The 1976 D.C. statute prohibiting ownership of all functional firearms was called unconstitutional a year ago in an opinion by Senior Judge Laurence Silberman, a conservative who has served on the U.S. Court of Appeals for the D.C. Circuit for 22 years. It was assumed that Bush would fight Mayor Adrian Fenty's appeal.Ah George...you really are the moron the Democrats said you were! When you walk through those cow pastures in Crawford, stepping in big piles of your legacy, be sure to remember that in the end you were a coward and a fool, cowed by the fat drunk Kennedy and the loudmouthed thug Schumer...rest assured that we will never forget!
The president and his senior staff were stunned to learn, on the day it was issued, that Clement's petition called on the high court to return the case to the appeals court. The solicitor general argued that Silberman's opinion supporting individual gun rights was so broad that it would endanger federal gun control laws such as the bar on owning machine guns. The president could have ordered a revised brief by Clement.
But facing congressional Democratic pressure to keep his hands off the Justice Department, Bush did not act.
Cheney did join 55 senators and 250 House members in signing a brief supporting the Silberman ruling. Although this unprecedented vice presidential intervention was widely interpreted as a dramatic breakaway from the White House, longtime associates could not believe that Cheney would defy the president. In fact, he did not. Bush approved what Cheney did in his constitutional role as president of the Senate.
That has not lessened puzzlement over Clement, a 41-year-old conservative Washington lawyer who clerked for Silberman and later for Supreme Court Justice Antonin Scalia. Clement has tried to explain his course to the White House by claiming that he feared Justice Anthony Kennedy, the Supreme Court's current swing vote, would join a liberal majority on gun rights if forced to rule on Silberman's opinion.
The more plausible explanation for Clement's stance is that he could not resist opposition to individual gun rights by career lawyers in the Justice Department's Criminal Division (who clashed with the Office of Legal Counsel in a heated internal struggle). Newly installed Attorney General Michael Mukasey, a neophyte at Justice, was unaware of the conflict and learned about Clement's position only after it had been locked in.
Novak holds out the interesting enigma that Clement — apparently another gutless man-of-someone-else's convictions — has hinted that he will change his tune in front of the Justices. We can only hope that Clement grows some balls, which are apparently in very short supply in the Bush White House.
BTW, we were very lucky to get Jim Shepherd onto the floor to actually hear the arguments...there were more than 1200 requests for new credentials to hear the Oral Arguments, and fewer than 100 were approved. SCOTUS, according to Shepherd, did recognize the necessity of admitting some of the pro-gun press...the clerks call the attention on D.C. v Heller "unprecedented."
A quick note that if Novak is right, then Jim Shepherd is the only commentator to hit it spot-on...if you recall in my podcast interview with Jim, he said the whole deal stank of the career bureaucrats in the Department of Justice, many of whom are Clinton legacies.