Bad Brief: The Bush DOJ shoots at the Second Amedment

A lot of Americans who believe in the right to own guns were very disappointed this weekend. On Friday, the Bush administration’s Justice Department entered into the fray over the District of Columbia’s 1976 handgun ban by filing a brief to the Supreme Court that effectively supports the ban. The administration pays lip service to the notion that the Second Amendment protects gun ownership as an “individual right,” but their brief leaves the term essentially meaningless.

Quotes by the two sides’ lawyers say it all. The District’s acting attorney general, Peter Nickles, happily noted that the Justice Department’s brief was a “somewhat surprising and very favorable development.” Alan Gura, the attorney who will be representing those challenging the ban before the Supreme Court, accused the Bush administration of “basically siding with the District of Columbia” and said that “This is definitely hostile to our position.” As the lead to an article in the Los Angeles Times said Sunday, “gun-control advocates never expected to get a boost from the Bush administration.”

As probably the most prominent Second Amendment law professor in the country privately confided in me, “If the Supreme Court accepts the solicitor general’s interpretation, the chances of getting the D.C. gun ban struck down are bleak.”

The Department of Justice argument can be boiled down pretty easily. Its lawyers claim that since the government bans machine guns, it should also be able to ban handguns. After all, they reason, people can still own rifles and shotguns for protection, even if they have to be stored locked up. The Justice Department even seems to accept that trigger locks are not really that much of a burden, and that the locks “can properly be interpreted” as not interfering with using guns for self-protection. Yet, even if gun locks do interfere with self-defense, DOJ believes the regulations should be allowed, as long as the District of Columbia government thinks it has a good reason.

Factually, there are many mistakes in the DOJ’s reasoning: As soon as a rifle or shotgun is unlocked, it becomes illegal in D.C., and there has never been a federal ban on machine guns. But these are relatively minor points. Nor does it really matter that the only academic research on the impact of trigger locks on crime finds that states that require guns be locked up and unloaded face a five-percent increase in murder and a 12 percent increase in rape. Criminals are more likely to attack people in their homes, and those attacks are more likely to be successful. Since the potential of armed victims deters criminals, storing a gun locked and unloaded actually encourages crime.

The biggest problem is the standard used for evaluating the constitutionality of regulations. The DOJ is asking that a different, much weaker standard be used for the Second Amendment than the courts demands for other “individual rights” such as speech, unreasonable searches and seizures, imprisonment without trial, and drawing and quartering people.

If one accepts the notion that gun ownership is an individual right, what does “the right of the people to keep and bear Arms, shall not be infringed” mean? What would the drafters of the Bill of Rights have had to write if they really meant the right “shall not be infringed”? Does the phrase “the right of the people” provide a different level of protection in the Second Amendment than in the First and Fourth?

But the total elimination of gun control is not under consideration by the Supreme Court. The question is what constitutes “reasonable” regulation. The DOJ brief argues that if the DC government says gun control is important for public safety, it should be allowed by the courts. What the appeals court argued is that gun regulations not only need to be reasonable, they need to withstand “strict scrutiny” — a test that ensures the regulations are narrowly tailored to achieve the desired goal.

Perhaps the Justice Department’s position isn’t too surprising. Like any other government agency, it has a hard time giving up its authority. The Justice Department’s bias can been seen in that it finds it necessary to raise the specter of machine guns 10 times when evaluating a law that bans handguns. Nor does the brief even acknowledge that after the ban, D.C.’s murder rate only once fell below what it was in 1976.

Worried about the possibility that a Supreme Court decision supporting the Second Amendment as an individual right could “cast doubt on the constitutionality of existing federal legislation,” the Department of Justice felt it necessary to head off any restrictions on government power right at the beginning.

But all is not lost. The Supreme Court can of course ignore the Bush administration’s advice, but the brief does carry significant weight. President Bush has the power to fix this by ordering that the solicitor general brief be withdrawn or significantly amended. Unfortunately, it may take an uprising by voters to rein in the Justice Department.

*John Lott is the author of the book, Freedomnomics upon which this piece is based and is a Senior Research Scientist at the University of Maryland.