In major cases, it’s typical for the Justice Department to file a brief informing the Supreme Court of the position of the United States. The Office of the Solicitor General -- the elite legal team that represents the federal government whenever the United States is a party in a Supreme Court case -- routinely files briefs in high-profile cases.
McDonald is as high-profile is it gets. It presents the question of whether the Second Amendment, like the First Amendment, is a right that law-abiding citizens have against state and local laws, or if, instead, it’s only a right they have against the federal government alone. The entire Bill of Rights, including the Second Amendment, originally only applied to the federal government. When the Fourteenth Amendment was adopted in 1868 after the Civil War, it extended most—but not all—of the Bill of Rights to also apply to cities and states.
Given that there are over 90 million gun owners in this country and thousands of gun control laws on the books—most of them state or local laws—McDonald is a monumental case.
So what is the position of the Obama administration? How can he oppose the rights of 90 million Americans, many of whom are blue collar union workers in swing states that he needs to win in 2012? To do so would also help drive Democrats into the minority in the 2010 midterm elections. On the other hand, how can he reverse his position of more than a decade in supporting Chicago’s absolute ban on firearms?
In this difficult situation, President Obama’s position is … Nothing.