In their legal battle over gun ownership and the 2nd Amendment, gun- control advocates never expected to get a boost from the Bush administration.
But that’s just what happened when U.S. Solicitor General Paul D. Clement urged the Supreme Court in a brief Friday to say that gun rights are limited and subject to “reasonable regulation” by the government and that all federal restrictions on firearms should be upheld.
Reasonable regulations include the federal ban on machine guns and other “particularly dangerous types of firearms,” he said in the brief. Moreover, the government forbids gun possession by felons, drug users, “mental defectives” and people subject to restraining orders, he said.
“Given the unquestionable threat to public safety that unrestricted private firearm possession would entail, various categories of firearm-related regulation are permitted by the 2nd Amendment,” Clement said. He filed the brief in a closely watched case involving Washington, D.C.'s ban on keeping handguns at home for self-defense.
The head of a gun-control group said he was pleasantly surprised by the solicitor general’s stand.
Paul Helmke, president of the Brady Campaign to Prevent Handgun Violence, said he saluted the administration for recognizing a need for limits on gun rights.
Alan Gura, a key gun-rights advocate who is leading the challenge to the District of Columbia’s gun law, expressed disappointment at the administration’s position. He said he was troubled that Clement advised the justices to send the case back for further hearings in a lower court.
“We are not happy. We are very disappointed the administration is hostile to individual rights. This is definitely hostile to our position,” Gura said.
This year, for the first time, the court is expected to rule squarely on whether the 2nd Amendment gives individuals a right to have a gun despite laws or ordinances restricting firearms.
In the past, this amendment has sometimes been read as protecting only state militias. It says: “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.”
The case before the court tests the constitutionality of the District of Columbia’s unusually restrictive ordinance. Clement, the Bush administration’s chief lawyer before the court, agreed that the 2nd Amendment “protects an individual right to possess firearms, including for private purposes unrelated to militia operations.” D.C.'s ban on handguns goes too far and is probably unconstitutional, he added.
A ruling along these lines would be a major victory for advocates of gun owners’ rights.
But the solicitor general devoted most of his brief, filed late Friday, to urging the court to move cautiously and to make clear that the 2nd Amendment does not threaten most current restrictions on guns and gun owners.
Clement also said the court should stop short of striking down the D.C. ordinance on its own. Instead, he said, the case should be sent back to a trial judge.
“The D.C. ban may well fail constitutional scrutiny” he said, because it totally forbids private citizens from having a handgun at home.
But such a ruling should not threaten other laws, he said. “Nothing in the 2nd Amendment properly understood . . . calls for invalidation of the numerous federal laws regulating firearms.”
Under Atty. Gen. John Ashcroft, the Bush administration in 2001 switched the Justice Department’s long-standing support for gun control and adopted the view that the 2nd Amendment protects individuals’ gun rights.
The solicitor general holds an unusual position in the government.
He is an appointee of the president in the Justice Department, representing the administration’s view in court. At the same time, he has a duty to defend the laws passed by Congress, including in this instance the restrictions on machine guns and who can own a firearm.
The solicitor general is also an advisor to the Supreme Court. And usually, the briefs filed by his office carry more weight with the justices than any others.
The court will hear arguments in the D.C. case in late March.