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Unsolicited Advice For Democratic Candidates

One of the most important cases, at least at a symbolic level, to be argued before the Supreme Court this term will be District of Columbia v. Heller, involving the constitutionality of DC's de facto prohibition of handguns. The Circuit Court for the District of Columbia invalidated the prohibition, and the District, against the pleas of many in the "gun control community" who correctly recognize that this is a very high-risk case from their perspective, chose to appeal to the Court. One of the things that the case necessarily involves is the meaning, and reach, of the Second Amendment--"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"--certainly one of the most controversial parts of the Constitution.

The Democratic Party has paid a huge cost over the years for its embrace of largely symbolic "gun control" measures. Bill Clinton, who is too easily described as a political genius, caused lost the House in the 1994 by insisting that Democratic members support the ban on "assault weapons." Then- Harvard professor Morris Fiorina estimated that this vote cost the Democrats six seats in the 1994 elections (including, of course, the Speaker of the House, Tom Foley, from eastern Washington). This year, however, Hillary Clinton told voters in Iowa that "I believe in the Second Amendment," and Barack Obama, has said similarly kind things about recognizing why many people believe in the desirability of possessing firearms.

As it happens, the Solicitor General of the United States has handed the Democratic candidates what can only be described as a gift, in his brief in the Heller case. He argues first that the Second Amendment, properly understood, does indeed protect some kind of individual right to possess firearms, but, secondly, that it is subject to reasonable regulation.

Thus he calls on the Supreme Court ultimately to remand the case back to the Circuit Court to apply a somewhat different, and more latitudinarian, standard than the one they used in assessing the DC law.

As both a lawyer and a Democrat, I hope that the Solicitor General's position prevails in a 9-0 vote. It would conceivably do wonders to reach some kind of truce in the culture war over handguns, well described in Mark Tushnet's recent book on the subject, Out of Range: Why the Constitution Can't End the Battle over Guns.

So my advice is this: Democratic candidates--I support Obama, but would gladly vote for any of the contenders--should go out of their way to praise the Solicitor General's brief both because it does recognize that the Amendment has at least some, though not too much, bite. It will be interesting, incidentally, to see what the Republican candidates do.

Will they really accuse the Bush Administration, ably represented by Paul Clement, the Solicitor General, of being "soft on gun rights"? (An obvious impetus for the SG's arguments is the concern expressed by lawyers in the Criminal Division of the Department of Justice that the Circuit Court's standard of review might call into question a variety of federal firearms laws.) More to the point, if the Supreme Court accepted the arguments of the SG's brief, the Democratic candidate would be in the wonderful position of being able to endorse the wisdom of the (conservative) Supreme Court, and, ideally, the issue would basically disappear from the 2008 election, unless the Republican chose to froth at the mouth about the wimps in the Bush Administration, including, by stipulation, the Republican justices, who are willing to allow any regulation at all. (The worst outcome, by far, certainly as a political matter and, I think, even as a matter of constitutional interpretation, would be a 5-4 decision, in an opinion written by one of the moderates, reversing the Circuit and upholding the ban. That would be a true gift to the Republican Party.)

--Sanford Levinson

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