Friends, foes of guns file DC gun rights case briefs
March 1, 2008

by Joseph P. Tartaro
Executive Editor

The Supreme Court of the United States (SCOTUS) is petitioned to hear hundreds of thorny cases each year but grants certiorari (a full review) to a relative few. There is just so much time that the court can devote to review complex cases, most of which have ramifications that affect people, businesses and institutions as well as federal, state and local governments, even when the subject issues appear to be narrow. The court begins its session on the first Monday in October each year and ends in late June of the following year.

When SCOTUS does decide to hear a case it is often because two or more appellate courts have ruled differently on the same issue. That is what happened when the federal Circuit Court of Appeals for the District of Columbia ruled last Spring that DC’s gun laws violated the individual right guarantee of the Second Amendment. Earlier, the 5th Circuit Court of Appeals also interpreted the Second Amendment as guaranteeing an individual right while the 9th Circuit and others have ruled that the Second Amendment guarantees the states’ right to organize a militia.

Thus the two sides of the issue: Does the Second Amendment guarantee an individual right to arms to those not serving in a militia? Or does it guarantee a collective right to the states? Of course there are those who believe as I do that it guarantees both, the subject of a Hindsight column years ago entitled “Musket on the mantel, Cannon on the Green.”

By deciding to review the DC Circuit decision, the Supreme Court has decided to narrowly rule on those questions at the core of the great firearms civil rights debate, a long-running argument that has divided citizens, lawyers, the courts and lawmakers for almost 100 years.

Most Americans believe that the Second Amendment guarantees an individual right to arms, although many also believe that there can be some limitations placed on that right. The individual right belief was sustained for almost 150 years of our nation’s history by what was taught in school textbooks. The collective-right-only theory is of more recent vintage, gaining increased currency beginning about the middle of the 20th century.

Some 70 years ago, the Supreme Court issued what can only be described as a confusing decision in the 1939 Miller case which tested the 1934 National Firearms Act. No one really argued the case on behalf of Miller, a criminal who had been armed with an unregistered sawed-off shotgun.

The anti-gunners have argued that when SCOTUS ruled in the Miller case that a sawed-off shotgun was not a weapon suitable for militia service they also ruled against the individual right theory. Pro-gunners read the decision differently, even claiming that it supports the individual right interpretation.

So, for about 70 years, scholars and lawyers and media commentators have been arguing about what SCOTUS really meant in its 1939 Miller ruling. Was it about who the Second Amendment guarantees the right to arms? Or was it about what arms the individual was allowed to keep and bear?

Seventy or 100 years may seem a long time between rulings, but that is not uncommon when waiting for the Supreme Court to clarify issues. Back in the 1860s, the high court overruled an appellate court in the Dred Scott case, and denied freed black slaves of basic human rights. It took almost 100 years and a different high court to reverse that mistake.

So, while issues may be important and timely to the petitioners, to the public and to other branches of government, the rulings of the high court remain slow, detached and Olympian—as well as reversible.

Now the public awaits new clarity from SCOTUS. Most, but not all, gunowners and individual rights theorists were delighted when Washington, DC, petitioned for a review of the DC appellate court’s 2007 ruling in Parker vs. District of Columbia, and SCOTUS granted certiorari. When the court decided to rule on the question, the case was re-captioned District of Columbia vs. Dick Anthony Heller, the only plaintiff in the original Parker case which the lower court ruled had legitimate standing. Anti-gunners were divided as well, some even suggesting that it was a mistake for Washington, DC, to seek the high court review.

Both sides realized that the court is answerable to no other authority, that its decision could reshape the long debate. Whose rights are protected by the Second Amendment? And what kind of guns are protected?

As soon as SCOTUS announced that it would review the case, lawyers for DC and Heller began preparing their briefs for the high court and for oral arguments now scheduled to be heard on March 18. Not-for-profit organizations and individuals—especially academics and lawyers—also began preparing friend of the court (amicus) briefs which seemed to parse every possible approach to the questions about what the Second Amendment means and what kinds of guns are protected.

Both sides have now crafted, reviewed, printed and delivered 40 copies of their briefs to the nine high court justices and their law clerks. Forty-seven of the briefs, representing an even greater number of organizations and interests because of joint filings, support the appellate court ruling against the DC gun laws. Nineteen support the District of Columbia. Each side has relied upon the best legal minds each could muster to parse the language of the Constitution and Bill of Rights, to dredge through legislative records and law books, and to cite the wisdom of learned scholars.

SCOTUS received briefs from just about every possible pro-gun and anti-gun organization as well as a variety of academics and lawmakers with a side to choose.

The court even got a brief from the Bush Administration’s Solicitor General that managed to argue for both sides in one of the most artful acts of Solomonesque baby-splitting seen in several thousand years. The Bush Administration’s Department of Justice argued both that the Second Amendment guaranteed an individual right to arms and that cities, states and the federal government could infringe that right whenever they could prove the law “reasonable.”

When the Bush Justice Department executed this remarkable example of legal aerobatics, it was not surprising that another unusual event occurred. Vice President Dick Cheney, who is also President of the US Senate under the Constitution, joined 55 senators and 250 representatives in filing an amicus brief supporting the appellate court’s ruling that the Second Amendment guarantees an individual right and that Washington, DC’s laws banning functional firearms in the home for defense violated the Constitution. The lead senator on the Congressional pro-gun brief was Sen. Kay Bailey Hutchison (R-TX). A Republican like most of the friends on that brief, she was joined by eight Senate Democrats and 60 House Democrats.

Needless to say, 18 US representatives—all Democrats—filed their own brief asking the high court to overturn the ruling and support the collective right theory of the Second Amendment, freeing legislators everywhere to decide the issue piece by piece.

Also among the amicus briefs was one supporting the appellate court’s ruling on an individual right submitted by the attorneys general of 31 of the 50 states. A brief seeking reversal of the appellate court’s ruling was filed by the attorneys general of four states and the Commonwealth of Puerto Rico, led by New York’s Andrew Cuomo.

On March 18 attorneys for both sides will have a half-hour each to deliver their final arguments before answering questioned from the nine judges who have read and considered all the briefs, from principles as well as amici. Then the court will probably issue its ruling by the end of June.

No matter what the court decides, the question of individual firearms possession for self-defense will continue to be debated and will become a central issue in the presidential and congressional election campaigns that culminate on Nov. 4.
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