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Congressional Brief in DC v. Heller:

A brief in favor of Respondent Heller has just been filed on behalf of 250 Members of the United States of House of Representatives, 55 United States Senators, and the President of the United States Senate, Richard B. Cheney. In January, a brief in support of the DC handgun and self-defense ban was filed by 18 Members of the U.S. House of Representatives. The latter brief suggests that "Consideration of, or deference to, Congress's experience as an interpreter of the Constitution, in appropriate circumstances, is entirely consistent with the Court's role." Indeed true.

The 250/55/1 brief explains that Congress has repeatedly declared the Second Amendment to be an individual right, in the 1866 Freedmen's Bureau Act, the 1941 Property Requisition Act, the 1986 Firearms Owners' Protection Act, and the 2006 Protection of Lawful Commerce in Arms Act.

OrinKerr:
The Cheney brief keeps making Adobe crash. I blame David Addington.
2.8.2008 4:56pm
Wondering Willy:
I can't read the Members of Congress brief either.
2.8.2008 5:01pm
Point of Fact (mail):
Open it in another window and don't make the window full-size. Worked for me.

Anyway, all the brief says is:

1. Gun control oppresses blacks.
2. Condorcet, Condorcet, Condorcet.
3. List of signatories.

Which is all it needs to say.
2.8.2008 5:04pm
Justin (mail):
Because Cheney signed it, it's confidential. No one can read it, not even the Supreme Court ;).
2.8.2008 5:04pm
dll111:
What are some of the other "appropriate circumstances" when Congress' "experience as an interpreter of the Constitution" should be given deference by the S.Ct.? This seems like a very convenient argument.
2.8.2008 5:16pm
OrinKerr:
On the other hand, it's notable that Cheney is willing to put limits on his own Presidential power -- at least when he's acting as President of the Senate.
2.8.2008 5:17pm
Tony Tutins (mail):
The gun-control bloc's brief is comical: citing City of Boerne v. Flores on the scope of rights that can be guaranteed by Act of Congress (Hint: Congress's attempt to grant more religious freedom didn't trump zoning laws); and quoting Poe v. Ullman without pointing out that Harlan acknowledged that the Bill of Rights guaranteed the right to keep and bear arms. And the "well-settled" argument is ludicrous in a rights context, because it would also have justified continuing Jim Crow laws, prohibiting abortion, and even slavery (It was well settled that blacks were subhuman).

My thought, if the militia is the only object of the Second Amendment: Congress has neglected to arm and train the unorganized militia (whose existence Congress recognized when it passed the Dick Act), so under the Constitution, the militia must be free to arm itself, the NRA doing an admirable job of training the militia.
2.8.2008 5:20pm
Clayton E. Cramer (mail) (www):

My thought, if the militia is the only object of the Second Amendment: Congress has neglected to arm and train the unorganized militia (whose existence Congress recognized when it passed the Dick Act), so under the Constitution, the militia must be free to arm itself, the NRA doing an admirable job of training the militia.
Thank you. I'll take an M240 as my militia weapon. :-)
2.8.2008 5:24pm
Daniel Chapman (mail):
LOL Justin!
2.8.2008 5:35pm
Benjamin P. Hayek (mail) (www):
Worked fine for me.

2nd Amendment is just about all SPH does: http://www.stephenhalbrook.com/
2.8.2008 5:39pm
federal farmer (www):
I liked the brief, but found it odd that they would argue using as an example their own unpassed law that would have mooted the case had they chosen to pass it.

They are essentially saying that they want SCOTUS to remedy the problem that they have the means and intent to remedy. Since a majority of both houses signed on, it would seem they could pass the act and moot the case. If I were the court, I'd think that I wish that I had known there was such support in Congress back when I could have denied cert!

Of course, as a resident of Chicago, I am happy with how things are going.
2.8.2008 5:45pm
federal farmer (www):
By the way, the other side's brief was pathetic. To me it boiled down to "I know we got caught with our hands in the cookie jar, but we've been doing it so long it must be ok."
2.8.2008 5:47pm
wuzzagrunt (mail):
"Error reading linearized hint data" -- Crash!
2.8.2008 5:49pm
BU2L:
Is there a reason that Cheney signed it as President of the Senate, rather than as Vice President? Is that of any significance?
2.8.2008 5:53pm
A.S.:
Is there a reason that Cheney signed it as President of the Senate, rather than as Vice President? Is that of any significance?

Yeah, that's interesting, isn't it? I presume it is because the Administration (qua Administration, of which the Vice President is a part) has filed a separate brief. This is a brief of legislators, and thus we get the Vice President's role as legislator here.

Didn't Glenn Reynolds just write a law review article on the VP's as legislative official rather than executive official?
2.8.2008 5:57pm
Chris Smith (mail):
Justin, you've overlooked some important details:
If the notably ambidextrous* Cheney signed with the right hand, he was thinking Executively, and would therefore render the brief Confidential.
On the other hand (ba-dump-bump) if he went at it south-paw, then he was thinking Senatorially, and it's OK to read the brief.

*This non-fact plucked from the aether strictly for comic effect; actual handedness of the VP is unknown to the writer.
2.8.2008 5:58pm
pgepps (www):
I would say that Chris Smith's analysis is "too good to check" and therefore even if it turns out to be "false but accurate," it must be affirmed; Cheney is ambidextrous, let the Holocaust-denier-like skeptics beware!
2.8.2008 6:22pm
PW:
A simple solution: pass a constitutional amendment that says

"the right of the People to keep and bear arms shall not be unreasonably restricted."

It would pass in a heartbeat. End of all of this textual/historical quibbling.
2.8.2008 6:36pm
Wondering Willy:
PW,

I don't see why we can't just pass a 28th Amendment stating "Each citizen shall possess the individual, fundamental right to keep and bear arms."
2.8.2008 6:39pm
Cornellian (mail):
I'm not unsympathetic to the individual rights approach but it's not clear to me why the opinions of Congress in 2006, 1941 or 1866 should carry any more weight than any random citizen's opinion. It's not like any members of Congress at those times were around at the time the Second Amendment was adopted. If Congress suddenly reversed itself and declared the Second Amendment wasn't an individual right, I don't see why that should carry any weight either.
2.8.2008 6:43pm
PW:
Wondering Willy,

I am not sure I want strict scrutiny applied to the right to bear arms. Under the Court's test, strict scrutiny generally means no restrictions. In the case of the right to bear arms, would statutes restricting the ability of felons to keep arms survive strict scrutiny? I am not sure that such a law would survive the narrow tailoring aspect of strict scrutiny.
2.8.2008 6:47pm
Millenial Klingon (mail):
If Congress suddenly reversed itself and declared the Second Amendment wasn't an individual right, I don't see why that should carry any weight either.

But Congress never has. Over successive iterations of Congress on votes on various bills relating to gun rights, the people's representatives, by supermajorities each time, have come to the very same conclusion since the beginning of the nation. That suggests, inductively, that the right is there. If it's not there, then what does Congress keep making sure to respect on behalf of the vast majority of its constituents? Clearly, millions of millions of Americans throughout history have thought they had such a right. Were they all -- including the Framers -- wrong, simply because RANDOM LIBERAL DUDE ON THE STREET from central casting disagrees?
2.8.2008 6:53pm
Paul Milligan (mail) (www):
If the PDF is bombing, download it ( 'Save a copy' in Adobe ) to your disk, and read it from there. The problem is the download stopping half-way.
2.8.2008 6:53pm
PersonFromPorlock:
federal farmer:

"... but we've been doing it so long it must be ok."

Tcha; longwinded. Just say "stare decisis."
2.8.2008 6:55pm
Elliot Reed (mail):
I hope Congress does not accept the reasoning of this brief (or the opposition brief). The idea that the Supreme Court should adopt an interpretation because it helps get members of Congress reelected is appalling. So much for the rights of unpopular minorities!
2.8.2008 6:59pm
Clayton E. Cramer (mail) (www):

So much for the rights of unpopular minorities!
You mean, like law-abiding residents of DC who want to own a gun?
2.8.2008 7:06pm
Waldensian (mail):

would statutes restricting the ability of felons to keep arms survive strict scrutiny?

Yes. The NRA's amicus brief deals with this issue at some length, and I think quite convincingly.
2.8.2008 7:09pm
Point of Fact (mail):
because it helps get members of Congress reelected is appalling

That quite obviously is a cynical misinterpretation of the brief's reasoning. I guess you're the guy from central casting, eh?
2.8.2008 7:14pm
T. Reed (mail):
Heller majority will find an individual right. I want to move into the post Heller world where the contours of the right are drawn out case by case.

Assume Heller instructs courts to look at post Heller restrictions "with a view toward the'well regulated militia'" purpose (as the NRA defines "well regulated militia").
Could a State ban gun collections of more than, say, 20 guns? Even under a strict scrutiny review standard, a limit of 20 guns might pass muster (kind of a pun there). An able bodied man does not carry 20 guns into battle and a "well regulated" militia is, in part, one that shoots well. If one practices with only 5 guns, one will be better regulated, yes?
2.8.2008 7:15pm
pjh:
Would someone explain to me the argument being made in footnote 6?
2.8.2008 7:16pm
Millenial Klingon (mail):
Footnote 6 is what he snuck in there. LOL.
2.8.2008 7:19pm
Arkady:

I liked the brief, but found it odd that they would argue using as an example their own unpassed law that would have mooted the case had they chosen to pass it.

They are essentially saying that they want SCOTUS to remedy the problem that they have the means and intent to remedy. Since a majority of both houses signed on, it would seem they could pass the act and moot the case.


Couldn't the Court then sidestep the whole issue and say, "Well, you (Congress) have the means and intent to remedy, so you do it."?

Wouldn't that be the nonjudicially-active way to go?
2.8.2008 7:34pm
John Herbison (mail):
Here's hoping Justice Scalia continues to hunt with Vice-President Cheney.
2.8.2008 7:35pm
Kevin P. (mail):
The thought just occured to me: it is possible to actually sit in the Supreme Court on March 18 and listen to the arguments? I have never done this, so I have no idea how difficult this would be. I imagine that there would be immense interest.
2.8.2008 7:38pm
Clayton E. Cramer (mail) (www):

Assume Heller instructs courts to look at post Heller restrictions "with a view toward the'well regulated militia'" purpose (as the NRA defines "well regulated militia").

Could a State ban gun collections of more than, say, 20 guns? Even under a strict scrutiny review standard, a limit of 20 guns might pass muster (kind of a pun there). An able bodied man does not carry 20 guns into battle and a "well regulated" militia is, in part, one that shoots well. If one practices with only 5 guns, one will be better regulated, yes?
Actually, it means that you have enough guns to supply your clueless neighbors that don't have a gun. My book Armed America gives a number of examples of the Revolutionary state governments either requiring or asking people to loan or rent guns to fellow militia men who didn't have one.
2.8.2008 7:44pm
Clayton E. Cramer (mail) (www):

The thought just occured to me: it is possible to actually sit in the Supreme Court on March 18 and listen to the arguments? I have never done this, so I have no idea how difficult this would be. I imagine that there would be immense interest.
Yes, but I'm going to be there in the audience, and if all the rest of you show up, I'll have to stand outside in the cold all night to get a seat.
2.8.2008 7:44pm
Clayton E. Cramer (mail) (www):

Would someone explain to me the argument being made in footnote 6?
I think it means, "We don't believe that it is an either/or question, but there is both an individual right to self-defense, and a right to be armed for the maintenance of republican government."
2.8.2008 7:47pm
Clayton E. Cramer (mail) (www):

Couldn't the Court then sidestep the whole issue and say, "Well, you (Congress) have the means and intent to remedy, so you do it."?

Wouldn't that be the nonjudicially-active way to go?
And leave the Court of Appeals decision in place? Excellent!
2.8.2008 7:48pm
Jr (mail):
Marvelous arguements all, the relationship of rights and powers is very clear. I believe, even without the 2nd Amdt that our "rights" are plainly stated in our Declaration of Independence.

We hold these truths to be self-evident:

That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.

How can I have life if I can't be free to defend/protect it?
How can I have liberty if unarmed and unable to fight for it?
How can I be happy in bondage to a better armed enemy, or worse, a tyranny in our own Capital?

Freedom is the solution to the human condition.
2.8.2008 7:51pm
PJens:
I have tried several times and cannot open it. Is any of the three senatorial canidates (Clinton, Obama, McCain) signatories on the brief?
2.8.2008 7:55pm
cboldt (mail):
Here is the brief, converted to plain text.
.
Congressional Brief in DC v. Heller
.
Which Republican Senators didn't sign? (I'm slogging through the list)
2.8.2008 8:02pm
cboldt (mail):
The following DEM Senators signed (this part is easy)
.
Baucus, Casey, Feingold, Johnson, Lincoln, Nelson (NE), Salazar, Tester and Webb
2.8.2008 8:04pm
cboldt (mail):
Ensign, Lugar and Warner did NOT sign on. That's just from a quick pass through. Caveat emptor. Corrections most welcome.
2.8.2008 8:11pm
Sean Hirschten (mail) (www):
Supreme Court to legislator/president Cheney on deference to Congress -- "Go **** Yourself!"
2.8.2008 9:05pm
Dave Hardy (mail) (www):
I don't see why we can't just pass a 28th Amendment stating "Each citizen shall possess the individual, fundamental right to keep and bear arms."

Aha! "Obviously the drafters of this language simply incorporated the "keep and bear" provisions from the Second Amendment, which we show were only applicable to militiamen serving in a well regulated militia. The probable intentions of the drafters, in changing from 'right of the people' to right of 'each citizen,' must have been concerns that noncitizens were covered by the original 2nd Amendment. (citations to lots of news stories on illegal immigation)."

It's hard to draft language that cannot be perverted *some way*.
2.8.2008 9:08pm
whit:
"Cheney is ambidextrous"

clearly, since Cheney is the Root of All Evil (tm), he must be ambisinistrous, not ambidextrous.

if my latin checks out, that means with two left hands, whereas ambidextrous means with two right hands.
2.8.2008 9:10pm
Lior:
Not being a laywer, I have a "unitary executive" question: under that theory, is it permissible for the vice-president to express opinions that contradict those of the president? I thought Federal agencies needed permission before they could represent themselves in Court (as opposed to having the DOJ represent them).
2.8.2008 9:27pm
David E. Young (mail) (www):
The brief emphasizes that only the people have rights while governments have powers. Let us not forget that "powers" are in fact reserved to the people by the Tenth Amendment.
2.8.2008 10:55pm
AnonLawStudent:
Lior,

The VP is a constitutional office, not an agency. Moreover, he is elected, so the logic underlying the unitary executive doesn't apply.
2.8.2008 11:14pm
Kevin P. (mail):
Senator John McCain signed the brief.

Senators Clinton and Obama didn't sign the brief. But not to worry, they still support the Second Amendment!
2.9.2008 12:05am
Tony Tutins (mail):
Very nice job in emphasizing Congress's consistent individual rights interpretation of the Second Amendment.

I was pleasantly surprised to see DiFazio among the House Democrats signing on.
2.9.2008 1:02am
PW:
Dave Hardy,

An renewed 2nd amendment would likely be interpreted based on the text. There would be no Clauswitzian fog of interpretation since it would be passed in 2008, rather than 1791 and a modern court would soon apply it. Don't forget many state courts are sympathetic, and would interpret the new amendment in a favorable way.
2.9.2008 1:19am
David E. Young (mail) (www):
Dave Hardy is correct. The intent of anyting written can be interpreted into its exact opposite, just as the Second Amemdment has been by supporters of gun control.

Once the historical sources of the two-clause Second Amendment become more clear to everyone, it will become apparent that the authors of the Second Amendment were were truly geniuses. We do not need to change the Second Amendment, just better understand it. There is nothing ambiguous about it if one simply relies on the Founders' own understanding.
2.9.2008 2:35am
Tony Tutins (mail):
Don't forget many state courts are sympathetic

Not the Illinois state courts, the New York state courts, the Massachusetts state courts, the California state courts (no equivalent of the 2nd Amend. in California) etc. etc.
2.9.2008 4:16am
SeaLawyer:

The following DEM Senators signed (this part is easy)
.
Baucus, Casey, Feingold, Johnson, Lincoln, Nelson (NE), Salazar, Tester and Webb


Only 9 democrats in the Senate actually care about civil rights.
2.9.2008 11:04am
whit:
"Dave Hardy is correct. The intent of anyting written can be interpreted into its exact opposite, just as the Second Amemdment has been by supporters of gun control. "

while i am of the school that the 2nd amendment clearly recognizes an individual right, and frankly that prohibition of concealed (or open) carry in ANY state is a violation of the 2nd...

i think it's a bit much too imply that the problems with the 2nd are SOLELY because of the gun-grabbers twisting. it is not written as clearly as it could be.

compare, for example, with what the WA constitution says about gun rights: "SECTION 24 RIGHT TO BEAR ARMS. The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men."

that is certainly clearer than the 2nd. even a liberal could understand it.

i am aware that thankfully even many legal scholars on the left (tribe etc.) have come around to the correct view that the 2nd recognizes an individual right, but let's not pretend that it couldn't have been written better. if it had, like WA's, it would take away some of the gun grabber's ammunition, so to speak.

it's JUST confusing enough to allow gun grabbers something, however slippery, to hang on to
2.9.2008 12:11pm
wekt:
I've always been a bit suspicious of the Supreme Court deferring to Congress on the question of whether Congress has overstepped its Constitutional authority. It's somewhat like an accused person being his own judge. But if the accused person judges his own behavior (or that of his agent) to be illegal, like Congress does here, then it's a different story entirely.
2.9.2008 2:38pm
David E. Young (mail) (www):
In reply to whit's observation that the Second Amendment

"is not written as clearly as it could be."

My view of the Second Amendment is not that of someone in the legal profession, it is of someone who does historical research. The Second Amendment is just as clear as any other provision in the Bill of Rights. The problem is not with the Second Amendment, but rather with those looking at it today being unwilling or unable to find out exactly what the Founders' meant by the language they used or exactly how the Second Amendment came in to being and who was responsible.

The only "correct" view is the Founders' view. From my point of view, which I try to base solely on the understanding of the Founders, the Second Amendment is very clear, even first clause. The well regulated militia clause has a history that is just now starting to be discovered by others.

I have spent, literally, 37 years researching what the Second Amendment meant to the Founders'. My book on this subject was just published on December 21st, 2007 (The Founders' View of the Right to Bear Arms - see the www). It was cited several times in the respondent's brief for Heller.

I urge those who are so sure that the Second Amendment is not clear to look at the historical information and find out why all of the following descriptions that are often used to describe it are largely due to ignorance of its actual history: ambiguous, puzzling, strange, confusing, etc., etc., etc. It's not puzzling to me.
2.9.2008 2:43pm
Justin (mail):
"Only 9 democrats in the Senate actually care about civil rights."

Yes, that's it ::rolls eyes::
2.9.2008 4:30pm
Anonymouseducator (mail) (www):
A Senator could choose not to sign the brief because he doesn't think it's the role of Congress. I don't think it means anything about his position on the Second Amendment.
2.9.2008 4:35pm
wuzzagrunt (mail):
i think it's a bit much too imply that the problems with the 2nd are SOLELY because of the gun-grabbers twisting. it is not written as clearly as it could be.

Yes, it is perfectly reasonable to take the position that "shall not be infringed" is really code for "may be infringed upon for any reason whatsoever".

Change the wording to reflect a right to abortion, or same sex marriage, and we'd see how confusing liberals find it.
2.9.2008 4:55pm
PersonFromPorlock:
As far as the Second's not being clearly written goes, it's worth noting that the Bill of Rights was generally crunched unmercifully, I suspect in an unfortunate attempt at brevity. The First Amendment, for instance, contains five 'clauses', any of which could have been presented as an amendment on its own and none of which really relates to the others.

As regards the Second Amendment, Section Seven of "The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to Their Constituents" proposes:

7. That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil powers.

Crunch this and you end up with something very like the Second Amendment, which arguably means that the Second ought to 'unfold' into something very like the Pennsylvania dissenters' original.
2.10.2008 11:33am
David E. Young (mail) (www):
The Second Amendment is based on a two-clause provision prepared by George Mason as a proposed Bill of Rights for the Virginia Ratifying Convention. He presented both the well regulated militia and people having a right to keep and bear arms as declarations. Mason based his Bill of Rights directly on the 1776 Virginia Bill of Rights that he wrote. He included provisions from other state bills of rights as part of his new Bill of Rights. This is the source of the two-clause Second Amendment.

It was Mason's "model" Bill of Rights that Madison promised to support the provisions of. It became the model for all four of the last ratifiying conventions. Virginia adopted it almost verbatim. North Carolina copied Virginia verbatim. Mason sent his Bill of Rights to New York Antifederalists who used it as the basis New York's Ratification Declaration of Rights. Later, Rhode Island relied on New York's Declaration of Rights.

This and a lot more information is all available in the book that is cited several times in the respondent's brief, The Founders' View of the Right to Bear Arms. It represents a lifetime of research, and as noted previously, was just published on December 21st. Very few people are aware of its existence yet. If you are interested, go to the www above.
2.10.2008 12:36pm