Presidential constitutionalism and civil rights.

• Author: Landau, Joseph
• Position: II. Presidential Constitutionalism as Civil Rights Enforcement F. Guns through Conclusion, with footnotes, p. 1752-1785

6. Guns

   Since the 1980s, presidential administrations have used constitutional interpretations to lay the groundwork for, and ultimately realize, an interpretation of the Second Amendment providing for an individual right to bear arms. An early example of that effort took place in 1984, when President Ronald Reagan remarked at a campaign rally "that law-abiding people who want to protect their home and family have a constitutional right to own guns." (187) Under the direction of Attorney General Edwin Meese, the Reagan Administration championed the rights of individuals to keep and bear arms under the Second Amendment as well as a number of other traditionally conservative causes. (188) Through DOJ directives, as well as a strategy to carefully select judicial appointees who were partial to the administration's view of the Second Amendment, (189) President Reagan helped to lay a groundwork that was later advanced through the concerted efforts of President George W. Bush, whose Administration successfully promoted the expansion of an individual right to bear arms (190) that paved the way (191) for the Supreme Court's 2008 decision in District of Columbia v. Heller. (192)

   While prior administrations took differing approaches to Second Amendment interpretations, (193) the Bush Administration waged a push for an individual rights interpretation of the Second Amendment in May 2001 when then-Attorney General John Ashcroft wrote a letter to the National Rifle Association of America indicating that the Bush Administration might support such an interpretation of the Second Amendment. (194) The move represented a marked shift from that of prior administrations. (195) During the lead up to Heller, lawyers began citing the Bush Administration's stance on the Second Amendment as a basis to dismiss weapons charges against their clients (196) and to "assert[] Second Amendment defenses to gun charges." (197)

   Bush's gun rights record proved to be an asset in his 2004 reelection campaign; (198) after winning reelection, he appointed John Roberts and Samuel Alito to the Supreme Court, both of whom proved important in securing the Second Amendment interpretation the Bush Administration favored. (199) In District of Columbia v. Heller, the Court adopted the individual rights interpretation and struck down a gun regulation for the first time. (200) In Heller, Bush's Solicitor General Paul Clement supplied an amicus brief that advocated for a Second Amendment right to bear arms. (201) The Clement brief also put DOJ in the somewhat awkward position of questioning a federal statute in the form of a District of Columbia gun-control measure. (202) In the end, Heller represented a huge victory for the Bush Administration that has proved to be quite durable; during the 2008 election, both presidential candidates eagerly declared their support for the Heller decision. (203) In 2010, the Supreme Court reaffirmed its interpretation of the individual right to bear arms by applying the rule against the states through the Fourteenth Amendment's Due Process Clause. (204) Heller exemplifies how the Bush Administration capitalized on a vibrant social movement and academic writing (205) to mount a successful campaign that implemented a vision of the Second Amendment right that shifted dramatically from prior administrations.

   3. PRESIDENTIAL CONSTITUTIONALISM AND GAY RIGHTS

   Barack Obama, for his part, has been a staunch supporter of the rights of LGBT individuals and same-sex couples. Among his various efforts to promote LGBT equality, Obama's refusal to defend DOMA represents one of the more controversial policy decisions of his first term. While the Obama Administration originally defended DOMA in the handful of suits it inherited from the second Bush Administration, (206) it changed course shortly after Windsor was filed in district court, announcing on February 23, 2011 (207) that it would no longer defend the constitutionality of the statute based on its conclusion that the federal courts should accord heightened scrutiny to all laws facially discriminating on the basis of sexual orientation. (208) The Administration would continue to enforce the statute unless it were legislatively repealed or "the judicial branch render [ed] a definitive verdict against the law's constitutionality," but it would not defend it in court. (209) This enforce-but-not-defend policy was one of the hallmarks of Barack Obama's commitment to the rights of same-sex couples.

   President Obama's nondefense of DOMA was part and parcel of a years-long campaign to advance LGBT rights in which he often personally championed equality for same-sex couples. His commitment to this principle included not only refusing to defend DOMA, but also supporting and signing legislation, (210) pursuing regulatory initiatives, (211) filing complaints and other court papers, (212) making formal and informal choices in law enforcement, (213) and using the bully pulpit to sway public opinion. (214) These acts, considered as a whole, reflect ways that the executive engaged the judiciary in a dialogue about constitutional interpretation and legal change that neither branch was likely to bring about on its own.

1. Gay Rights and Administrative Law

   For years, DOMA prevented the federal government from granting marriage-based benefits to married same-sex couples. However, the Obama Administration--by interpreting laws other than DOMA--expanded relationship benefits to married and unmarried same-sex couples in employment, housing, health care, and immigration. (215) Through a series of presidential memoranda, (216) the federal government extended employment-based benefits to the same-sex domestic partners of federal employees (and in some cases to the children of those partners) (217) and to the same-sex domestic partners of foreign-service employees. (218) The Administration also enhanced hospital visitation rights for same-sex couples, (219) broadened its interpretation of the Violence Against Women Act to include victims of same-sex gender-motivated violence, (220) expanded Family Medical Leave Act protections to the children of an employee's same-sex partner, (221) and enlarged fair housing protections to prohibit sexual-orientation-based discrimination. (222)

   In the immigration context, the Obama Administration adopted new rules allowing couples returning from overseas travel to file a single customs declaration form (223) and facilitated the process of extending the immigration status of the same-sex partners accompanying nonimmigrants (224) to the United States. (225) The Obama Administration also reversed a previous Bush Administration policy regarding the compilation of Census data that refused to recognize the existence of married same-sex couples. Under the former policy, the Bush Administration would "edit" responses to Census survey questions by changing the designation in which a respondent indicated a same-sex husband or wife living within the same household from "married" to "unmarried partners" instead. (226)

   The Obama Administration initiated a series of additional developments for LGBT individuals including prohibiting job discrimination based on gender identity throughout the federal government; (227) interpreting the gender-based employment discrimination protections of the 1964 Civil Rights Act to apply to transgender individuals; (228) permitting military chaplains to officiate at same-sex weddings in states that recognize the right of same-sex couples to marry; (229) and adding an LGBT representative to the diversity program at each of the 120 prisons the Federal Bureau of Prisons operates. (230)

   President Obama also took quick action after Windsor by directing his Cabinet "to review all relevant federal statutes" and implement the decision "swiftly and smoothly." (231) Shortly after the ruling, federal agencies announced that same-sex married couples--irrespective of domicile--would receive the same federal benefits as different-sex couples in the processing of tax, Social Security, military, and other federal benefits. (232) Months after Windsor, the Obama Administration issued a broad memorandum extending the ruling to a number of additional contexts including bankruptcy law, prison visitations, and various benefits programs such as the September 11th Victims Compensation Fund. (233) The President also refused to enforce two provisions of federal law after Windsor that prevented veterans in same-sex relationships, as well as some similarly situated active-duty servicemembers and reserve members, from receiving certain benefits. (234)

2. Gay Rights Litigation

   In the DOMA litigation, the Obama Administration advanced powerful arguments supporting heightened scrutiny that documented a history of governmental discrimination against LGBT persons. (235) Outside the DOMA context, the Obama Administration intervened in a number of anti-bullying lawsuits brought by private individuals against public school districts, including one case against Minnesota's Anoka-Hennepin School District for frequent acts of harassment against gender-non-conforming students. (236) DOJ also intervened in a lawsuit against the Mohawk Central School District for failing to prevent in-school incidents of gender-based bullying. (237) In another case, the Obama Administration reached a settlement agreement with the Tehachapi Unified School District in Tehachapi, California, to resolve an investigation into acts of harassment against a gender-non-conforming middle-school student who committed suicide after being subjected to repeated incidents of sex-based harassment. (238)

   In the fair housing context, (239) the Obama Administration entered into a settlement agreement with Bank of America to resolve a claim that the bank had denied financing to a Florida couple based on sexual orientation and marital status. (240) The Administration also settled a dispute by agreeing to issue full severance pay...