Sunday, January 13, 2008

Has the Solicitor General thrown a life-line to the Democratic Party?

Sandy Levinson

The brief filed by the United States in the Heller case suggests a) that the Second Amendment has at least some bite in considering the DC ordinance at question, but b) that the DC Circuit's conclusion was too strong and that the case should be remanded for consideration under the proper standard of review. Independently of the legal merits of the Solicitor General's position, which I think are considerable, may I respectfully suggest that every Democrat should pray
that the Court unanimously accepts the SG's position. This would have the wonderful consequence of eliminating the issue of gun control from the 2008 election, a development that can only help the Democratic candidate whoever he or she may be. (Recall that Hillary Clinton has declared that she "believe[s] in the Second Amendment, though.)

I have been more than a bit interested in trying to figure out who voted to grant cert. in this case. It is hard to imagine that the four moderates, save for David Souter, are so completely removed from political considerations as to be ignorant of the extent that a 5-4 decision, however it went, would simply throw red meat to the Republican candidate. These are justices, after all, who had no trouble depriving Newdow of the victory that was rightfully his, in the 2004 case involving "under God" in the Pledge of Allegiance, because they no doubt perceived that a decision upholding the clearly correct opinion of the 9th Circuit would be a disaster for the Democratic candidate. Far better to construct a completely unpersuasive theory of standing that kicked the case out of the Supreme Court than reach the decision on the merits.

So, if the moderates weren't eager to take the case, does that mean that Roberts, Thomas, Scalia, and Alito were? If they were thinking as party loyalists, that would make sense, since there is no way the Republicans can lose (unless, of course, hell freezes over and the Court unanimously upholds the DC prohibition). If a 5-4 decision upholds the DC Circuit, then the Republicans get credit for the decision and, in addition, can note the importance of electing a president who will not try to appoint a justice to overrule the decision. If a 5-4 decision (presumably with Kennedy in the majority) upholds the prohibition, then the Republican candidate notes, tactfully or otherwise, that Justice Stevens will be departing the Court in the foreseeable future and that he will certainly appoint someone with more palatable views to gun buffs. Only the adoption of the Solicitor General's position by the moderates would confound this strategy. Let us pray....


I doubt CJR, SA, AS, and CT voted to grant cert -- assuming, as is almost certainly the case, they were the four votes -- after considering how a decision would play in the 2008 presidential election.

A more plausible explanation is that these four are part of (leaders of?) the New Right political movement, a tenet of which is a robust individual rights view of the 2nd Amendment. That is, rather than contemplating or conspiring in crass terms how they could help the GOP, they simply relied on their deeply-held priors which are consonant with the New Right. This is, after all, why they were nominated in the first place.

I don't see what was so unpersuasive about the standing holding in Newdow. The father was asserting that the kid didn't want to say the pledge. The mother was assserting that the kid didn't mind. If the kid didn't mind, there's no Article III case or controversy.

What's so dumb about waiting until you have a kid who unambiguously does not want to say the pledge, as confirmed by both parents, before you rule on it?

To focus on the actual views of the Newdow child would require the Court to assert a view of "children's rights" that is by and large lacking in our jurisprudence. Consider, for example, the Yoder case, which was, in fact, entirely about whether the state or the parents would be in charge of the socialization of the young Amish child. Only Justice Douglas thought it might be of any relevance whether the Yoder children actually wanted to be confined to the Amish schools and thus deprived of the practical possibility of later integration into American society should they wish to reject the Amish shtetl (to mix languages).

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Favorable court decisions do not make much of a splash in elections, adverse decisions do.

The GOP presidential candidates were not campaigning last year on the terrific decisions the Bush appointed justices rendered last year, especially the decision upholding the partial birth abortion ban. Indeed, with a viable conservative majority, judicial appointments simply have not been an issue in the GOP primaries.

In sharp contrast, the Mass. Supreme Court creation of a right to homosexual marriage enraged millions of voters prior to the 2004 election. Conservatives who stayed home in 2000 showed up to vote for Bush in 2004.

Similarly, I only see Heller becoming a major issue if Kennedy votes to uphold the DC prohibitions. Firearm owners like myself in both parties will be infuriated and 2008 could look like 1994 on steroids.

However, if Kennedy rules against the DC prohibitions on the narrow question presented, I do not see much effect on the elections. The firearm owners will probably think "good" when they hear the story and then go on with their lives. Firearm prohibitionists are already Dems. In fact, Dem and Indi firearm owners may feel more comfortable casting votes for liberal Dems if the Supremes finally recognize the Second Amendment.

Even if Kennedy followed the DOJ position, found a individual right and then remanded, the effect on the election would probably be similar to an outright victory.

In any case, I suggest your fear that the factions in the Supreme Court made their cert determinations on elaborate elections calculations is a wee bit paranoid.

What makes this take even less likely is that the factions' ideological and alleged partisan calculations appear to conflict in this case. If the conservatives prevail in their originalism and restore the Second Amendment, then the party of their nominator does not gain an advantage and may even lose the votes of Dems and Indis. On the other hand, if the liberals prevail in rendering the Second Amendment a nullity, the party of their nominator (apart from Souter) will pay a very dear price at the polls.

If I had to hazard a guess, the conservatives saw a great set of facts (the plaintiffs were not criminals and the DC prohibitions were as bad as you can get), so they granted cert on a narrowed question so they could be fairly confident of getting Kennedy on board. Thomas has made comments in past decisions indicating that he would like to rule on this question. Now he has a good vehicle to do so.


I don't see what was so unpersuasive about the standing holding in Newdow. The father was asserting that the kid didn't want to say the pledge. The mother was assserting that the kid didn't mind. If the kid didn't mind, there's no Article III case or controversy.

Who had rights to determine the child's upbringing was a matter of California family law, and precedent there is pretty good that Newdow had some interest. At worst, the Supes should have certified this issue to the California Supreme Court rather than essentially "overruling" the decisions of the California courts that had given Newdow shared custody.


I don't know that the political results follow. Finding a broad individual right would tend to de-politicize a major Republican issue. There are undoubtedly many "Reagan Democrats" and populist Republicans who would be willing to vote Demo *except* that they fear what a Demo candidate would do on the gun issue. If the answer is "not very much," or even just "not the things that you fear," they might go Demo.

GOP can tout the gun issue, but turning that into votes requires the additional argument that Demos are to be feared with regard to it.

Fortunately for Republicans, Democrats make it remarkably easy to make that additional argument... Calling an amendment to repeal D.C.'s gun ban, thus mooting the Heller case, a "poison pill" amendment put Democrats on record as to what they think reasonable gun control really is: A complete ban.

Fortunately for Democrats, any claim of concern about the 2nd amendment on the part of most of the current Republican field is transparently an expedient lie. If you set out to pick a Republican who would neutralize the gun issue for Democrats, you couldn't do better than Guliani.

In this context, including the Bush DoJ's treacherous brief for the petitioners, Heller becomes much less of a threat to Democratic aspirations than it could have been.

Really, only one thing is clear: Your desire that 10% of the Bill of Rights continue to be essentially a dead letter in order to further the interests of the Democratic party has purged whatever respect "The Embarrasing Second Amendment" earned you in the eyes of those of us who want the entire Bill of Rights enforced.

Oops; Obviously that latter part of that comment was addressed to Sandy, not Dave,

Once you clear all this ultimately meaningless political underbrush away, this 911 call illustrates the fundamental importance of the Second Amendment. This woman would have been strangled to death if she lived in DC and followed their ignorant and dangerous laws.

> no way the Republicans can lose (unless,
> of course, hell freezes over and the Court
> unanimously upholds the DC prohibition)

Methinks you have this backwards. If the Court upholds the unconstitutional ban, then on election day I would be much more concerned that the other two branches of the gov't don't make the same mistake. I would hold my nose and vote for Huckabee or maybe even Giuliani over Clinton or Obama. There would be no way that I would vote for a pro-control Democrat, even if I have to vote for a 3rd party.

On the other hand, if a miracle happens and the Court unanimously upholds the appellate ruling and strikes the ban, then the chance of me voting for Giuliani plummets to roughly zero, and I would strongly consider voting for a Democrat, especially if he/she accepts the ruling and notes that it precludes a ban on so-called "assault weapons".

Forgot to mention: Even a 5-4 ruling in favor of the Second Amendment (i.e., one upholding the appellate ruling and striking down the DC ban) would leave me feeling much safer voting for a Democrat.

But if the Court punts the case back to the lower courts on the SG's argument, then Republicans can rightfully say that the Court has decided to review Second Amendment issues with a lower standard of scrutiny. Oh yeah, and expect Faux News to present the Court decision as a major setback for the Second Amendment.

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