The View From Cambridge: Professor Fried on the Guns Case
This is the second in our 2-part series on the guns case from prominent professors at Harvard Law School. This op-ed was written by Charles Fried, a former US Solicitor General and teacher of current Solicitor General Paul Clement. Part 1 in this series, an op-ed by Professor Laurence Tribe, is here.
In 1992 I gave Paul Clement, then a third year law student at the Harvard Law School, now the Solicitor General of the United States, an A in my seminar on appellate advocacy. Based on his position in the District of Columbia gun case, he deserves that grade again"”for skillful advocacy, to be sure, but for character and sound judgment as well.
The Second Amendment in its entirety 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." In 1939 the Supreme Court said almost in passing that the amendment was no more than an endorsement by the new national government of the continued status of state civilian militias; it did not announce an individual right at all. There is a lively debate among constitutional scholars whether that Delphic sentence compels one or another of these readings. Unlike my colleague Laurence Tribe, I think that debate is at best a draw. And the historical debate about the "original meaning" of the amendment is wholly inconclusive and adorned with comical episodes like the conferral and subsequent withdrawal of the historians' coveted Bancroft prize on work defending the pro-militia anti-individual rights interpretation.
The extreme interpretation, supported by among others the NRA and Vice-President Cheney, has it that the amendment not only enacts a right addressed to individuals"”like the right to a jury trial in criminal cases"”but also that the government may limit the right to keep and bear arms only for the most compelling reasons, those reasons being subject by the courts to what in constitutional law parlance is called strict scrutiny. That is the level of skeptical scrutiny to which the courts subject regulations of speech and religion or government impositions on individuals based on race"”as in the infamous Japanese Exclusion case during the Second World War. The extreme interpretation"”an entire novelty in federal jurisprudence"”would invalidate or put in doubt hundreds of weapons bans and regulations and tens of thousands of criminal convictions across the country. It would, for instance, cast doubt on bans of the regulation of machine guns, sawed-off shot guns, automatic weapons, silencers, and "cop-killer" bullets. It would propel across the nation, already awash in weapons of every description, a tidal wave of lethal weaponry that with the return of sanity could hardly be reversed.
Clement's legal argument agreed that the Second Amendment enacts an individual rights. But like other constitutional rights"”most notably the prohibition in the unamended constitution on states "impairing the obligation of contracts""”Clement's argument would allow that right to be subject to reasonable regulation. Indeed he went further towards the Cheney position: the courts must give such regulations "heightened scrutiny," which means more than the cursory constitutional glance cast over economic and welfare regulations: there musty be a demonstrable justification in terms of public safety, a demonstration almost all fire-arm regulations can easily make.
Clement was in a difficult position. He was caught between a signal ideological commitment of some of his Administration's most ardent supporters and his duty as Solicitor General to defend the many federal statutes that the extreme position would put in doubt. And perhaps he felt as well his duty to the public, whose interests in security particularly in an age of terror would be gravely compromised by a contrary ruling. Complicating his dilemma was a remark in an earlier brief by his predecessor endorsing the individual right (but not the "strict scrutiny") interpretation of the Amendment. This is a tight spot that many of us who have preceded Clement in his office will recognize. He negotiated it with verve and integrity. How many in Clement's charged political situation reverse the Gospel injunction to be "cunning as serpents and innocent as doves." I am proud of my former student. A+.
Charles Fried, a professor at Harvard Law School, was Solicitor General in the second Reagan administration. His most recent book is Modern Liberty And the Limits of Government.