The Discerning Texan

Today's Wall Street Journal had an excellent op-ed on Solicitor General Paul Clement's ridiculous "friend of the court" brief in the Heller case:

The amicus brief filed by Solicitor General Paul Clement agrees with this part of the D.C. Circuit ruling. But then it goes on a bender about violent felons wielding machine guns, urging the Supreme Court to reject the legal standard applied by Judge Silberman. Instead, the SG invites the Supremes to hand down an elaborate balancing test that would weigh "the strength of the government's interest in enforcement of the relevant restriction" against an individual's right to bear arms.

This is supposedly necessary because of this single phrase in Judge Silberman's 58-page ruling: "Once it is determined -- as we have done -- that handguns are 'Arms' referred to in the Second Amendment, it is not open to the District to ban them" (our emphasis). This has alarmed the lawyers at Justice, eliciting their dire warnings that somehow Judge Silberman's logic would bar the regulation of M-16s, felons with guns, or perhaps even Sherman tanks.

This is bizarre. The key word in Judge Silberman's opinion is "ban." His opinion readily concedes that regulating guns and banning them are not the same. He explicitly notes that felons may be barred from owning guns without implicating the Second Amendment and points out that weapons of a strictly military nature are not encompassed by the right to bear arms. Nothing in Judge Silberman's opinion precludes reasonable restrictions on weaponry.

More ominously, if Mr. Clement's balancing test were adopted by the High Court, it would be an open invitation to judges nationwide to essentially legislate what is or isn't proper regulation. The beauty of Judge Silberman's standard is that it carved out wide Constitutional protections for arms -- such as "most" hand guns and hunting rifles -- that Americans now own and that might reasonably have been anticipated by the Founders. The Bush Justice Department is instead inviting the Supreme Court to uphold an individual right to bear arms in principle but then allow politicians and judges to gut it in practice.

[....]

So why would his own Solicitor General do this? The speculation in legal circles is that Mr. Clement is trying to offer an argument that might attract the support of Anthony Kennedy, the protean Justice who is often the Court's swing vote. But this is what we mean by "too clever by half." Justice Kennedy would be hard-pressed to deny that the Second Amendment is an individual right, given his support in so many other cases for the right to privacy and other rights that aren't even expressly mentioned in the Constitution. No less a left-wing scholar than Laurence Tribe has come around to the view that the Second Amendment protects an individual right for this very reason. Mr. Clement is offering a needless fudge.

The D.C. Circuit's opinion in Heller is forceful, clearly reasoned and Constitutionally sound. By supporting that decision and urging the Supreme Court to validate it, the Bush Administration had the opportunity to help the Court see its way to a historic judgment. Instead, it has pulled a legal Katrina, ineptly declining even to take a clear view of whether Mr. Heller's rights had been violated. It dodges that call by recommending that the case be remanded back to the lower courts for reconsideration.

The SG's blundering brief only increases the odds of another inscrutable High Court split decision, with Justice Kennedy standing alone in the middle with his balancing scales, and the lower courts left free to disregard or reinterpret what could have been a landmark case. Is anybody still awake at the White House?

Read the whole thing here.

One might expect something like this from a Democrat Administration; it is shameful that it comes from a President who has portrayed himself a "Conservative". It is yet another example of "good intentions" whose unintended consequences (or perhaps the intended ones) rob the rest of us of Liberty that was granted to us by the founders, and which millions have fought and died to defend since then.

The transformation of President Bush in his second term from champion of conservative principles and taking agressive pre-emptive action on enemies who want us all dead, into a populist moderate who says "how high" when the State Department says "jump"--and who on some issues like the right to bear arms, might as well be a leftist-- has not been fun to watch.

UPDATE: On the other hand, at least this President did get a couple of thins right...