As many VC readers may be aware already, the Solicitor General's office has filed a brief in D.C. v. Heller supporting an individual rights interpretation of the Second Amendment, but nonetheless calling for a remand in the case because the U.S. Court of Appeals for the D.C. Circuit applied too high a level of scrutiny in the case. Here's a taste of the brief's argument summary:
Although the court of appeals correctly held that the Second Amendment protects an individual right, it did not apply the correct standard for evaluating respondent's Second Amendment claim. Like other provisions of the Constitution that secure individual rights, the Second Amendment's protection of individual rights does not render all laws limiting gun ownership automatically invalid. To the contrary, the Second Amendment, properly construed, allows for reasonable regulation of firearms, must be interpreted in light of context and history, and is subject to important exceptions, such as the rule that convicted felons may be denied firearms because those persons have never been understood to be within the Amendment's protections. Nothing in the Second Amendment properly understood—and certainly no principle necessary to decide this case—calls for invalidation of the numerous federal laws regulating firearms.
When, as here, a law directly limits the private possession of "Arms" in a way that has no grounding in Framing-era practice, the Second Amendment requires that the law be subject to heightened scrutiny that considers (a) the practical impact of the challenged restrictions on the plaintiff 's ability to possess firearms for lawful purposes (which depends in turn on the nature and functional adequacy of available alternatives), and (b) the strength of the government's interest in enforcement of the relevant restriction. . . . Under that intermediate level of review, the "rigorousness" of the inquiry depends on the degree of the burden on protected conduct, and important regulatory interests are typically sufficient to justify reasonable restrictions.
The court of appeals, by contrast, appears to have adopted a more categorical approach. The court's decision could be read to hold that the Second Amendment categorically precludes any ban on a category of "Arms" that can be traced back to the Founding era. If adopted by this Court, such an analysis could cast doubt on the constitutionality of existing federal legislation prohibiting the possession of certain firearms, including machineguns. However, the text and history of the Second Amendment point to a more flexible standard of review. Just as the Second Congress expressed judgments about what "Arms" were appropriate for certain members of the militia, Congress today retains discretion in regulating "Arms," including those with military uses, in ways that further legitimate government interests. . . .
Given that the D.C. Code provisions at issue ban a commonly-used and commonly-possessed firearm in a way that has no grounding in Framing-era practice, those provisions warrant close scrutiny under the analysis described above and may well fail such scrutiny. However, when a lower court has analyzed a constitutional question under a standard different from the one adopted by this Court, the Court's customary practice is to remand to permit further consideration (and any appropriate fact finding or legal determinations) by the lower courts in the first instance. . . .