The U.S. Solicitor General is often referred to as the tenth justice of the Supreme Court because the General is the most frequent attorney to appear before the Court, and generally established a close relationship. President Trump today announced that he was nominating acting Solicitor General Noel J. Francisco to the office.
Mr. Francisco has a long track record of generally opposing the administrative state. For reasons mentioned earlier, that’s a good thing as far as Second Amendment advocates are concerned. Administrative law is something akin to a poison gas that the government can use against our constitutionally-protected rights.
Jonathan Adler at the Vololkh Conspiracy blog says that in a 2011 hearing before the U.S. House, Francisco expressed skepticism of the Chevron doctrine. That doctrine requires courts to endorse rules imposed by unelected bureaucrats even if their constitutionality is uncertain.
If the Obama administration’s moves to ban certain 5.56mm ammunition used in many common rifles in 2015 had not been staved off by a huge public outcry, Chevron would have made constitutional challenges to the rule tricky.
Mr. Francisco doesn’t have much of a record on the Second Amendment, which isn’t that surprising given that he served at BigLaw firm Jones Day for the past eleven years. Big firms such as Jones day, like their corporate masters, tend to be institutionally indifferent or hostile to the right to keep and bear arms.
Francisco, however, served as law clerk to Antonin Scalia during the 1997 term and offered these words in remembrance of the late justice last year, which I will leave for your consideration:
One of the great things that Justice Scalia always did with his law clerks before he actually cast a vote in a case is, he would bring the law clerks into chambers, and we would have a pretty open debate….
This one particular case involved the statute that was 18 U.S.C. § 922, which prohibits felons from possessing firearms. It was not a particularly important case, but the issue turned on whether this particular felon had violated this statute by being in possession of a firearm. The clerks were debating pretty vigorously back and forth.
As we went on and on, the Justice swiveled around in his chair with his back to us. At one point, one of the clerks that thought the felon hadn’t violated the statute invoked the Second Amendment, in response to which another one of the more liberal clerks declared, “Well, surely, you don’t think the Second Amendment protects felons.” In response to which, the first clerk declared, “When the revolution comes, we’re going to need the felons, too.”
At that point, I looked up at Justice Scalia, and I saw the back of his head, and he was just bouncing up and down, laughing. Justice Scalia had a wonderful face and an expressive face, but when I remember Justice Scalia, I will always remember the back of his head bouncing up and down in laughter.