Novak, Clement, Cheney, and the Gun Case
Robert Novak reports this morning on alleged tumult within the Administration with respect to the position that Solicitor General Paul Clement has urged in Heller. Some of the details Novak conveys strike me as plausible — such as that the President “approved” of the Vice President appearing as amicus on a brief that urges affirmance of the D.C. Circuit opinion; and that SG Clement embraced the views of the Criminal Division over dissenting views from OLC. (Like many others, I don’t think Clement’s choice was a “puzzlement” in any way. What would have been surprising would be if he had filed a brief taking a hard-line view that would have called into question many existing and potential federal firearms regulations.)
But three other items in Novak’s column strike me as deeply implausible, based principally on my experience at DOJ.
First, Novak reports that “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.” (Novak presumably means Clement’s amicus brief, not a “petition.”) That is hard to believe. In a case of this magnitude, on an issue that had obviously been of great interest and occasioned great debate within DOJ, it is difficult to imagine that the White House Counsel was not brought into the loop much sooner — or that the White House Counsel did not give the President and “senior staff” notice of the debate and the possibility of a brief urging remand. No doubt the White House (or certain components in it) now wishes to wash its hands of any responsibility for the DOJ filing — hence the leaks to Novak. But the story they’re shopping doesn’t make sense.
Second, Novak reports that “[n]ewly installed Attorney General Michael Mukasey, a neophyte at Justice, was unaware of the conflict [between OLC and Criminal] and learned about Clement’s position only after it had been locked in.” This is even more implausible than the notion that the White House was out of the loop (particularly if “locked in” means “after the brief was filed,” which is the only meaningful way in which the position could have been “locked in” in a way that Mukasey could not reverse). Mukasey became AG on November 9th. Clement filed the brief on January 11th. Mukasey was not just then unpacking his bags. Clement probably meets with Mukasey several times a week, if not on a daily basis, and keeps him abreast of major developments within the SG’s Office. If there had truly been a major debate between OLC and Crim over the type of brief that the SG should file — which sounds entirely plausible — there would have been no reason for OSG, OLC and Crim not to have briefed the AG on it, and perhaps to seek his input or even his resolution of the internal debate.
Finally, Novak relates that “[t]he word was passed in government circles this week that Clement would amend his position when he actually faces the justices — which would be an odd ending to bizarre behavior by the Justice Department.” I’m skeptical. Is it possible that Clement will clarify his position at oral argument next Tuesday in a way that stresses the brief’s pro-individual-rights arguments a bit more? Sure. But a walkback from the basic positions adopted in the brief? Although stranger things have happened, I’ll only believe it when I see (i.e., hear) it. I imagine this “word” was passed to Novak as part of an effort within the Administration to lobby Clement (and Bush/Mukasey) for a more fundamental mea culpa at oral argument. The institutional cost to the Office of such a reversal, however, would strongly counsel against any such move — particularly because it would be unlikely to have any effect on the way the Justices decide the case. Don’t count on it.
[I should probably add that although Akin, Gump, which sponsors this site, is among the counsel for petitioner in Heller, I am not associated with Akin, have not worked on the case, and have not discussed this post or the Novak column with anyone involved in the case.]
I think Novak’s comment about Obama may be incorrect as well (when he says that this puts Bush to the left of Obama). According to the AP, Obama is a fan of individual rights, but supports D.C.’s ban. http://abcnews.go.com/Politics/wireStory?id=4297452. One of these sources must be wrong.
Comment by Bill Schwartz — March 13, 2008 @ 9:20 am
The link was http://abcnews.go.com/Politics/wireStory?id=4297452 (there was a stray period on the previous link)
Comment by Bill Schwartz — March 13, 2008 @ 9:21 am
“According to the AP, Obama is a fan of individual rights, but supports D.C.’s ban.”
Obama – a ‘fan’ of the individual rights view? Nothing could be further from the truth! Nothing in Obama’s record supports what he may be saying and plenty of Obama’s rhetoric paints a far different picture. Obama’s position on the Second Amendment is akin to saying that he thinks that religion is an individual right but that states can place reasonable restrictions on that right and if you live in DC, your choice of a church can be outright banned so long as some other religious venues are available to you.
Comment by David M. Bennett — March 13, 2008 @ 10:02 am
My point was merely that this article is mistaken. Perhaps “fan” was the wrong word entirely, just that he believes that it is an individual v. a collective right.
Comment by Bill Schwartz — March 13, 2008 @ 10:37 am
I guess you can believe a recent Obama speech, delivered in Wyoming, or look at his actiual, albeit brief, voting record in the Illinois legislature as a disciple of Mayor Daley and Emil Jones.
In Illinois he has sponsored and aggressively publicly supported bans on semi-auto rifles of all kinds and spoken out for handgun bans, bans on magazines over 10 rounds and the ultimate gun ban shibboleth, the .50 caliber rifle.
He’s perfectly comfortable with the DC and Chicago gun bans as an example of “reasonable regulation”. I guess some folks could see a complete ban on all guns as “reasonable regulation”. I keep wondering if they’d feel the same way about a ban on all internet speech as “reasonable regulation” for the 1st amendment “for the security of the public”.
At one point Obama has proposed a Federal ban on concealed carry, putting him at odds with 48 states that voted otherwise.
If he now “believes” in an individual right, it’s more likely to be from advisors looking with more interest than usual at the election results for gun control advocates since 1994 than any deep seated principle that suddenly emerged.
As my Drill Sergeant used to say to us every morning in basic training: “Deeds not words”
Comment by Don Petersen — March 13, 2008 @ 10:40 am
Marty, I find it a bit hard to believe that the Bush administration thinks the “institutional cost to the [SG's] office” is even a consideration. Clement’s own personal desire to avoid embarrassment, maybe.
Comment by Glenn Edwards — March 13, 2008 @ 10:46 am
Here’s another reason to be skeptical of Novak’s claim that Bush and his senior staff were “stunned” by the position taken in Clement’s brief. Under Supreme Court rules, the date on which an amicus brief is filed depends on the party the author supports.
Under Supreme Court rule 37(3)(a), “[Amicus briefs] shall be submitted within 7 days after the brief for the party supported is filed, or if in support of neither party, within 7 days after the time allowed for filing the petitioner’s or appellant’s brief.”
Because Clement’s brief was filed in support of neither party, it was submitted to the Court on January 11, one week after the submission of the District’s brief. If the White House truly had expected Clement to urge the Court to affirm the judgment of the D.C. Circuit, it would have expected the SG to file the brief following the submission of Heller’s brief — i.e. by February 11.
Assuming that Bush and his aides were at least aware that Clement was going to file the brief on January 11, then, it is hard to imagine how they could be “stunned” to learn that Clement did not support affirming the judgment below.
Comment by Ben Winograd — March 13, 2008 @ 12:45 pm
Thw White House position on DC’s gun control law is unequivocal and hypocritical; the smokescreen offered by Novak–along with Cheney’s pro-2nd Amendment offensive–is simply a sop to the NRA. The facts are these–the White House was party to an amicus brief on behalf of the District, and there was nothing mysterious about it. The Secret Service is insistent on a handgun ban (which is a separate law for all federal property) for DC; otherwise it will have to spend millions on metal detectors on roads and public streets and hire hundreds of new employees to conduct security searches every time they step onto the sidewalks around Lafayette Square and dozens of other sensitive areas. Duh! Don’t any of you people live here?
Comment by Hope Muntz — March 13, 2008 @ 1:49 pm
I agree that it would be highly unusual and odd for the United States to wait until oral argument to announce that it was substantially revising its position in a case. If, following public criticism of the SG’s brief, the White House decided that the government’s position should be changed, the more usual procedure would have been for the SG to file a supplemental brief announcing the change. For example, in 1991, after Kenneth Starr filed a brief for the United States that favored Mississippi in a college desegregation case (United States v. Fordice), civil rights groups complained to the White House about the brief. The result was that the White House directed that the government’s position be changed to be less supportive of Mississippi, and Starr filed a revised brief.
I suspect that the Justices would not be at all pleased if Paul Clement were to wait until oral argument to spring a new government viewpoint on them. For one thing, time for oral argument undoubtedly was allocated based on the government’s split-it-down-the-middle position. Clement’s 15 minutes were added to the argument without a deduction from either side’s time. If the Justices knew that the SG would ultimately adopt a position akin to Respondents’, they most likely would have deducted Clement’s time from Respondents’ 30 minutes.
Comment by RichardSamp — March 13, 2008 @ 2:12 pm
The Secret Service can relax their security standards in DC because there’s a handgun ban? One wonders how all those people in DC keep on getting killed if the ban is effective.
Comment by Ernst Blofeld — March 13, 2008 @ 4:29 pm
Obama is not a fan or supporter of any individual right to keep and bear arms. Obama has worked for years to weaken or eliminate the individual right to keep and bear arms, his recent weak rhetoric in support of it notwithstanding.
Let’s review the evidence:
-He was a member of the board of the Joyce Foundation for years and oversaw the provision of millions of dollars in grants to fund anti-gun research and activism. While the gun rights movement is a large enough social phenomenon to directly influence politicians with the threat of votes, the anti-gun “movement” is driven by a few hundred dedicated activists and is a much more top-down organization. These organizations perform faux research or claim to represent police, doctors, lawyers, etc. They receive funding for these activities almost entirely from Joyce Foundation grants. Obama has long played a leadership role in this organization.
-While on the IL senate he supported, proposed or spoke in glowing terms of various draconian anti-gun measures that belie any actual support for gun rights. For example, he attempted to pass a ban on all semiautomatic firearms in IL. This would have banned an enormous portion of the civilian owned firearms in this country. He has also tried to ban handguns, scary looking rifles (assault weapons ban) and place various general restrictions on ownership and purchase of firearms. These restrictions are always crippling measures that could not possible serve any legitimate purpose- they are intended only to diminish and discourage the ownership of firearms to clear the way for even more draconian measures.
-even his current speeches start with a vague praise of the right to keep and bear arms but follow with a list of permissible restrictions that strip the right of any meaning.
Although I realize that it is inappropriate for you guys to admit the obvious due to your role as counsel to the petitioners, most people are finding Obama’s “support” for the RKBA pretty unconvincing. In fact, I predict that Obama’s IL Senate record and Joyce Foundation leadership role is going to be a major mobilizing force in the coming election.
Comment by Jim Worsnoppp — March 13, 2008 @ 5:05 pm
Obama’s position may not be much of a mobilizing force if the Supreme Court affirms this spring that “the individual right to keep and bear arms” of which you speak does not exist.
Comment by William Rose — March 13, 2008 @ 7:22 pm
Three points.
One- the secret service couldn’t care less if the DC ban is thrown out or retained. Only two presidents have been shot dead in DC, Lincoln and Garfield. Kennedy was killed in Dallas and Mckinley in New York so a ban in DC wouldn’t have helped. Reagan was wounded in DC but years after the ban was imposed. Teddy was shot in Wisconsin, Roosevelt shot at in Florida, Ford twice in California. And hanks to two separate nuts we have Stinger missiles in the White House to shot down small aircraft. Finally, given the level of party animosity their is a serious threat that a group of senators may try and replay the death scene of Julius Ceasar, so metal detectors for knives will still be a very real thing regardless of what happens.
Second- Everyone believes its impossible for Bush or his AG to have been clueless on what the Solicitor General was going to say. After the NIE report fiasco I am actually a believer that Bush can be clueless. And right now he’s a lame duck president who no one wants to work with.
Three- Obama has never talked of the people’s right to keep and bear arms. He talks of the States rights under the second amendment to pass whatever gun legislation they want without fear of Federal interference. The States can even disband their common militia regardless of the right the President has to call it forth for service under Art 1 Sec 8 Cla 15. As President he would be the first to renounce the authority to call forth the militia and give the States the authority to disband in the name of gun control. A month later someone would then tell him that the Selective Service Act is connected to the Unorganized Militia Definition of 1903.
Comment by James N. Gibson — March 14, 2008 @ 1:05 am
Am I missing something or is William Rose’s comment exactly backwards? If the Supreme Court rules there is no individual right, then Obama’s record will be a HUGE issue and would almost guarantee he would lose the general election.
Comment by Chris Casper — March 14, 2008 @ 9:10 am
Gibson: Your third point makes me wonder whether the Court will hold that the 2d Amendment applies to the states under the incorporation doctrine. I don’t think that the Court will make that holding in this case because it is not at issue. However, if the Court rules for individual rights and strikes down the ban, the next obvious lawsuit is to challenge Chicago’s gun ban under the premise that the 2d Amendment applies equally to the state through the 14th Amendment. When the Court finally gets that case in 2010 or so, which way will it go?
Comment by James N. Markels — March 14, 2008 @ 9:44 am
As we well know, the Second Amendment to the Bill of Rights commands that:
A well-regulated militia being necessary to the security of a free state, the right of the People to keep and bear arms shall not be infringed.
However, bureaucrats at the Department of Justice have taken the position that the Second Amendment says that:
A well-regulated militia being necessary to the security of a free state, the right of the People to keep and bear arms may be subject to reasonable restrictions.
The DOJ Brief essentially asks the Supreme Court to amend the 2nd Amendment to strike out ‘shall not be infringed’ and insert ‘may be subject to reasonable restrictions’.
Comment by David M. Bennett — March 14, 2008 @ 12:17 pm
Markel: I would be watching the California Assault Weapon ban more then the Chicago handgun ban. The California law was ruled constitutional by the 9th circuit based on the 2nd amendment being a collective right and to maintain Dicta with previous 9th circuit rulings.
If SCOTUS rules individual and doesn’t then impose a restriction based on maintaining dicta, both Silveria and Hickman are invalidated.
If SCOTUS rules the way the SG wants, then the law is also toast since the State will have to prove that an acceptable alternative is available for militia style duty and or that the law doesn’t imped any Federally run program like the CMP, JROTC, or ROTC.
If SCOTUS rules in one of DCs proposed ways, that its to protect militia style long arms in private hands and not handguns, its also toast.
For it to survive SCOTUS has to rule it collective; that it over rides Art 1, Sec 8, Claus 16; that the Federal definition of militia is invalid, and the State can impose any control it so wishes regardless of any side-effect on the State militia, the national guard or selective service.
But this is the issue everyone is afraid will cause Moderate Kennedy to rule for Collective, to protect the controls on Assault Weapons and Machineguns. The problem there is he’s Ex-National Guard and may have a better understanding of what these bans have already done to military readiness then his fellow justices.
Comment by James N. Gibson — March 14, 2008 @ 8:34 pm
I believe that our Supreme Court took this ruling into consideration to not only make a defining statement to all of America on this matter, but to also put many other claims and ideas to rest once and for all.
Although I see it as sub-categories to ending the political debate on guns, I see gun control coming to an end, which it is about time. “Sensible gun laws” to the likes of Barack Obama and all others like him in politics means nothing less than an outright ban. I’m sure if DC and Chicago had full bans in place, Obama and other anti-gun politicians would refer to that as “sensible gun laws”.
I have never-ever heard a liberal/progressive use the 1st Amendment to support the 2nd Amendment, only to banish it away and appease their crowd.
There has never been so much controversy as the 2A, but by reading writings from Jefferson, Franklin, and others in the Federalist Papers, the clear reason for the 2A is for the People to have the ability to defend themselves from not only each other, but the government itself. This law is plain spoken, why is everyone taking it so deeply?
I for one see this issue as black and white. The 2A is an individual right, which is why it resides along all other amendments, which are for the individual as well.
In closing, the fallacy of emotion has taken a great law and made it into a great debate. I hope the courts make DC an example to the likes of Chicago, San Francisco, and other anti-gun circles.
Comment by Nick Clark — March 23, 2008 @ 12:03 am