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Respondents’ Amici

February 12th, 2008 by Clark Neily

Washington, D.C.—Last night’s deadline saw the filing of 46 amicus briefs—including one with more than half the members of Congress as signatories, and another on behalf of 31 states—in the Supreme Court in support of citizens challenging Washington D.C.’s gun ban.  Oral argument in the case, which will decide for the first time whether the Second Amendment protects an individual right of law-abiding citizens to keep guns in their homes for self-defense, is scheduled for March 18.


The Supreme Court has not taken a Second Amendment case in nearly 70 years, and the meaning of the Amendment, which states that the “right of the people to keep and bear arms shall not be infringed,” remains unsettled. Given the sparse legal precedent and the magnitude of the issue, amicus briefs are likely to play an especially important role in the Court’s deliberations.


“Washington, D.C.’s 30-year-old gun ban has accomplished nothing except to prevent law-abiding citizens from exercising their constitutional right to keep and bear arms,” said Alan Gura, lead attorney for the citizens challenging the gun ban.  “We are gratified by the number and the quality of the amicus briefs supporting the Second Amendment, and we are confident that this case will lead to the demise of the Nation’s most draconian—and counterproductive—gun laws.” 


Amicus briefs supporting the right of law-abiding individuals to keep guns in their home for self-defense include the following:


55 Senators, 250 Representatives, and Dick Cheney as President of the U.S. Senate—A bi-partisan group of legislators, representing more than half of the U.S. Congress, along with Vice President Dick Cheney as President of the U.S. Senate, offered a ringing endorsement of the Second Amendment, explaining that Congress has always understood the Second Amendment right to keep and bear arms to be an individual right belonging to “the people,” and arguing that Congress has always been guided by that understanding when considering firearms regulations.


31 States—Led by Texas Solicitor General Ted Cruz, 31 states filed a brief explaining that “the individual right to keep and bear arms is protected by the United States Constitution and the constitutions of forty-four states.”  The 31 amici states also note that “the District of Columbia’s categorical gun ban is markedly out of step with the judgment of the legislatures of the fifty states, all of which protect the right of private citizens to own handguns.”


Military Officers—Washington, D.C.’s Wiley Rein law firm submitted brief on behalf of high-ranking retired military officers representing the Army, Navy, Air Force, Marine Corps and National Guard filed a brief explaining that the “collectivist view” of the Second Amendment advanced by the District and its amici in this case “would undermine both military preparedness and national defense.” 


Criminologists, Scholars, and Physicians—Several briefs challenge key empirical claims made by D.C. and its amici in support of the gun ban.  For example, despite soaring murder rates and its recurring status as “murder capital” of the country, the city claims its handgun ban has actually reduced the number of homicides that would otherwise have occurred.  But amicus briefs submitted by various criminologists, scholars, and physicians—including Harvard medical school professors and the American Association of Physicians and Surgeons—utterly demolish that claim, showing that the studies upon which it is based are deeply flawed.  Indeed, the National Academy of Sciences concluded that those studies provided “no conclusive evidence with respect to the impact of [handgun] bans on crime and violence” and were “not tenable.” 


Goldwater Institute challenging the Solicitor General’s “remand” argument—The Goldwater Institute filed a brief taking to task the Solicitor General and the Justice Department for suggesting that the Supreme Court should duck the question of whether D.C.’s handgun ban violates the Second Amendment and instead remand the case to the lower courts to reconsider that question based on a different, lower standard of constitutional scrutiny than the one traditionally applied in evaluating government regulations of “fundamental” rights. Contrary to the Solicitor General’s position, a remand in this case would not be consistent with the Court’s customary practice and would not serve any useful purpose.


“Errors” brief correcting common myths and misrepresentations about the Second Amendment—A brief filed by the Citizens Committee for the Right to Keep and Bear Arms and others offers the Justices a “one-stop shopping” guide to the many myths, misrepresentations, and outright falsehoods offered by D.C. and its supporters in seeking to render the Second Amendment a dead letter.  Among the 18 different errors documented by the brief is the District’s claim that it merely bans handguns while permitting home possession of functional firearms for self-defense.  Documenting the District’s own conduct over the years—which includes prosecuting people for engaging in lawful self-defense using forbidden weapons—the brief shows how utterly baseless and disingenuous that claim is.

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