The Bush Administration urged the Supreme Court Friday night to rule that the Second Amendment protects an individual right to have a gun for private use, but argued that the D.C. Circuit Court went too far in applying that personal right view. The appeals court, the new brief said, seems to have adopted a “more categorical approach” to gun control laws than is proper.

In a move designed at least in part to protect federal gun laws from being struck down, the new brief urged the Justices to uphold an individual right to a gun and adopt a flexible standard for judging specific laws, and then return the pending test case from the District of Columbia back to the Circuit Court for another look. Tellingly, the government’s friend-of-court brief was not labeled as a supporting brief for either side in the case of District of Columbia v. Heller (07-290).

The government brief can be downloaded here.

Filed by U.S. Solicitor General Paul D. Clement, the brief took no direct position on the constitutionality of the 1976 D.C. law that is at issue: a flat ban on private possession of handguns. The Circuit Court, in a ruling last March, struck down the law, finding that it violates the Second Amendment on the understanding that the Amendment protects an individual, not a collective, right. Clement did comment that the D.C. pistol ban “may well fail” if tested under the approach he recommended, but he did not argue that it would necessarily fail.

“The Court,” Clement summed up at the close of the brief, “should affirm that the Second Amendment, no less than other provisions of the Bill of Rights, secures an individual right, and should clarify that the right is subject to the more flexible standard of review described above. If the Court takes those foundational steps, the better course would be to remand [to the Circuit Court}.”

The “more flexible standard of review” the brief proposed is, according to the government, a form of “heightened scrutiny.” Here is how it is spelled out:

“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.”

The brief added: “Under that intermediate level of review, the ‘rigorousness’ of the inquiry depends on the degree of the burden on protected conduct, and important regulatory intgerests are typically sufficient to justify reasonable restrictions.”

The D.C. handgun ban, the brief contended, is the kind of gun control that would call for the kind of “close scrutiny” being proposed. That law, it said, bans “a commonly-used and commonly-possessed firearm in a way that has no grounding in the Framing-era practice.”

The Circuit Court, Clement commented, “appears to have adopted a more categorical approach” that he was advocating. The Circuit Court decision, he said, “could be read to hold that the Second Amendment categorically prohibits 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.”

The brief continued: “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. Under an appropriate standard of review, existing federal regulations, such as the prohibition on machineguns, readily pass constitutional muster.” Some machineguns that are banned by federal law might meet the D.C. law’s definition of a pistol, the brief said.

It was not at all surprising that the Administration brief supported the individual rights view of the Amendment’s scope. Although the Justice Department had taken no part in the lower courts as they weighed the D.C. gun ban, then-Attorney General John Ashcroft in 2001 publicly adopted the individual rights view.

And neither was it a surprise that the position the Department took was motivated at least in considerable part by the felt need to assure continued enforcement of some federal gun control laws. Even though the government for more than six years has held the individual rights view of the Amendment, it has yet to take a position in a court case that a particular gun law was invalid under that view.

In arguing in the end that the case should be returned to the Circuit Court, Clement’s brief said that there are factual and legal issues that the lower court did not consider in its March ruling.

It suggested that one issue that deserves further airing is the practical impact of another part of the D.C. gun law that requires that any other kind of firearm kept in the home be kept unloaded or with a trigger lock in place. The local man who challenged the gun law has argued that the trigger lock provision may bar a resident of the city from even having a working shotgun or rifle at home.

Whether the law puts a “functional firearm” out of local residents’ reach, the government brief said, may depend on whether the local law can be read to allow possession at home of a working long gun.

If the law can be read that way, there would then arise, Clement suggested, the factual issue of whether the guns that remained available are not as well suited to self-defense in the home as a handgun would be.

Those questions, the brief said, are better left, in the first instance, to the lower courts. In a footnote at the end of the brief, Clement suggested that, if the Circuit Court ultimately held that some or all of the D.C. gun law’s restrictions are unconstitutional, “a remand will also give that court the opportunity to state more precisely the scope of its remedial holding” — that is, just what parts of the law are being invalidated.

Friday was the due day for friend-of-court briefs by groups supporting the D.C. government’s appeal in the case, or briefs by anyone joining in the case without taking sides with either the local government or with the gun law challengers. As of Friday night, 19 briefs had been filed to support the District of Columbia appeal.

Briefs by the gun law’s challengers, and friend-of-court briefs supporting that side, are due in about a month. The case is expected to be heard by the Court in March.

Posted in District of Columbia v. Heller, Uncategorized