VP Differs with SG in Dueling Briefs Filed in Supreme Court Gun Case
Vice President Dick Cheney and more than 300 members of Congress have filed an amicus brief asking the Supreme Court to find the handgun ban by the District of Columbia is “unconstitutional per se.”
The congressional brief differs with the position taken by Solicitor General Paul Clement in his brief filed with the court, the New York Times reports. Oral arguments in the case will be held Tuesday.
Clement’s brief argues the Second Amendment protects an individual right to bear arms but does not ask the court to strike down the gun-control law, the Times says. Instead, the brief says the court should return the case to the U.S. Court of Appeals for the District of Columbia Circuit for a more nuanced analysis than its previous opinion in the case. The appeals court’s prior decision striking down the law took an approach that was too categorical, according to the brief, and it could threaten federal gun regulations such as the ban on machine guns. Clement contends the proper standard courts should apply is heightened rather than strict scrutiny of gun control laws.
Sen. John McCain has signed the congressional brief, but Senators Hillary Clinton and Barack Obama did not, the Washington Post reports. The two Democrats say they support an individual right to bear arms, but it should be subject to some restrictions.
The dispute over Clement’s brief underscores that a high court finding in favor of an individual right to bear arms will not be the end of the debate, the Times says. “The court would then have to move to the next stage, defining what an individual right actually entails and what government regulations it permits. In constitutional analysis, this is where the rubber meets the road,” the Times story says.
Meanwhile, a lawyer representing the security guard who challenged the law does not own a gun, the Associated Press reports. The lawyer, Robert Levy of the libertarian Cato Institute, is also bankrolling the case, the story says. That fact was also reported in the ABA Journal’s early preview of the case last November.
Levy has asked the court to adopt a strict scrutiny standard, which would endanger more gun-control legislation than a heightened scrutiny analysis. He told the Washington Post that returning the case to the D.C. Circuit would be a “death knell.”
