Friends of the Second Amendment: A Walk Through the Amicus Briefs in D.C. v. Heller

Abstract

The Supreme Court’s grant of certiorari in the “D.C. Gun Ban Case” set off a media frenzy typically reserved for cases involving such culture-war touchstones as abortion, affirmative action, and prayer in schools. And indeed, as Barack Obama discovered to his chagrin when he commented on “bitter” Pennsylvanians who “cling to” their guns, the right to keep and bear arms touches a deep nerve in the American polity.

Also clinging to particulars view of gun rights are the many lawyers, government officials, and political activists of all stripes who generated a record 68 amicus curiae briefs. (The Michigan racial preference cases, Gratz v. Bollinger, 539 U.S. 244 (2003) and Grutter v. Bollinger, 539 U.S. 306 (2003), together generated 104 amicus briefs - 64 in Gratz, 40 in Grutter - but these cases were consolidated for argument and neither one garnered more than Heller has alone.) It is striking to see so many briefs running in opposite directions. There is no agreement on any of the major issues before the Court, such as what the Founders had in mind in writing the Second Amendment, the application of the Amendment to the District of Columbia (and, by implication, to the states), the social science findings about whether gun control reduces violence, and on the constitutional meaning - if any - of Congress’s past adoption of gun control laws.

The core issue is the nature of the right that the Second Amendment recognizes: the D.C. city government ties gun possession to military service; opponents to the D.C. handgun ban label gun possession as an essential part of personal liberty no less than other parts of the Bill of Rights. Plenty of briefs on both sides detail the history of gun rights in colonial times through the present day. (The Cato Institute filed a brief supporting the Respondent, Dick Heller, that focuses on the right to “have and use” arms in England and America leading up to and during the Founding Era. In the interest of full disclosure, I should note that I played a small role in reviewing and commenting on this brief’s final drafts.) Other briefs focus on linguistics, or on how the Second Amendment must mean something different now than when civilians and military personnel used essentially the same arms.

Though the Court is expected to opt for the individual, private right to have guns, the briefs again divide on how to evaluate laws that infringe on this right. Should there be a “reasonableness” standard or “strict scrutiny”? Whatever the standard, if the D.C. ban survives, is anything left of the Second Amendment right?

The amici (19 for the District, 48 for the challengers to the handgun ban, and one for the federal government styled as not taking sides) not only echo the fundamental disagreement on the nature of the right and standard of review, but extend it. Solicitor General Paul Clement urges the Court to find an individual right to possess handguns for self-defense in the home, but also suggests that the D.C. Circuit used the wrong bright-line rule, and so the Court should remand for review under a weaker standard.

Responding to the Solicitor General proposal, many of Respondent’s amici return considerable fire. The Goldwater Institute, for example, assails the government for its “uncomfortable straddle,” accusing the S.G. of advancing arguments that fail on principle and logic or that rise from “flawed premises.”

One notable amicus brief is signed by one Richard B. Cheney, wearing his other hat as President of the Senate, along with a majority of the members of both the House and the Senate. That brief explicitly endorses Judge Silberman’s ruling, advocating a repudiation of the handgun ban in light of Congress’s pro-individual rights legislation. Not surprisingly, a group of Democratic Representatives took it upon themselves to offer a contrary interpretation of Congressional activity.

Among the amicus briefs are competing arguments from former high-ranking Justice Department officials, contradictory interpretations of empirical evidence relating to gun violence, and the pros and cons of whether guns cause more violence against women, gays, racial and religious minorities, the elderly, and the disabled. Linguists battle grammarians, while public health officials reach no more consensus than historians or criminologists. There is no agreement on the correct interpretation of the Court’s 1939 and previous rulings on the Second Amendment, and the degree to which the current Court should be bound by those rulings. State and local governments and prosecutors also line up on both sides, foreshadowing the next stage of litigation. Many (I daresay most) of the amicus briefs repeat arguments spelled out more than adequately in the parties’ briefs - and were likely filed so the particular organization could say to its supporters/prospective donors that it “took a stand” on this high-profile case. But a not insignificant number of the briefs should genuinely help the Court write its opinion.

And so here is a compendium of amicus briefs in D.C. v. Heller. For lack of a better organizing principle, I list them alphabetically, first the Petitioners’ amici, then the Respondent’s, with the U.S. Government bringing up the rear. In addition to a summary of the argument in each brief, I provide the amici’s interest if that is not readily apparent, and any “items of note” (interesting facts, etc.) about the brief. I hope that, when read in the light of the Court’s opinions in the case, this Article can serve as a guide for counsel and potential parties in the Second Amendment litigation that is sure to follow.

Keywords: Second Amendment, Supreme Court, amicus brief, District of Columbia, handgun prohibition, self-defense