Balkinization: What are the Responsibilities of Government Lawyers When They Interpret the Law?

Comments:

Why do you view the OLC opinion as embarrassing?

# posted by

mls : 8:19 PM

The amicus brief of the former DOJ attorneys sounds like a bureaucrats whining about losing power.

The AG adopts the findings of a decade's worth of academic research establishing the legal and historical basis of the individual rights view of the Second Amendment (including that of Professor Levinson), the 5th Circuit followed by the DC circuit has the temerity to side with the AG and these attorneys whine that their power to prosecute People for exercising their Second Amendment right might be diminished.

The DOJ brief takes a more tactful approach, but pursues the same goal of weakening the Second Amendment to protect existing and past sunsetted federal firearm laws.

DOJ appears to recognize that the Second Amendment protects a citizen's individual right to possess arms and the covered arms are those which were suitable for militia service and were in common use at the time of the enactment.

However, instead of the strict scrutiny test applied to laws which seek to limit the core of individual rights like freedom of speech, DOJ wants to apply a toothless intermediate "reasonableness" standard to the core of the Second Amendment.

One can only hope that the Supreme Court joins the 5th and DC Circuits in ruling against the government.

# posted by

Bart DePalma : 9:20 PM

mls said...

Why do you view the OLC opinion as embarrassing?

Well, it does cite to Balkinization's own Sandy Levinson’s "The Embarrassing Second Amendment."

# posted by

Bart DePalma : 9:23 PM

The Solicitor General is stuck between a rock and a hard place. One must remember-- and I say this as a qualified supporter of Second Amendment rights-- that there is a legitimate fear that these rights will be invoked by criminals who are being prosecuted for gun crimes as a proxy for more serious wrongdoing. They are afraid of losing a tool they can use to put a violent criminal behind bars.

But they also are committed, ideologically, to the Second Amendment's protection of an individual right.

Thus, they came up with the position that the Second Amendment protects an individual right, but the present laws are nonetheless constitutional. And the problem is that while one can certainly draw the line at certain types of regulations, if your position is the DC gun ban is constitutional, the right to bear arms is illusory.

I should add one other thing. It is a lot easier for politicians, especially in the executive branch, to advocate that gun controls be repealed out in the rest of the country. But I bet more than a few of them view DC is a special case, full of potential assassins. I bet there are plenty of ostensible gun rights advocates living there who nonetheless want that DC gun ban to stand.

# posted by

Dilan : 2:38 AM

"But they also are committed, ideologically, to the Second Amendment's protection of an individual right."

Ah, if only that were so. It would be closer to the truth to say that Republican administrations find it politically necessary to appear ideologically committed to the individual rights view, but have seldom shown any sign that the commitment was real.

It would be worth remembering that Ashcroft as AG was one of those things the current "compassionate conservative" President had to do as a sop to actual conservatives in the party, (It turns out rightly) suspicious that he was made in the mold of his father. And even Ashcroft wasn't permitted to implement the policies such a commitment would imply.

Indeed, a fair number of real criminals have probably been imprisoned for merely exercising a basic civil liberty. And if that civil liberty were to be properly acknowledged by the Court, not only would the practice of imprisoning supposed criminals who can't be proved such on the basis of their exercising a civil liberty have to cease, a fair number of people who the government couldn't prove were real criminals might have a basis for appeal.

My heart bleeds for the 'Justice' department's dilemma. Continuing to imprison people who couldn't be proven to be criminals IS, after all, an important matter.

# posted by

Brett : 8:34 AM

I think just saying the opinion is "embarrassing" w/o more is somewhat of a cheap shot. Given the bottom line individual rights view is broadly accepted on some level even by liberal legal theorists, the opinion's core simply doesn't seem that bad. I guess the problem is its reasoning?

[See Mark Tushnet's book.]

The Ashcroft position did speak of guns mainly used by criminals as legitimately targeted, which might be a problem given the lower court. Ashcroft did not just say "whatever was legit in 1789 is legit now." So, I don't think there is clear hypocrisy here.

Honestly, the lower court opinion was a bit vague on specific application. As to the trigger lock law, it didn't appear quite sure what exactly the plaintiffs was arguing (guessing what "appeared" to be argued).

And, its strict originalist language and technique simply doesn't reflect what a majority of the Court accepts as doctrine. A governmental brief also would honestly reflect that and ask a more nuanced technique be followed.

Still, if the feds here thinks the DC law should stand in full, it is a joke given their early comments.

# posted by

Joe : 11:21 AM

I think the brief reflects the Administration's view of the politics. I read the brief as concluding that if the ruling fails to provide for reasonable regulation of guns, it's a political disaster for the Republican party. The brief therefore urges that position, so the Administration can distance itself from the Court if necessary.

Of course, the Administration hasn't exactly shown itself a good judge of the electorate over the last 5 years, so it's hardly a given that it has the politics right.

# posted by

Mark Field : 1:33 PM

Brett, your view is not wrong, but you must remember that new substantive rules (i.e., that a particular crime cannot be made a crime) are fully retroactive on habeas review, so we could be talking about a lot of actual criminals getting out of jail if present gun laws are overturned. You don't have to be sympathetic with the gun control cause to understand why the DOJ might want to avoid that.

# posted by

Dilan : 5:00 PM

Dilan:

The Solicitor General is stuck between a rock and a hard place. One must remember-- and I say this as a qualified supporter of Second Amendment rights-- that there is a legitimate fear that these rights will be invoked by criminals who are being prosecuted for gun crimes as a proxy for more serious wrongdoing. They are afraid of losing a tool they can use to put a violent criminal behind bars.

But they also are committed, ideologically, to the Second Amendment's protection of an individual right.

Thus, they came up with the position that the Second Amendment protects an individual right, but the present laws are nonetheless constitutional. And the problem is that while one can certainly draw the line at certain types of regulations, if your position is the DC gun ban is constitutional, the right to bear arms is illusory.

As with all rights, if we assume arguendo that there is an individual right to KABA, that doesn't invalidate all regulation of such, and the equivalent of "TPM" restrictions in 1st Am. cases may be reasonable.

Cheers,

# posted by

Arne Langsetmo : 7:05 PM

Arne:

I do believe that all sorts of regulations fall within the government's power to organize and regulate the militia which is implicit in the Second Amendment.

But if the DC gun ban is constitutional, there isn't much left of the Second Amendment.

# posted by

Dilan : 10:33 PM

I do believe that all sorts of regulations fall within the government's power to organize and regulate the militia which is implicit in the Second Amendment.

It's not clear to me that the federal government has power to create a militia independent of the states. At the least, that would seem inconsistent with the provisions in Article I reserving to the states the power to appoint officers and train the militia. It's also inconsistent with some of the rationales offered to justify the militia, such as maintaining a power in the states to resist federal tyranny.

This suggests to me that there can be no militia in DC. On what basis, then, would a resident there claim a right to bear arms?

Putting this particular issue aside, your comment implies a role for the militia which I don't think is constitutionally required. One possible use for a militia (a state could argue) would be to establish a state monopoly for purposes of law enforcement. If a state wished to do that, it should be able to ban all firearms which it deems inconsistent with that goal.

# posted by

Mark Field : 11:59 PM

Dilan:

I do believe that all sorts of regulations fall within the government's power to organize and regulate the militia which is implicit in the Second Amendment.

But if the DC gun ban is constitutional, there isn't much left of the Second Amendment.

What of "time, place, and manner" type restrictions? Like no guns in the Capitol? (place) No handguns? (manner)? While Miller sought to distinguish sawed-off shotguns from weapons associated with the militia, I don't see why restrictions that allow the essential and animating purposes of the 2AM, even assuming that such is an individual right, couldn't say that there's enough freedom without allowing unlimited handguns.

What do you think is the proper line to draw? Surely short of home nukes? But how then do you draw it?

Cheers,

# posted by

Arne Langsetmo : 1:24 AM

This comment has been removed by the author.

# posted by

Bart DePalma : 9:19 AM

arne:

You are correct that the 2d Amendment almost certainly allows time place and manner restrictions ala the 1st Amendment.

I believe this is why the Supremes narrowed the question in Heller to the right to keep handguns and other firearms for private use in private homes and leave the issue of public carry for another day.

# posted by

Bart DePalma : 9:20 AM

Mark:

The problem with that position is that it is perfectly clear that the framers understood that the federal government would have a role in organizing and disciplining the militia. The Militia Act was passed around the same time as the Second Amendment, and nobody thought it unconstitutional. Nor does anyone believe that the presidential authority to call up the National Guard (which is a modern variant on the state militia) is unconstitutional.

Plus, the seat of government clause of the Constitution gives the Congress plenary power over the District. So the Militia Act-- which is still effective-- applies to the District.

Bottom line, the government has the power to regulate and organize the militia. However, government cannot prohibit people from keeping and bearing arms. Gun regulation is constitutional. Gun prohibition isn't.

# posted by

Dilan : 3:10 PM

Dilan:

Gun regulation is constitutional. Gun prohibition isn't.

So they can regulate what types of "arms" are legal to possess? FWIW, I'd note that the Second Amendment doesn't specify "firearms".

OT: I was listening to RW talk radio here a couple days ago, and there was a guy that was explaining how the Second Amendment was just another manifestation of the Constitutional concept that the "people are sovereigns", and that we have to recognise that "we are the first line of defence". Sounds a bit like "frontier justice" and a recipe for anarchy to me. But another thought pervaded my mind in listening to him; I suspect that this person was someone who felt a need to be 'significant' (if not downright "dangerous") ... which of course is an attraction of gangs and such as well....

Cheers,

# posted by

Arne Langsetmo : 4:28 PM

I agree that the federal government has a role in training the militia. Art. I gives it express authority to set the standards.

The Militia Act of 1792 does not help your argument, however -- it specifically defines militia members as "each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years..." Link, emphasis added.*

Notably, when the Act provides for calling out the militia, it refers to "the militia of the state or states"; in fact, it repeatedly and exclusively refers only to the militia of the states. The entire statutory scheme depends on the states and refers to them as the locus of the militia.

I see nothing in the 1792 Act which is inconsistent with the determination that the federal government cannot itself establish a militia. In fact, allowing the feds to do so strikes me as potentially inconsistent with the army clauses of Art. I, permitting the federal government to have what amounts to a standing army.

All this is just to say that if the right to bear arms is intertwined with the militia, I don't see how a resident of DC can claim it.

*Of course, DC did not exist in 1792, but other territories did.

# posted by

Mark Field : 4:38 PM

Of course, DC did not exist in 1792, but other territories did.

DC isn't like other territories. Congress' power is plenary over the District.

In any event, your argument cuts the other way. Congress almost certainly does have the power to organize and train the militia in territories. The clauses in the Constitution granting state authority over the militias are obviously not restrictive of what Congress can do with territories.

More generally, though, they aren't restrictive at all in the way you claim. The militia act doesn't simply train the militia; it defines it and regulates it, which under your theory should make it unconstitutional. Yet nobody thought that at the time. Nor does anyone think that the federal government's calling up of the state militia is unconstitutional.

So there's no reason why DC residents cannot claim the same right to be part of the armed militia that every other state's residents can claim.

As for the claim that "arms" doesn't mean firearms, it certainly would seem to mean firearms given what type of arms the militia carried in 1791.

# posted by

Dilan : 7:35 PM

Dilan:

As for the claim that "arms" doesn't mean firearms, it certainly would seem to mean firearms given what type of arms the militia carried in 1791.

Oh. So we're talking matchlocks and muskets (and swords)? As I said, it didn't say "firearms". To suggest that it meant what it meant in 1791 would seem to indicate that most modern firearms wouldn't be considered, and doesn't help your case a lot, That in 1791 some firearms might have been included doesn't mean that it means only (or all) "firearms".

Cheers,

# posted by

Arne Langsetmo : 9:02 PM

DC isn't like other territories. Congress' power is plenary over the District.

I guess, though Art. IV gives Congress the power to "make all needful rules and regulations respecting the territory or other property belonging to the United States". That sounds kinda plenary too.

Putting that aside, though, your argument now cuts too far. One of two things must be true:

1. Congress has plenary power over DC. The rest of the Constitution doesn't apply. In this case, though, the 2d A doesn't either.

2. Congressional power over DC is limited by provisions in the Constitution. In this case, the militia provisions of Art. I give power to the states which Congress can't exercise.

I guess there's a third option: pick and choose which provisions apply to DC. But that doesn't make sense. Nobody thinks Congress can suspend habeas there in the absence of a rebellion or give preference to DC as a port.

Congress almost certainly does have the power to organize and train the militia in territories. The clauses in the Constitution granting state authority over the militias are obviously not restrictive of what Congress can do with territories.

Perhaps not, but the Militia Act of 1792 doesn't support that interpretation. As I pointed out, it tends to negative it. There may be a militia act for the territories, but I've never seen it.

The militia act doesn't simply train the militia; it defines it and regulates it, which under your theory should make it unconstitutional.

No, I've already agreed that Congress has power to organize the militia. That certainly includes the power to define and regulate it (subject to the specific state powers noted above). It just can't define the militia in any way inconsistent with the state power; but organizing a militia in DC would violate the rule that only states can choose the officers. It would also violate the structural protection the militia powers of the states were intended to secure.

Nor does anyone think that the federal government's calling up of the state militia is unconstitutional.

Of course not. Art. I, Sec. 8, cl. 15 expressly grants that power.

# posted by

Mark Field : 9:24 PM

Oh. So we're talking matchlocks and muskets (and swords)? As I said, it didn't say "firearms". To suggest that it meant what it meant in 1791 would seem to indicate that most modern firearms wouldn't be considered, and doesn't help your case a lot, That in 1791 some firearms might have been included doesn't mean that it means only (or all) "firearms".

Why? No other constitutional provision works that way. The First Amendment applies to the internet. The Fourth Amendment applies to thermal imaging. The Eighth Amendment applies to lethal injections of chemicals that weren't discovered in 1791.

The 2nd Amendment extends to firearms because firearms were clearly weapons that a militia member might keep and bear in 1791. But what firearms are protected doesn't get limited by the scope of the right in 1791.

1. Congress has plenary power over DC. The rest of the Constitution doesn't apply. In this case, though, the 2d A doesn't either.

2. Congressional power over DC is limited by provisions in the Constitution. In this case, the militia provisions of Art. I give power to the states which Congress can't exercise.

It's neither. Congress' plenary power over the District means that when dealing with the District, Congress has all the power the federal government has plus all the power a state government would have. For instance, within the District, Congress may regulate local as well as interstate and international commerce.

But Congress is still subject to the bill of rights, e.g., Bolling v. Sharpe.

# posted by

Dilan : 10:56 PM

It's neither. Congress' plenary power over the District means that when dealing with the District, Congress has all the power the federal government has plus all the power a state government would have. For instance, within the District, Congress may regulate local as well as interstate and international commerce.

But Congress is still subject to the bill of rights, e.g., Bolling v. Sharpe.

I'm not sure why you say it has all the power a state has. Why would it be limited to the powers possessed by a state? After all, the clause is, as you noted, plenary. Unless there is some means of placing limits on its power other than the BoR, Congress would have power to create titles of nobility, pass bills of attainder, etc. as long as it restricted those to DC.

If you believe that those structural limits do apply to Congress within DC, then it's hard to see why the structural limits on the militia wouldn't also apply.

# posted by

Mark Field : 11:33 AM

You are overcomplicating things.

If Congress has a power somewhere else, it has it in the District.

If a state would have a power, Congress also has that power in the District.

However, if the Constitution forbids either Congress or a state from doing something, Congress can't do it in the District.

# posted by

Dilan : 12:49 PM

Dilan, I understand your logic, and it's good logic. The problem I'm having is that I can't reconcile that logic with the text of the Constitution itself.

# posted by

Mark Field : 1:37 PM

Mark:

The usual citation is Palmore v. US, 411 US 389, for the proposition that Congress has all the powers of a state legislature when legislating for the district, and Bolling v. Sharpe, for the proposition that the DC is nonetheless governed by constitutional provisions that restrict state and national power.

This is settled law.

# posted by

Dilan : 3:18 PM

Here's the relevant language from Palmore:

"Art. I, § 8, cl. 17, of the Constitution provides that Congress shall have power "[t]o exercise exclusive Legislation in all Cases whatsoever, over" the District of Columbia. The power is plenary. Not only may statutes of Congress of otherwise nationwide application be applied to the District of Columbia, but Congress may also exercise all the police and regulatory powers which a state legislature or municipal government would have in legislating for state or local purposes. Congress

"may exercise within the District all legislative powers that the legislature of a State might exercise within the State; and may vest and distribute the judicial authority in and among courts and magistrates, and regulate judicial proceedings before them, as it may think fit, so long as it does not contravene any provision of the Constitution of the United States."

This does say that Congress can exercise the powers of a state or municipal government while legislating for DC. It does NOT deal with two issues:

1. Whether the limitations on state power in the Constitution also limit Congressional power in DC, and, assuming they do, why that would be true (and, to nitpick, why the Court would choose the word "plenary" to describe power which is so limited).

2. Why it is that some provisions of the Constitution which limit Congressional power -- Art. III, in the particular case of Palmore -- do NOT limit Congressional power in DC, but other provisions (say, habeas corpus) DO limit Congress (again, in contrast to the term "plenary").

# posted by

Mark Field : 3:48 PM

Mark:

Bolling v. Sharpe applies a limitation on state power (the equal protection clause of the 14th Amendment) to DC. So that answers your first question.

The answer to your second question-- although I have to infer this from the cases-- is that those provisions that limit both state and federal power apply to Congress when it is legislating re: DC. So, states can't suspend habeas under the Due Process clause of the Fourteenth Amendment, and Congress can't do it (except in limited circumstances) under Article I. As a result, Congress can't suspend habeas in the District.

But if only one of the two organs lacks the power to do something, Congress can change hats and do it in the District.

# posted by

Dilan : 5:44 PM

Bolling v. Sharpe applies a limitation on state power (the equal protection clause of the 14th Amendment) to DC. So that answers your first question.

As I read Bolling, it does not directly apply the EPC. Rather, it says that the due process clause of the 5th A includes an equal protection requirement. Since that's a direct restriction on Congressional power, it surely operates in DC, but doesn't help us with other provisions.

But if only one of the two organs lacks the power to do something, Congress can change hats and do it in the District.

That still leaves open some awkward possibilities. For example, only Congress is barred from giving preference to different ports. I guess that means it could give such preference to DC while wearing its "state" hat. How about unanimous verdicts or indictment v. information? Does the 2d A even apply to the states, and if not can Congress put on its state hat and regulate arms in DC that way? Can it, wearing its Congress hat, impair the obligation of contracts?

Just to be clear, I have little doubt that your position should be the rule. It's logical and structurally sound (with a few permutations). The trouble is, the Constitutional text doesn't address the issue and that leaves us with the ambiguities I've mentioned.

# posted by

Mark Field : 8:08 PM

Well, I have little doubt it is the rule under Palmore and Bolling. But you are right that there are cases you can posit that would be difficult to resolve.

# posted by

Dilan : 1:06 AM