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NRA brief in DC v. Heller:

The NRA amicus brief in DC v. Heller is now on-line. Although the Court will be deluged with amici, the NRA brief is likely to get a close read, for the same reasons that Justices pay close attention to the AFL-CIO brief in a labor case, or the ACLU brief in a free speech case. Here's a summary:

Part I goes through the major textual and structural arguments of the Second Amendment as an individual right. Does not use a lot of Framing Era quotes (of which there are a lot in Respondent's brief, and will be more in other amicus briefs). Explains how the right of the people to keep and bear arms makes possible the existence of a well-regulated militia. This argument is supported, in part, by a discussion of the NRA's own history is promoting marksmanship and safety training, including its leading role in certifying police firearms instructors. My favorite part is President Truman's letter thanking the NRA for its efforts during World War II, which "have materially aided our war effort."

Part II argues for a strict scrutiny standard in review of gun laws, based on Supreme Court precedent. It distinguishes "fundamental" from the way that term is used in deciding whether to incorporate a criminal procedure provision from "rights fundamental to our democracy." It notes that the Second Amendment declares itself to be "necessary to the security of free state", and therefore must be fundamental to American democracy itself.

The NRA brief engages the argument raised in pro-DC amicus from Professors Winkler and Chemerinsky. They had argued for a "reasonableness" standard of review (with "reasonablness" meaning, in effect, that almost any law short of total destruction of the right is permissible). The W&C brief reasoned that viewpoint discrimination is impossible in a Second Amendment context, and that therefore strict scrutiny is unnecessary. The NRA responds that viewpoint discrimination certainly is possible, especially under a weak standard of review, since gun laws could be used to disarm political opponents. The point could have been illustrated by abundant historical examples, but perhaps space limitations precluded this.

Part III addresses crime and accident statistics, and points out that only a minute fraction of the 200 million guns in America are misused. Modern state court cases (e.g., Rhode Island's Mosby v. Devine) as well as common law classics (Semayne's Case) are deployed to argue for the right of armed self-defense in the home.

The comments section of my previous post (on Heller's brief) was impressively thoughtful, as it was clear that commenters had read the Heller and DC briefs, and were offering commentary to advance the discussion. (Rather than getting into troll-fights over gun policy in general.) Commenters, keep up the good work! Please read the NRA brief before commenting, and of course also read the Winkler-Chemerinsky brief if you want to comment on the standard of review issue.

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