State-level Battle of the Attorneys General in DC v. Heller

Thirty-one state Attorneys General filed an amicus brief in support of Heller. Part I.A. is a solid textual and historical argument for the Second Amendment as a meaningful individual right. Well-written, but I'm not sure it adds much to the treatment of these issues in Respondent's brief. Part I.B. adds some material on post-Miller cases in which the Supreme Court acknowledged the Second Amendment as similar to other Bill of Rights provisions (e.g., Konigsberg, Eisentrager).

Part II supports the D.C. Circuit's having found the handgun and self-defense bans to be facially unconstitutional, and takes on the Solicitor General's argument for intermediate scrutiny in Second Amendment cases. The Attorneys Genera argue for strict scrutiny. In Part III, the Attorneys General reassure the Court that none of the laws which the Solicitor General worried about (felon-in-possession ban, machine gun ban, undetectable firearms ban) would be endangered by strict scrutiny.

On page 23, note 6, the Attorneys General likewise signal that they are not worried that the Second Amendment would endanger appropriate gun controls in the states, for the Attorneys General announce that the Second Amendment should be incorporated.

The brief serves as counterpoint to a pro-Petitioner amicus brief filed by 18 big-city District Attorneys, which warned that affirming the D.C. Circuit's decision would unleash a dangerous set of challenges to gun controls.

Five state Attorneys General had filed a brief in support of D.C. That brief also argues against making the Second Amendment enforceable against the states (based on the argument that the Second Amendment is a federalism protection).

At Concurring Opinions, Michael O'Shea has created maps showing the 31 pro-Heller states, the 14 neutrals, and the 5 pro-DC states.

It may be that the incorporation issue explains why some state Attorneys General stayed neutral, rather than join the 31. It is also interesting that Illinois, which joined New York's amicus brief in favor of D.C.'s cert. petition, is neutral at the merits stage.