a federal enclave, not one of “the several States,” the Court could issue an opinion that grants New York’s request (by expressly rejecting incorporation of the Second Amendment) while still invalidating D.C.’s challenged gun laws as violative of the Second Amendment. That would not be an ideal outcome for many gun rights supporters, but it certainly isn’t an outcome desired by D.C. either. Thus, there’s a sense in which the number of states that have fully endorsed D.C.’s position in this case is zero, whereas all 31 of Heller’s state amici not only endorse his position but go beyond it by calling openly for Second Amendment incorporation.

3. Nervous excitement; Heller as the 21st-century acid test of popular constitutionalism. I’ll be in the District of Columbia for the next couple of days. Alas, I don’t have a seat at the Heller oral argument. Good thing the Court is releasing the argument audio the same day! I’ll probably be doing a media appearance while there (internet/radio). More later.

The butterflies in my stomach have already begun. I’m sure I’m not alone. This is not only the most important Second Amendment case in American history; not only the most important constitutional case so far to come before the young Roberts Court; but I think it will also prove a fundamental test of the health of popular constitutionalism. By “popular constitutionalism” I don’t mean that the individual rights view of the Second Amendment lacks conventional legal and scholarly arguments — just the contrary, an extraordinary array of both has been mustered in this case. But claimed constitutional rights (such as the First Amendment freedom of expression), backed by credible legal arguments, often come to be taken seriously by the judiciary through the political efforts of elites — often one part of the elite in contention with other parts.

That’s not what’s happened with the Second Amendment right to arms. Its motive force in contemporary America is almost purely populist. That doesn’t mean everyone agrees, but there is little political motive for elites to support it except insofar as it reflects the political convictions of the voting public. Indeed, elites — academic, corporate, journalistic, judicial, executive — can often seem to be congenitally allergic to the assertion of this right. At almost every level, for the past 40 years, one sees the pattern: State governments are usually more sympathetic to arms rights than federal governments; small towns and rural communities more than metropolises; small business more than big business; radio more than TV (and internet more than either); elected legislators more than executives and judges.

The institutional question Heller raises is: under near-ideal conditions — strong textual and historical arguments, intensely motivated proponents, a sustained record of success in the state legislatures — can a populist claim to a constitutional right prevail in the courts? That is, can the claimants obtain judicial acceptance and real enforcement of the claimed right? Or will the lesson of Heller be that in today’s America, the generation of judicially enforced constitutional rights is strictly an elite affair, with popular support perhaps also necessary to some degree, but never sufficient to obtain recognition?

P.S.: The image attached to this post isn’t of sunset, but dawn.

 March 17, 2008 at 12:37 am   Posted in: Constitutional Law, Supreme Court    Print This Post

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