The Bush administration missed a golden opportunity to stand up for the Second Amendment when it filed a Supreme Court brief that only gives lukewarm support to gun rights, asking the Court to send the case back down to apply a lesser standard of legal protection to the Second Amendment. Presidential candidates should tell us where they stand on the government’s position.
The Office of the Solicitor General (OSG) is the Justice Department branch representing the federal government in the Supreme Court. Its briefs carry great weight as the official position of the United States. OSG filed a brief in DC v. Heller, the case regarding the DC gun ban (previously titled Parker v. DC).
This brief reaffirms the Bush administration position that the Second Amendment guarantees an individual right applying to private citizens. It says that right should be subject to what is called “heightened scrutiny.” And it makes it clear that the DC gun ban should be abolished.
But the brief filed by OSG is nonetheless disappointing. Though calling for heightened scrutiny, it says the Court should apply “intermediate scrutiny.” While intermediate scrutiny may be appropriate in some situations, it’s not a strong enough standard to apply to a law that says a person cannot have a handgun in their own home for self-defense, as the DC gun ban does. Such a law should be categorically unconstitutional, which is what the DC Circuit Court held. Such a law should be subject to the highest level of scrutiny, called “strict scrutiny,” to make sure that the law is narrowly tailored to achieve the desired result.
Also—disturbingly—though OSG affirms that the Second Amendment secures an individual right, it does not call it a “fundamental right”—which is very important for legal reasons—and asks the Court to deny it the level of protection of a fundamental right.
This brief is a mixed bag. Some say it takes the side of DC. Not so. Asking the Supreme Court to reverse the DC Circuit Court’s decision would take the side of DC, and OSG clearly does not do that.
But it does not ask the Court to affirm the DC Circuit Court judgment in favor of Heller, either. Instead, it asks the Court to vacate (or throw out) the lower court opinion, and send the case back for a rehearing applying a lesser standard of review to the rights embodied in the Second Amendment than are typically applied to other amendments in the Bill of Rights, like the First and Fourth Amendments