Clark’s Op-ed “The District of Columbia: No guns, still deadly” was published in the Minneapolis Star Tribune on March 16th.

This is quite a change from Prof. Tribe’s position in May, 2007.  At that time, in correspondence with us, Tribe said he would consider playing a “more central role” in our case, with the aim of helping us appeal to justices he perceived to be centrist and left of center.  It’s difficult to see how his current position would accomplish that goal.

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.

Of course, we would not begrudge the U.S. Solicitor General’s desire for argument time as well.  However, considering his position is adverse to our clients, it would be inappropriate for him to detract from our argument time.  Accordingly, we suggest to the Court that should the U.S. Solicitor General desire argument time, he be granted such time in addition to, and not instead of, the parties’ time.

We do try to get these up as soon as we can.  The deadline for friend of the court briefs in support of the Second Amendment is Monday, February 11, and we expect many more briefs to be filed that day.   We’ll be updating the website sometime late Monday to reflect all the briefs that we’ll be receiving.

In March, the U.S. Court of Appeals for the District of Columbia Circuit declared D.C.’s gun prohibition laws to be unconstitutional. The city, with encouragement from the attorneys challenging the gun ban, asked the Supreme Court to review that decision. The Court agreed in November and set oral argument for 10 a.m. on Tuesday, March 18. A final decision is expected by June 30, 2008.

This historic brief marks the first-ever substantive merits argument filed in the Supreme Court on behalf of Second Amendment rights. In the only previous Supreme Court case addressing the Second Amendment, United States v. Miller (1939), the individuals claiming their rights were not represented by counsel and entered no appearance before the Court. This time, Second Amendment rights are being vigorously defended.

“The Second Amendment secures for Americans an individual right to defend themselves and their loved ones, at home, with ordinary firearms,” declared lead counsel Alan Gura of Gura & Possessky, P.L.L.C., who will argue the case before the Supreme Court. “The evidence of this simple truth is overwhelming, whether one looks at the Second Amendment’s text, structure, or history. When a fundamental right is at stake, the Supreme Court should rigorously scrutinize government regulations. And when a city tries to completely ban the exercise of a fundamental right, as Washington, D.C. has, the courts must step in and declare the law unconstitutional. If the D.C. ban is upheld, then every gun law, no matter how invasive, will be rubber-stamped by the courts and the Second Amendment will mean nothing,” added Gura.

“Residents of Washington, D.C. are not second-class citizens,” explained Clark Neily, co-counsel to the respondent and a Washington, D.C.-area public interest lawyer who specializes in constitutional litigation. “They enjoy the same right to defend themselves with ordinary firearms of their choice – including handguns – as the citizens of any other state, none of which bans handguns or functional long guns the way Washington, D.C. does.”

Robert Levy, a senior fellow in constitutional studies at the Cato Institute and also co-counsel to the respondent, stated, “The right to protect oneself in one’s home is among the most fundamental of all rights. The Second Amendment unambiguously states the ‘the right of the people to keep and bear arms shall not be infringed.’ It is time for the Supreme Court to recognize what the vast majority of Americans already recognize - namely, that the Constitution protects their right to keep commonly used firearms in their homes for lawful purposes.”

# # #

Meanwhile, insightful commentary on the issue is here.

For background on the DOJ’s position, please see here.