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February 12, 2008

Gun Ban Case: D.C. v. Heller

Heller has been in the news recently because the parties and amici have been filing their briefs with the Supreme Court. Along with the consolidated cases making up the Indiana Voter ID case, a decision in Heller is enthusiastically awaited by court-watching conservatives this term. Most people believe that the Court is ready to conclusively decide that the Second Amendment establishes an individual right to keep and bear arms, and not a collective one (or "narrow individual right" as it has been restyled).

I've been amused by the dueling amicus briefs, which raise interesting policy issues distinctly separate from the question in Heller. For example:


Congress
Vice President Cheney and majorities of the House and Senate filed on Friday, arguing that "This court should give due deference to the repeated findings over different historical epochs by Congress, a co-equal branch of government, that the amendment guarantees the personal right to possess firearms," their brief contends." They then recount the various Congressional acts which tend to emphasize an individual right rather than a collective one.

However, a small contingent of Congressmen filed a similar brief (PDF) in January. They also make the claim that "Consideration of, or deference to, Congressís experience as an interpreter of the Constitution, in appropriate circumstances, is entirely consistent with the Courtís role." And then they list the federal acts that point to only a collective right to firearms.

Who is right? Well, they both are. Congress tends to flip-flop a great deal as time passes, although it is clear which way modern Congressfolk lean. My question is that if the majority of the houses support the lower court's ruling overturning the D.C. gun ban, why haven't they changed D.C.'s gun law? Also and completely frivolously, I can't help but point out this awkward sentence in the first line of the linked article:

A majority of the Senate and more than half of the members of the House will file a brief today..."

Last time I checked "more than half of the members" is also called "a majority."

Black-interest Groups
The Congress on Racial Equality argues that gun control laws have historically been used to disarm blacks and other minorities (PDF). The brief goes on to claim that the enforcement of gun control laws by its very nature leads both to illegal searches and other civil rights violations as well as widespread disobedience among the general public. It analogizes gun control to prohibition and then describes the "disaster" that is gun control in the District of Columbia.

Then, of course, comes the NAACP (PDF) arguing that the gun ban does not discriminate based on race, that courts have not generally supported an individual rights view of the Second Amendment, and that blacks are the most frequent victims of gun crime.

To some extent, both briefs miss the mark. Assume for a minute that the NAACP is right that gun bans are not racially discriminatory and that the Equal Protection Clause and the Due Process Clauses are sufficient to remedy any discrimination in enforcement. What does that have to do with whether the Second Amendment calls for an individual or a collective right to keep and bear firearms? Either the Second allows a person to keep a handgun, or it doesn't. But one thing we can be sure of is that the answer doesn't change (as far as the Second Amendment alone goes) depending on whether gun control benefits or burdens black Americans.

Gun Groups
The NRA, of course, filed what will probably be the most-read brief (PDF) aside from those of the parties. It's not that long and it contains a strong argument that gun ban cases like Heller should be subject to strict scrutiny. Strict scrutiny, the protestations of Justice O'Connor notwithstanding, has long been regarded as "strict in form, fatal in fact." Only seven cases have survived strict scrutiny review by the Court. To its credit, the NRA actually uses the Second Amendment's prefatory clause to make its case, noting the language "necessary to the security of a free state."

The Brady Campaign is the major anti-gun group to file in support of the D.C. gun ban, but it looks like they did their best work at the District Court and Circuit Court levels. After their failure to convince the Circuit Court, they changed tactics and suggested that the gun law should be amended in order to moot the case. The Campaign is scared that a Supreme Court ruling favoring an individual right will imperil gun laws in several other cities and states. When that didn't work, they largely recycled the brief that they used before (PDF), a revisionist view of gun rights and gun ownership in colonial and revolutionary America that convinces essentially no one because of the Campaign's now-tarnished reputation when it comes to presenting basic facts about guns and gun-owners.

Opposing the NRA's call for strict scrutiny is the Violence Policy Center and the police chiefs for Los Angeles, Minneapolis, and Seattle (PDF). They claim that gun restrictions are "reasonable" actions by legislatures and that's enough reason for courts to uphold them. It is essentially an argument for rational basis review, the opposite of "strict in form, fatal in fact." Governments rarely lose cases subjected to the rational basis test, which allows government action so long as the government can claim a rational means to serve a legitimate end.

Feminists
There are also dueling briefs for womens' groups. Pro gun-ban National Network to End Domestic Violence, a coalition of domestic violence groups from across the nation, argues that "handguns empower batterers and provide them with deadly capabilities" (PDF). A group of 126 women state legislators and academics also emphasize the problem of domestic violence, but note that one of the best means of self-defense is handgun ownership (PDF), especially for women who might lack the upper-body strength to handle long guns properly.

As with the black-interest groups, these arguments largely miss the mark. Still, the justices like to be able to point towards these types of issues in opinions, especially the dissenting members. I guarantee that if Justice Ginsburg dissents she will point to the pro-ban arguments of the NAACP and the domestic violence groups. Also, Justice Kennedy likes to be able to back up his more wishy-washy concurrences with padding from advocacy groups.

The Supreme Court will hear oral arguments on March 18th. If you want to look at the other briefs (especially those of Heller, hint hint) they are all available here.

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posted by Gabriel Malor at 05:06 AM

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