It’s a pleasure to be back at Concurring Opinions. I much enjoyed guest blogging here last summer, and the management has been kind enough to invite me back for a few months to cover firearms law issues during the pendency of District of Columbia v. Heller, the landmark Supreme Court case on the Second Amendment right to arms. I’ll cover the briefing, the oral argument on March 18, and the decision, which will probably be issued at the end of the term in June. I also hope to discuss some other firearms law topics such as ConocoPhillips v. Henry, a legal challenge to an Oklahoma law giving employees the right to store their self-defense guns in their locked cars while at work.
On to Heller. I commented on the certiorari briefing during my stint last fall with the fine folks at PrawfsBlawg. This post discusses the merits brief filed by D.C. as petitioner. We’re waiting for Mr. Heller’s merits brief next week, and then his crowd of amici in the week to follow.
The general character of the District’s merits brief is what you’d expect of a lead brief in a Supreme Court case of this magnitude — polished, efficiently written, and in many respects reflective of skilled and thoughtful advocacy. What I want to do here is consider the litigating stance of the District in light of the “pressure points” in Heller — the key moves that each side is asking the Supreme Court to make.
Here’s the question presented in Heller, which the Justices themselves drafted as part of the certiorari grant [bracketed text mine]:
Whether the following provisions — D.C. Code §§ 7.2502.02(a)(4) [banning handguns], 22-4504(a) [banning gun carrying, including at home], and 7.2507.02 [requiring all guns to be both unloaded and locked or disassembled] — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?
The question suggests that the Court has its eye on the right issues. It breaks down naturally into three interpretive steps: