If the Second Amendment challenge to the District of Columbia's handgun ban was the silver bullet designed to target increasingly restrictive gun control laws, then the friend-of-the-court brief filed last Friday by the Solicitor General of the United States could be the bulletproof vest that protects such restrictions from constitutional peril.

In what many observers thought was a surprising move, the Bush administration's chief lawyer before the Supreme Court of the United States filed a brief supporting neither party in the landmark gun rights test case.  Instead, Solicitor General Paul D. Clement staked out the middle ground, urging the justices to rule that the Second Amendment "protects an individual right" to "keep and bear Arms," but not that the D.C. handgun ban is unconstitutional.  That latter determination should be saved for another day and another court, according to the brief, because "the better course would be to [send] the case [back] for further proceedings consistent with the Court's opinion."

Specifically, the Solicitor General's brief argues that the court below, the U.S. Court of Appeals for the D.C. Circuit, got the case only half right when it struck down the D.C. gun law.  The "court of appeals correctly held [that] the Second Amendment protects an individual right to possess firearms, including for private purposes unrelated to militia operations," the brief states.  "But like other constitutional rights, that individual right is subject to reasonable restrictions," the brief continues.  As a result, the brief questions the "categorical approach" the D.C. Circuit took in deciding the case.

As highlighted in the filing, the D.C. Circuit "concluded that, '[o]nce it is determined ... that handguns are "Arms" referred to in the Second Amendment, it is not open to the District to ban them."  But such an unequivocal ruling worries the U.S. Department of Justice because, according to the brief, it "would cast doubt on the constitutionality" of "existing federal laws regulating firearms."  Indeed, throughout the brief, the Solicitor General makes it perfectly clear that the administration believes any number of firearm restrictions and regulations are consistent with the Second Amendment and remain valid.

To be sure, few people would question the utter reasonableness and inherent rationality of the vast majority of limitations cited by the Solicitor General as wholly consistent with and totally unaffected by an individual's right "to keep and bear Arms."  After all, these include the federal law prohibiting convicted felons and "mental defective[s]" from possessing guns, as well as rules forbidding guns from being brought aboard airplanes or into federal buildings.  But the way in which the Solicitor General's brief attempts to protect these "reasonable restrictions" from future constitutional attack has the effect, whether intentional or not, of draining any substance from the individual right specifically mentioned second in the Bill of Rights.

In fact, the whole point of the Solicitor General's brief is that the highest court in the land "should adopt a more flexible standard of review" when it comes to deciding Second Amendment cases.  In other words, for the Solicitor General, while it is necessary to acknowledge that the Second Amendment "protects an individual right to possess firearms ... for private purposes," it is far more significant that the justices take note of the "reasonable restrictions and important exceptions" to that constitutional guarantee.

This position puts the Solicitor General — and the Bush administration that he represents — in the line of fire from both sides of this landmark litigation.  It is not a popular position with the D.C. residents who challenged the handgun ban, not to mention gun rights advocates, because the Solicitor General's recommendation is that the High Court simply put off any final decision to a later date while leaving as much room for error as possible.  And, the position is equally unpopular with the District's lawyers, as well as gun control activists, because it directly contradicts their belief that individuals enjoy no right under the Second Amendment at all.

In any event, the misguided entry of the Solicitor General as a third combatant in the fight over the meaning and application of the Second Amendment guarantees one thing — no one arguing before the justices in a couple months will have any cover.