THE DEBATE OVER THE SOLICITOR GENERAL'S SECOND AMENDMENT SWITCH:
How It Illustrates Common Misconceptions About His Constitutional Role

By EDWARD LAZARUS

Thursday, May. 16, 2002

Last week, the Solicitor General of the United States informed the Supreme Court that the Department of Justice had decided to fundamentally change its interpretation of the Second Amendment.

The SG is now arguing that the Second Amendment protects an individual's right to possess a firearm for purely personal use. Previously, DOJ had interpreted the Amendment as protecting a right to bear arms only in the context of forming or serving in a state militia. If the SG's new view is adopted by the courts, various gun control laws that previously seemed immune to constitutional attack will, in all likelihood, be struck down as infringing individuals' Second Amendment rights.

Does the Second Amendment Create an Individual, Or Only Militia, Right to Bear Arms?

With respect to the first question, suffice it to say that the Solicitor General has a high hill to climb.

The Amendment itself reads "A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed." Thus, it makes clear that the very purpose of the right to bear arms is to ensure that state militias can exercise that right. To derive an individual right to possess firearms from this text, one must ignore the introductory clause linking the right to keep and bear arms to the maintenance of a well-regulated militia.

One must also ignore the fact that the later phrase "to ... bear arms" has a decidedly militaristic cast - thereby reinforcing the first clause's apparent limitation of Second Amendment rights to the militia context. It is a soldier who "bears arms"; a private citizen simply carries a gun.

Moreover, the individual rights reading of the Amendment depends entirely on interpreting the word "people" as an individualized term - for according to the Amendment, it is the "people" who have "the right . . .to keep and bear arms." Typically, however, the Constitution refers to the people as a unified collective (think of the Preamble's opening reference to "We the People"), not as a group of individuals - as the brothers Amar have previously noted in this forum.

In sum, there is a strong case against an individual rights reading of the Second Amendment. (For more on this view, see FindLaw columnist Michael Dorf's argument to this effect).

Is there also a strong argument on the other side, in favor of the SG's new view? So far, the SG has provided no supporting analysis. Instead, the SG merely announced the reversal of DOJ's view in footnotes embedded in two briefs urging the Supreme Court to deny review in pending gun-related cases. As a result, examination of the merits of the SG's positions, and the argument cited to support it, would be somewhat premature.

Critics of the Solicitor General's Reversal Misunderstand the Office's Constitutional Role

It is not premature, however, to weigh in on the propriety of the Solicitor General's decision to reverse a sixty-year-old departmental position. Critics of the SG's move charge that Ted Olson has violated two separate obligations of the SG's office: first, to remain above politics; and, second, to avoid radical changes in the fabric of the law.

Critics' reaction to the SG's change of heart, however, also betray a deeper misunderstanding of the role of the SG in our constitutional framework.

It has now become received wisdom that the Solicitor General, as the so-called "Tenth Justice," should play some kind of a political mediating role between Executive Branch officials pressing a president's jurisprudential agenda and the Supreme Court. According to this vision of the SG, he (or she) is an independent caretaker of the "integrity" of the law. Much like the justices at the Court, then, he or she owes a strong allegiance to values of respecting precedent and ensuring continuity in doctrinal approach.

There can be no doubt that some veterans of the SG's office did envision their role this way: as providing an institutional check on political change within the executive branch. Nevertheless, the cynic in me sees this view of the SG's office as largely the political creation of liberals horrified by the SG's abandonment of various liberal positions during the Reagan era.

Indeed, it reminds me of a current trend among some leading liberal constitutional scholars, such as Cass Sunstein. These scholars have come to see the wisdom of an "incrementalist" approach to constitutional law - again, an approach that eschews radical change for gradual evolution - during the very era when a pretty radical cadre of conservatives holds sway at the Supreme Court.

It is hardly a coincidence that liberals tend to resist drastic swings toward conservative views, and conservatives tend to resist dramatic swings toward liberal views. As Thurgood Marshall commented in the very different context of ending segregation, when they say "Go slow," they mean "Don't go." This is true whether the movement is to the right or the left.

The Solicitor General's Right - And Perhaps Duty - To Reverse Position At Times

In any event, it seems to me that the SG has every right - indeed, sometimes a virtual obligation - to reverse the views of his or her predecessors in the office. The SG is a political appointee of the President. Presumably, that President has run, and won election, on a platform containing a particular vision of certain constitutional provisions and Supreme Court decisions. In that sense, the President, through the SG, has a democratic mandate to alter the Department of Justice's approach to the Constitution and the case law interpreting it.

This is not a course of action to be undertaken lightly. The SG, as the government's advocate before the Court, has a long-term interest in maintaining absolute credibility. For that reason, he or she has an obligation to present arguments that are well-founded, persuasive, and intellectually honest. (Observing this duty is one justification for the SG's occasional practice of "confessing error" - that is, asking for reversal in a case the Department of Justice has won in the lower courts. This duty also explains why the SG may decline to defend clearly unconstitutional statutes.).

These responsibilities may counsel against advancing new positions with little support either in academia or on the Court. But such prudential considerations do not change the underlying principle that the SG must be guided by a vision of the Constitution - and that vision, appropriately, will reflect the views of the President to whom the SG is ultimately responsible.

It Is Entirely Appropriate For the SG to Mirror President Bush's Gun Control Views

Seen in this light, Ted Olson's reversal of position with respect to the Second Amendment is unobjectionable. President Bush's vision of the right to bear arms was an explicit issue in the campaign. Those who voted for him did so, in part, as an endorsement of his approach to this constitutional question. Thus, it is neither surprising nor inappropriate that his SG should seek to implement a vision of the law shared not only by the President, but also by three members of the Supreme Court.

At the same time, of course, it is equally appropriate that the SG and the President he serves be held accountable for the constitutional vision they espouse. The individual rights view of the Second Amendment that the Administration has now adopted is a problematic one, and for that the Administration and the SG's office should equally be faulted.

This view finds its roots in an anti-federal-government vision of the Constitution that is often troubling and always incomplete. Constitutional history, both at the Founding, and especially after the Civil War era, supports a very different vision - one that embraces the beneficent purposes of the federal Union and casts doubt on the more paranoid view of federal power. Those of us who adhere to this latter vision would be well advised to spend less time griping about our opponents having the courage of their convictions, and more time showing the we have the courage of ours.


Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books, most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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