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E. J. Dionne : The Constitution provides for a militia

WASHINGTON

Kayne Robinson is a prophet. Robinson, a first vice president of the National Rifle Association, predicted during the 2000 election campaign that if George W. Bush won, members of his organization would have a president "where we work out of their office."

Robinson was vindicated last week. Reversing government policy rooted in Supreme Court precedent established 63 years ago, the Bush Justice Department supported the NRA's position that the Second Amendment to the Constitution "more broadly protects the rights of individuals" to "possess and bear firearms."

Until last week, as Justice acknowledged in its brief, "the government argued that the Second Amendment protects only such acts of firearm possession as are reasonably related to the preservation or efficiency of militia." The old idea, abruptly cast aside, was that the Second Amendment was written to protect state militias from interference by a large federal army. The courts held it could not be used to invalidate firearms regulations that applied to individuals.

The Justice Department's new position -- stated in footnotes to briefs filed in two firearms cases -- was a bit equivocal. It insisted that even this administration supports "reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of the types of firearms that are particularly suited to criminal abuse." But the legal revolution entailed in these radical footnotes could certainly be used to invalidate "reasonable restrictions" on the books in states and localities around the nation. Where will an administration that claims to love states' rights stand when the NRA uses the Justice Department's language to bring suits against the toughest local gun control laws?

This embrace of NRA jurisprudence is not an aberration. While the administration regularly portrays itself as moderate for much-in-demand "swing voters," it takes one action after another aimed at satisfying "the base," its hard-core conservative supporters.

That's why the administration wants to pick a fight over its conservative judicial nominees. Here again, Robinson is instructive.

In the same address in 2000, Robinson declared that "if we win, we'll have a Supreme Court that will back us to the hilt." Bush blames "raw politics" on the part of Senate Democrats for the delay in getting his appeals court nominees confirmed, thereby creating a "vacancy crisis" in the judiciary.

But who created this "crisis"? When Republicans controlled the Senate, they killed two dozen of Bill Clinton's appeals court nominees, without allowing a vote. If Bush would agree to appoint more moderate judges, or to match qualified conservative nominees with nominees acceptable to moderates and liberals, the vacancy crisis would disappear.

But Bush's conservative base wants a battle over judges. Karl Rove, Bush's resident political genius, told the Family Research Council that the rejection of Judge Charles Pickering, to an appeals court position, "is about sending George W. Bush a message that 'you send us somebody that is a strong conservative, you're not going to get him'." Rove added: "Guess what? They sent the wrong message to the wrong guy."

OK. The Bush administration is free to use judicial appointments and opinions from the Justice Department to show how much it loves "the base." But, please, let's hear no more administration complaints about "raw politics." Robinson understood the power of raw politics two years ago, and he was right.

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