Friday, February 08, 2008

Heller's Friends in Congress, And One More

The news is in the details. The newest amici brief is signed by 250 Members of Congress, 55 Senators and The President of the Senate, Vice President Dick Cheney.

More later, but wow.

UPDATE: Wow, again.

The single biggest headline out of the Congressional brief is that the 300 signers and the Vice President have taken a position directly contradictory to that of the Solicitor General, the official representative of the Bush administration.

The SG has called for SCOTUS to send the case back to the lower courts in order to define what reasonable regulation might be. The problem is that doing so either implies or makes the case that a ban on handguns might be within a definition of reasonable.

The congressional brief takes deliberate aim at that position with the observation that a ban of handguns is unconstitutional on the face of it and neither needs nor deserves further consideration.

While Congress has fairly routinely taken legal positions that differ from the various administrations in power, I would be shocked if there has been any other case in recent memory where a sitting Vice President and member of the same political party as the President has taken a position at SCOTUS different from that of the Solicitor General.

Again, the historic texture is fascinating though the authorship is a little less lyrical than some of the other briefs.

Being politicians, they begin by telling the Justices who and how important they are.

As Federal officials, we have a fundamental interest in protecting the constitutional rights of our constituents and the American people in general.
There's the been there, done that language that probably helps put an institutional framework around it.
On several occasions, in different epochs of American history, the Congress enacted statutory texts which explicitly declared its understanding of the Second Amendment as guaranteeing fundamental, individual rights.

The Amici Curiae wish to bring their unique perspective to this Court’s attention to explain to the Court the historical meaning of the Second Amendment as understood by the Congress, and why the District’s firearms prohibitions at issue infringe on the rights of the law-abiding citizens of the District of Columbia as guaranteed by the Second Amendment.
This might help with a few of the Justices and it is fascinating texture to add to the case.
Following the abolition of slavery, Congress sought to end the incidents of slavery, including prohibitions on possession of firearms by African Americans. In 1866, over two-thirds of Congress passed the Freedmen’s Bureau Act, which declared 3 protection for the “full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and . . . estate . . ., including the constitutional right to bear arms . . . .”
This is a reminder that Congresspersons really don't like to have their chains yanked by lesser officials.
In 1906, Congress empowered the District to pass “such usual and reasonable police regulations” deemed necessary to regulate firearms, which today remains the District’s only delegation to regulate firearms. A ban on handguns is both unusual and unreasonable.

Again, we're important. Of course, they are.
This Court should give due deference to the repeated findings over different historical epochs by Congress, a co-equal branch of government, that the Amendment guarantees the personal right to possess firearms.
The hammer, useful against the District but I bet a lot of Democrats signed this brief in order to hit President Bush with it as well. No need for remand. Headline: Democrats protect Second Amendment against Bush attack!
The District’s prohibitions on mere possession by law-abiding persons of handguns in the home and having usable firearms there are unreasonable per se. No purpose would be served by remanding this case for further fact finding or other proceedings.
I like this, with its reference to the first clause as a political principle. What would we do without politicians?
The Second Amendment provides: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear 6 arms, shall not be infringed.” This declares a political principle and then guarantees a substantive right. The term “the people” is in juxtaposition to the government, federal or State. Only individuals have “rights,” while the United States and the States have “powers.”
Strong language to follow…
When analyzed closely, the “collective rights” reading of the Second Amendment is simply implausible.
Still, the headline is Vice President Cheney's signature. Wow.

RELATED LINKS: For a look at reviews of other terrific briefs filed at SCOTUS in support of Heller, see:
Heller’s Friends: Claremont Institute and the Scholars
The Heller Posse: A Roundup of Briefs: The NRA
Heller: The Good Guys Shoot Back, With Effect
On Heller: Shot in the Back by the Bush DOJ

For even more on the case and the subject, click here.

Worse comes to worst, he could take 3-4 of them pigeon hunting in Wyoming.

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