Regarding Two Amicus Briefs Filled with the Supreme Court in District of Columbia v. Heller

Floor Speech

Madam Speaker, I have reviewed two amicus briefs filed for consideration by the U.S. Supreme Court in connection with the case of District of Columbia v. Heller.

One brief has been signed by a majority of our colleagues in Congress. The other was filed on behalf of the Bush administration by the Solicitor General, Paul D. Clement. I want to explain why I have decided not to join in signing the first one.

First of all, I want to make clear I am aware of the importance of this case as regards the interpretation of the constitutional reach of the Second Amendment. As I said when the United States Court of Appeals for the District of Columbia decided Parker v. District of Columbia last year, I am convinced that the Constitution's Second Amendment protects the rights of individuals to keep and bear arms. I believe the Court of Appeals' decision striking down several gun laws passed by the D.C. City Council in that case was rightly decided and persuasively reasoned with regard to that fundamental point. As one who reveres the Bill of Rights and as a strong proponent of individual liberty in other contexts, like privacy and freedom of expression, I am very comfortable asserting that the Second Amendment ought to be recognized as protecting individual rights and not just a collective right to form militias.

The decision in Parker has been appealed to the Supreme Court in District of Columbia v. Heller, and I had an opportunity to read the amicus brief in support of upholding the decision of the Court of Appeals that Members of Congress were urged to sign. After carefully reviewing the brief, I found that I agreed with the arguments in 29 of its 31 pages, which support my view about the nature of the individual right guaranteed by the Second Amendment.

If the brief stopped there, I would support it without hesitation. However, it does not stop there. Page 30 of the amicus brief includes declarations that ``the District's handgun ban is unreasonable on its face'' and further, that ``The lower court's categorical approach in holding a prohibition on handguns to be unconstitutional per se was correct.''

Those assertions directly contradict statements in the Solicitor General's brief warning that while the Second Amendment does protect an individual right, the lower court's categorical approach to reviewing the D.C. laws in question ``could cast doubt on the constitutionality of existing federal legislation'' including restrictions on possession of firearms by convicted criminals, fugitives from justice, illegal immigrants, and people suffering from mental disorders.

Some may ask why the many Members of Congress who signed the first brief did not similarly hesitate to so flatly contradict the arguments of the Solicitor General. It is possible that my colleagues read the brief as only trying to make clear that the lower court rightly ruled about the nature of the right protected by the Second Amendment and rightly rejected the absurd argument advanced by the District of Columbia that if any individual right attached to the Second Amendment it should only apply to weapons (not handguns) known at the time the founders drafted the Constitution. But if that was the intention, the amicus brief is drafted in an ambiguous way that is regrettable.

I can speak only for myself, but as a non-lawyer who thinks Mr. Clement is highly qualified to serve as Solicitor General, I find it difficult to reject his concerns outright. And it is for this reason I cannot unequivocally endorse the amicus filed by my colleagues. It seems to me that the Supreme Court will need to take the Solicitor General's views into account when the Court considers the right standard for reviewing the decision of the lower court.

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