Gun Case Causes Bush Administration Rift - New York Times: "Vice President Dick Cheney was nonetheless so provoked by Mr. Clement’s approach that last month he took the highly unusual step for a vice president of signing on to a brief filed by more than 300 members of Congress that asks the Supreme Court to declare the District of Columbia law “unconstitutional per se.” (Mr. Clement’s brief, by contrast, says that “a per se rule is clearly out of place in the Second Amendment context” because at the time the amendment itself coexisted with the “reasonable restrictions on firearms” that were in place at the time.)"
From the standpoint of gun rights advocates, the Bush Administration has screwed up the DC v. Heller case to a degree that is unforgivable. If you read this article by Linda Greenhouse you will understand why. The case is to be argued before the USSC tomorrow.
We will see within a few months whether the administration's stumbling over its own feet will lead to the USSC obliterating the 2nd Amendment. Whatever happens in that case, my personal belief is that the Bush Administration has the lowest level of legal competence that I have seen in any administration of my lifetime. It is as though nobody from top to bottom understands that there is such a thing as legal competence, as distinct from political skills or blind loyalty. The Harriet Myers nomination to the USSC was ridiculous. The Alberto Gonzales regime (as Attorney General) was awful. Both of them were appointed because they were Bush cronies, as though the administration were completely tone-deaf on the issue of legal competence and independence of judgment. The positions the administration has taken on executive power in the war on terror have been soundly rejected by the appellate courts, including the USSC, for the most part. At the trial court level, there have been a number of failed prosecutions of people supposedly connected to terrorism--not guilty verdicts or convictions on relatively minor charges. Why were these people prosecuted, if the evidence wasn't there to convict them? Competent prosecutors with the power to make independent judgments don't spend years on lost causes. Either these US attorneys weren't competent, or they didn't have the power to make their own decisions on whether to prosecute. And Bush's decision not to veto McCain-Feingold, on the mistaken belief that the USSC would declare it unconstitutional, was another huge miscalculation.
Now, on an issue of tremendous importance to the Republican base and millions of Americans, the administration has managed to make a colossal strategic blunder. The Heller case may be a 5-4 decision where Kennedy makes the difference one way or another. I think the outcome will be that the 2nd Amendment protects an individual right, but the key is whether it is a fundamental right that requires elevated scrutiny (so that the state needs a major justification to infringe on the right), or whether it is subject to any "reasonable" regulation. The rational basis test means the government nearly always wins and just about any regulation short of a total gun ban will be constitutional. The screwup of the Bush administration ultimately works in favor of the rational basis test, which will be a disaster for gun rights advocates. Will demolition of the 2nd Amendment be part of Bush's legacy? Stay tuned.