A related brief was filed by the District Attorney of San Francisco, joined by 17 other District Attorneys (including 5 from New York, and 4 from California). The brief makes its own argument about stare decisis, and warns that affirming the D.C. Circuit’s recognition of an individual right would lead to vast challenges to federal and state laws against gun possession by convicted criminals, as well laws providing sentence enhancements for use of a firearm in a crime.
These arguments are addressed in pro-Heller amicus brief of the Maricopa County District Attorney, which is joined by 12 other District Attorneys (including Hamilton County, Ohio, and Carroll County, Maryland).
In Parts III and IV of the brief, Maricopa points to state cases from Arizona and federal cases from the Fifth Circuit, to show that application of a strong standard of review for the individual right to arms does not lead to the wholesale invalidation of gun control laws. Accordingly, the Maricopa brief argues for strict scrutiny as the proper standard of review. (My own
brief, filed on behalf of a law enforcement coalition including 29 California District Attorneys, also supports strict scrutiny, and has a short discussion of state right to arms cases upholding bans on gun possession by criminals.)
Parts I and II of the Maricopa brief present some standard textual and legal history arguments for the Second Amendment as an individual right. As in so many of the amicus briefs, it would have been better if the brief had omitted points which were already made in Respondent’s brief.
Perhaps the most important argument–which I wish would have been a major Part of somebody’s brief–is connecting the Second Amendment to the substantive due process line of cases. Justice Harlan’s definition of Fourteenth Amendment “liberty” in his Poe v. Ullman dissent included “the right to keep and bear arms.” This definition has been repeated many times in important cases in which the Court has protected unenumerated rights, including Griswold, Roe v. Wade (Stewart concurrence), Moore v. East Cleveland (right of extended family to live together), Casey v. Planned Parenthood (Kennedy-Souter-O’Connor opinion), and Lawrence v. Texas. The point is not that the right to arms is dependent on substantive due process; rather, the point is that the key modern cases for unenumerated “liberty” rights all acknowledge the right to arms.
The brief of Grass Roots South Carolina does a reasonable job of arguing for the right to have a handgun in one’s home as within the penumbral protection of constitutional “privacy”, but that brief too overlooks the force of Justice Harlan’s Poe language, which is clearly beloved by Justices Kennedy and Souter.
The other brief which address the “don’t disturb precedent” argument is the one from the Center for Individual Freedom. It argues that the Court’s 1939 Miller case was ambiguous, and thus set no anti-individual rights precedent. The brief discusses various circuit court of appeals decisions which have, in purported reliance on Miller, ruled against an individual right; the brief argues that these over-reading cases deserve little respect as precedent.
Part II argues that the “collective/states right” interpretation would, if actually endorsed by the Court, lead to drastic changes in current practices: states would have the right to sue the federal government over militia issues, to claim authority to disregard federal gun controls which interfere with the states’ militias (e.g., a Rocky Mountain state legislature enacts a law declaring all able-bodied adults to be part of its militia, and ordering those adults to arms themselves with, inter alia, machine guns and mortars), or to challenge federal deployment of National Guard units outside a state’s boundaries
Whether federal courts would rule in favor of a state on any given “militia rights” issue is, of course, uncertain. But a state’s rights Second Amendment would open the door for a wide variety of challenges. In contrast, an individual rights Second Amendment fits quite easily with over 200 years of state law experience of an individual right to arms, a right that exists in over 40 state constitutions.As pointed out in the brief of the American Legislative Exchange Council, there have been two dozen laws which have been declared to be unconstitutional violations of a state right to arms provision. And, quite obviously, there are thousands more which have not. Using already-developed analyitical techniques from the state cases (e.g., overbreadth, narrow tailoring), which are themselves based on federal First Amendment jurisprudence, would not be difficult for federal courts analyzing Second Amendment challenges to federal gun laws.
Rather notably, the ABA and San Francisco District Attorney briefs failed to point to a single case anywhere in the nation where a felon-in-possession law or a sentencing enhancement for actual use of a firearm in a violent crime was declared to violate a state constitutional right to arms.
If you’d like to read more blog analysis of the various briefs in DC v. Heller, check out Liebowitz’s Canticle.