By Robert Barnes
Washington Post Staff Writer
Friday, February 8, 2008
A majority of the Senate and more than half of the members of the House will file a brief today urging the Supreme Court to uphold a ruling that the District's handgun ban violates the Second Amendment.
Sen. Kay Bailey Hutchison (R-Tex.), who led the effort to file the friend-of-the-court brief, said her staff could not find another instance in which such a large portion of Congress had taken a position on an issue before the court.
"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," their brief contends.
"The District's prohibitions on mere possession by law-abiding persons of handguns in the home and having usable firearms there are unreasonable."
District of Columbia v. Heller, scheduled for argument March 18, offers the Supreme Court a chance to settle years of debate over whether the Second Amendment -- "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed" -- guarantees an individual right to possess firearms or a "collective" civic right related to military service.
Last spring, a panel of the U.S. Court of Appeals for the D.C. Circuit ruled 2 to 1 that the right is an individual one, and because handguns should be considered "arms," it is unconstitutional to ban them. The District has the nation's most-restrictive law.
The Bush administration, in a brief filed by U.S. Solicitor General Paul D. Clement, said such a categorical approach could endanger federal gun control measures, such as a ban on private possession of new machine guns. Clement proposed that the court recognize an individual right but send D.C.'s law back to lower courts to determine whether it is an unreasonable restriction.
Hutchison and Sen. Jon Tester (D-Mont.), who spoke at a Heritage Foundation event yesterday, said the court could find D.C.'s law unconstitutional without another trip through the courts and without endangering Congress's ability to pass other gun control legislation, such as banning assault weapons.
All Senate Republicans except three -- Virginia's maverick Sen. John W. Warner was one of the missing -- signed on to the brief. Nine Democratic senators -- Virginia's other maverick, Sen. James Webb was among them -- joined the effort. The total was 55 senators and 250 House members, 68 of whom were Democrats.
Webb campaigned in 2006 as a strong supporter of the Second Amendment. Warner said in a statement he stayed out of the case because of respect for home rule.
"While the District of Columbia is not a state, it operates under a framework of laws enacted by the Congress which gives its elected leaders the duty to advocate the positions and interest of its citizens before the federal judiciary," he said.
Virginia will file with a large number of other states on behalf of those challenging D.C.'s law. Maryland has joined a smaller group of states urging the court to reverse the lower court's opinion, and the state's two Democratic senators did not join Hutchison's brief.
The House voted to overturn the D.C. ban in 2004, but supporters failed to muster enough votes in the Senate.