D.C. v. Heller: “As the Bush Administration Turns”

There is apparently more drama behind the scenes of the Supreme Court case considering the constitutionality of Washington, D.C.’s gun ban than in a daytime soap opera. Now comes word of conflict within the Justice Department over the case, and claims that both Attorney General Michael Mukasey and the White House were surprisingly out of the loop.

But before we get to the latest episode of this serial, let us recap:

– We knew that the Supreme Court agreed to consider whether the Court of Appeals was right in striking down Washington’s handgun ban as unconstitutional under the Second Amendment in D.C. v. Heller.

– We knew that, just weeks after the Court granted cert, the District’s legal department had a little shakeup, with Attorney General Linda Singer (left) resigning after clashing with Peter Nickles, general counsel of Washington Mayor Adrian Fenty. We also knew Nichols fired the attorney on the case, Supreme Court advocate Alan B. Morrison (who was hired by Singer), replacing him with Walter Dellinger.

– We also knew that Solicitor General Paul Clement took a less-than-hard-line stance on the case on the government’s behalf, arguing that the case should be remanded back to the appeals court for clarification, lest federal gun control efforts be put in peril by a potential Supreme Court affirmation. The move surprised some, given President George W. Bush’s strong support for the right to keep and bear firearms.

– We knew that, in another things-aren’t-as-they-seem moment, the majority of both houses of the Democrat-controlled Congress filed a brief urging the Court to affirm the Court of Appeals’ ruling and hold that the Second Amendment prohibits the gun ban.

– Finally, we knew that Vice President Dick Cheney signed onto that brief, in his capacity as President of the Senate, and thus went against the administration’s stance.

Got all that? Good.

Now today, Robert Novak writes that Clement’s brief was the result of an internal Justice Department clash, claiming the attorneys in the Justice Department’s Criminal Division oppose the individual gun right argument, while the Office of Legal Counsel is firmly for the right to bear arms.

What’s more, Novak claims that the White House was completely blindsided by Clement’s position, and that Attorney General Michael Mukasey was unaware of the battle raging between the Criminal Division and the OLC under his command.

It is worth noting that Georgetown professor Marty Lederman, a former attorney advisor at OLC, is quite skeptical of Novak’s claims. In a post on SCOTUSBlog, Lederman said: “No doubt the White House (or certain components in it) now wishes to wash its hands of any responsibility for the DOJ filing – hence the leaks to Novak. But the story they’re shopping doesn’t make sense.”

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