By Robert Barnes
Washington Post Staff Writer
Sunday, March 9, 2008
With the Supreme Court examining for the first time in 70 years the right to bear arms guaranteed by the Second Amendment, a group of gay and transgender gun owners called the Pink Pistols could not miss out on a chance to tell the justices about its special needs.
With the opaque and oddly punctuated 27 words of 18th-century prose at last under the microscope, linguistic professors wanted the court to know that "the Second Amendment's absolute construction functions as a sentence modifier."
With the intentions of the Framers in question and modern social policy at stake, justices considering whether the District of Columbia's ban on handguns violates the Constitution have received an avalanche of advice from professors, doctors, social scientists, district attorneys, historians, religious groups, members of Congress and, of course, Vice President Cheney.
They may be nothing more than an ego boost for a client or provide the argument that wins the case, but such amicus curiae briefs have become an essential part of high-stakes Supreme Court cases.
In what has become something of an arms race, careful lawyers use friend-of-the-court briefs to counter each argument from the other side -- however tangential -- or to offer a carefully calibrated point of view that might appeal to a single, balance-shifting justice.
"As a lawyer for a party, your goal is to have as good and complete a presentation as you can for the justices, and cover the waterfront of perspectives that would be good for the court to hear," said Andrew Pincus, a frequent Supreme Court practitioner.
Alan Gura, who will represent District resident Dick Anthony Heller in arguing the challenge to D.C.'s law on March 18, coordinated the 47 amici who have filed on his client's behalf since the court took the case. "A well-crafted amicus brief is very important, especially when it presents a perspective that the parties simply can't provide," he said.
The Pink Pistols brief, for instance, said that Heller's argument that he has a right to own a gun for self-defense is especially relevant for lesbians, gays, bisexuals and transgendered people.
"Even in their homes, LGBT individuals are at risk of murder, aggravated assault and other forms of hate violence because of their sexual orientation," the brief states. "In fact, the home is the most common site of anti-gay violence."
Dennis J. Hutchinson, who teaches about the Supreme Court at the University of Chicago law school, agrees that friend-of-the-court briefs have become ubiquitous but is not convinced of their value.
"The amici are serving their own clients first, and the court second," he said. "The times they are really helpful is if both sides are amateurs at the court, and that doesn't happen very often."
But even infrequent signs of success are enough to convince Supreme Court practitioners that it is worth the effort. They speak reverentially of a 2003 brief filed by Washington lawyer Virginia A. Seitz on behalf of military officers defending affirmative action in a case involving the University of Michigan law school.
Then-Justice Sandra Day O'Connor referred to the brief both during oral arguments and in the 5 to 4 opinion she wrote in Grutter v. Bollinger upholding the law school's use of race in the admissions process.
Last term, Justice Anthony M. Kennedy acknowledged in his opinion upholding the federal Partial-Birth Abortion Ban Act a brief that said women who had abortions sometimes regretted them.
The most important amicus brief in almost every case is the one filed by the Department of Justice's solicitor general. Its brief represents the official position of the federal government, and justices often request the solicitor general's opinion even in cases where it has not intervened.
In the gun case, the justices have also given 15 minutes of argument time for Solicitor General Paul D. Clement to explain the government's view, which technically sides with neither party but which has outraged gun rights activists.
Clement agrees with Heller on the central question that the court has never completely answered when interpreting the ambiguous 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." Those words provide an individual right to possess a firearm, Clement said, not a "collective" civic right related to military service.
But beyond that, Clement parted ways with the U.S. Court of Appeals for the D.C. Circuit, which last spring struck down the District's ban on private handgun possession. He said the court was wrong in its reasoning that because handguns fall under the definition of "Arms," the District cannot ban them.
"Like other constitutional rights, that individual right is subject to reasonable restrictions," Clement wrote, and advised the case should be returned to lower courts to determine if the District's ban meets such a standard.
Gun rights groups were outraged by Clement's position, which they saw as a betrayal by an administration they had steadfastly supported. So, apparently, did Cheney, who in his role as president of the Senate signed on to a brief filed by a majority of Congress supporting Heller. That created the apparently unprecedented legal scenario of a vice president opposing the official position of his administration.
Clement's brief also provided another opportunity for the amici. While Gura could spend only a portion of his brief to the court countering the government, the Goldwater Institute filed a 31-page rebuttal, urging the Supreme Court to decide the case for itself.
Many of the other briefs fit into such a tit-for-tat pattern. A brief filed by five states, including Maryland, on behalf of the District is countered by a brief filed by 31 states, including Virginia, supporting Heller. One group of district attorneys is one side, a different group on another. The American Jewish Committee and Jews for the Preservation of Firearms Ownership take opposite views.
"You can't let the other side go unanswered," Hutchinson said.