Cheney disagrees in D.C. gun case
Vice President Richard Cheney, parting company with the official Bush Administration position on the test case before the Supreme Court on the Second Amendment, signed onto a brief Friday urging the Justices to strike down the District of Columbia handgun ban without ordering any further proceedings.
The brief — representing the views of a majority of the members of the Senate and of the House — explicitly endorsed the “categorical approach” that the D.C. Circuit Court used in declaring the pistol ban invalid under the Second Amendment. That decision, the brief argued, should simply be affirmed, thus nullifying outright the local law. The brief can be downloaded here.
In contrast, the Justice Department — speaking for the Administration — told the Court on Jan. 11 that the Circuit Court had used too strict a constitutional standard, and should be told to reconsider its decision. The government filing took no direct position on the validity of the D.C. law. The Circuit Court should reconsider that question, the Department contended, using a “more flexible standard of review.” The Department did urge the Court, though, to rule now that the Second Amendment does protect an individual right to have a gun for private use. The filing was not labeled as a supporting brief for either side in the case of District of Columbia v. Heller (07-290), now scheduled for argument March 18.
The Vice President signed the brief — along with 55 senators and 250 representatives — in his role as the Senate’s presiding officer: that is, as President of the Senate. The Vice President, though, obviously has a dual role as the No. 2 leader of the Executive Branch — the branch usually represented in Court by the Justice Department — as well as presiding officer of one part of the Legislative Branch. It is rare, if not unprecedented, for the Vice President to take a position directly contrary to the stance taken by the Justice Department.
The congressional brief represents the views of 55 senators — 46 Republicans, nine Democrats — and 250 representatives — 182 Republicans, 68 Democrats, along with the Vice President.
Texas GOP Sen. Kay Bailey Hutchinson, instrumental in the assembly of signers of the brief, said in a statement that “the reason the amicus brief, signed by a majority of the House and Senate, including Vice President Dick Cheney, is significant is because the legislative history should be part of the record in the case. The debate on the Bill of Rights and subsequent Congressional action makes clear that the Founders and elected Representatives since the adoption of the Bill of Rights have considered the Second Amendment a protection of individual rights.”
News accounts earlier Friday about the brief mentioned the wide array of support for the brief in the Senate and House, but did not mention the Vice President’s decision to add his support. That became clear when the actual brief was filed Friday.
I note how everyone seems to fear SCOTUS declaring 922 (o) the machine gun ban unConstitutional. Yet, they, as do I, want the DC gun ban gone. I don’t see how SCOTUS can rule the ban in DC unConstitutional and not apply the same standard to 922 (o). Both bans are very similar in wording, scope and function. Both bans have “grandfathered” firearms that fall outside of the effect of the ban and both are a simple denial of registration application acceptance.
Even if SCOTUS doesn’t outright strike down 922 (o) as they should, it opens the door for a very successful challenge to the law if my understanding of the laws is correct. My question then is this: If the decision handed down from SCOTUS applies to all of the US, how does this affect the standing of 922 (o)?
Also, if SCOTUS strikes down DC’s registration requirements, does this mean that the 1934 NFA is possibly under threat as well?
Mike
Comment by Michael Saranos — February 8, 2008 @ 11:37 pm
My guess is the SC will rule in a way that maintains the status quo or restricts gun rights further. I fear the SC is less concerned with the Constitution than with disrupting federal power. I hope I’m wrong, but the court could always pull another Plessy v. Ferguson or a Dred Scott v. Sandford.
Comment by Mike Wilson — February 9, 2008 @ 12:59 am
“Congress shall have the power … To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States….”
As a matter of policy, Congress has delegated legislative authority of local matters to the locally elected city council, but surely that delegation should not extend to passing unconstitutional laws.
If a majority of members of both houses think the gun ban is unconstitutional, why not just pass a statute overriding it? The notion that deciding constitutional questions is exclusively for the courts is wrong. Congress can and should consider constitutionality in the exercise of its own powers.
Comment by Kent Scheidegger — February 9, 2008 @ 9:07 am
The congressional brief is further proof that Congress has never approved the DC handgun ban. The Constitution empowers Congress to “exercise exclusive Legislation in all Cases whatsoever, over such District.” Obviously, neither Congress nor local DC authorities can completely erase the word “exclusive” from this clause of the Constitution. This handgun ban is the kind of momentous legislation for which the Constitution surely requires explicit congressional approval, regardless of the Second Amendment issue, and regardless of any general delegation of power from Congress to local officials. Judge Michael McConnell once wrote in another context that Congress never “required that the schools of the District of Columbia be segregated,” and McConnell properly concluded that the segregation law was therefore invalid.
Comment by Andrew Hyman — February 9, 2008 @ 2:35 pm
If the DoJ’s filing “was not labeled as a supporting brief for either side in the case,” how can Vice President Cheney be taking a “position directly contrary to the stance” of the DoJ by supporting a side?
Different? Yes. “Directly Contrary” - I think that stretches it. Of course, aside from the subtle mis-characterization, when has the Vice President been mild in his viewpoint? He certainly has been the most independent VP in recent history.
Comment by BT Lowery — February 9, 2008 @ 3:13 pm
Incidentally, regarding my previous comment, I support increased power for DC, but it should come about lawfully rather than by usurpation. If SCOTUS would strike down the gun ban without reaching the Second Amendment issue, then that would not only be the proper thing to do, but it would also be a great impetus to giving DC more power legitimately. For example, it is disgraceful that a constitutional amendment such as the following has not yet been adopted:
“A citizen of the District constituting the seat of Government of the United States shall be entitled to full representation in Congress, as if the citizen’s residence were part of the State from which it was ceded. This article shall take effect as to such a State upon its consent, and Congress shall have power to enforce this article by appropriate legislation.”
Comment by Andrew Hyman — February 9, 2008 @ 3:20 pm
Andrew, your amendment would solve the representation problem, but I would go the whole hog and cede it back to Maryland entirely. The reasons for having a separate federal district in 1787 no longer apply, and the Necessary and Proper Clause is now understood to be more than sufficient to enable the federal government to protect its operations from local interference. The portion south of the Potomac was ceded back to Virginia, and there is no reason the northern part can’t be ceded back as well. It wouldn’t require a constitutional amendment.
Comment by Kent Scheidegger — February 9, 2008 @ 4:03 pm
I think they still apply. Giving Maryland sovereignty over the whole district, including the White House and the Capitol, would give too much power to Maryland. Congress can do so without a constitutional amendment, but it would be a mistake. And if Congress cedes 99% back to MAryland, then the remaining 1% could potentially have three votes in the electoral college, which would also be a mistake.
Comment by Andrew Hyman — February 9, 2008 @ 4:38 pm
After my initial two posts above, I read some more about this provision of the Constitution (i.e. the provision granting to Congress the power of “exclusive legislation” over the nation’s capital). So, I feel obliged to mention that SCOTUS held in DC v. Thompson, 346 U.S. 100 (1953), that “it is clear from the history of the provision that the word ‘exclusive’ was employed to eliminate any possibility that the legislative power of Congress over the District was to be concurrent with that of the CEDING states” (emphasis added). But this seems like an overly narrow interpretation of the word “exclusive,” and so I disagree with that statement by the Court in DC v. Thompson.
In Federalist 32, Alexander Hamilton said very clearly that this provision is one “where the Constitution in express terms granted an exclusive authority to the Union,” and so this provision barred a concurrent power with EACH AND EVERY ONE of the states, rather than just the with the CEDING states. Therefore, the word “exclusive” was meant to be much more comprehensive than SCOTUS has held, and I don’t see any reason why it should be completely inapplicable to the municipal legislature in the nation’s capital.
Yes, home rule is constitutional; in Federalist 43, Madison did anticipate that “a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed” for the nation’s capital. Thus, I would not take the extreme position taken by St. George Tucker in 1803: “If the maxim be sound, that a delegated authority cannot be transferred to another to exercise, the project here spoken of [i.e. home rule] will probably never take effect.” But still, it doesn’t seem right to limit the word “exclusive” in the Constitution so as to allow a complete delegation of legislative authority even over the most momentous subjects affecting longstanding individual rights.
Comment by Andrew Hyman — February 9, 2008 @ 11:00 pm
FYI, today I wrote a blog post about this, here.
Comment by Andrew Hyman — February 10, 2008 @ 2:00 pm
Cession doesn’t really work because Maryland does not want the duty to handle police, fire, garbage, street repair, etc. for a gigantic area which is exempt from taxation because it belongs to the US government. Already there are complaints around the country about the impact of government property and facilities on the tax base which are not made up by federal impact payments. There have been proposals to cede all but a federal kernel of DC, but defining that kernel is difficult in practice. What is so wrong about allowing DC the same number of senators and representatives and electors to which it would be entitled if it were a state? The greatest political inequalities in the US are due to the overrepresentation of states with low population. And this overrepresentation is perpetuated by an amendment process that involves an even more egregiously unequal.
Comment by Roger Friedman — February 10, 2008 @ 6:13 pm
The core issue here isn’t cession or DCs status as a Federal entity or whatever, it’s the 2nd Amendment and how much or little the Government may infringe on that right.
No matter how SCOTUS rules, the basis for the ruling applies nationwide. This is what is scaring many politicians who talk out of the sides of their mouths pandering to the gun owners for votes yet don’t want to lose the power to ban guns at their whim.
If SCOTUS doesn’t rule broadly with direct effect on things like 922 (o), you can bet that before the echo of the gavel fades away, there will be challenges based on Heller against every gun ban in the nation. If SCOTUS wants to deal with a ton of these cases comeing to them, they will only declare the DC ban unConstitutional. If they want to save the tax payers a ton of money and everyone a lot of grief, they will rule with broad effect cutting down a lot of stuff with one sweep.
Either way, a lot of the gun laws are going away and real soon. Our nation will be far better off for it too.
Mike
Comment by Michael Saranos — February 10, 2008 @ 8:16 pm
Has any previous Vice President taken the position that he is an officer in the Legislative Branch like this (and in Cheney’s previous position regarding White House e-mails)? Is there any constitutional merit to it?
Comment by Peter Goldberger — February 10, 2008 @ 9:27 pm
Peter:
Yes. No.
Comment by Daniel Thomas — February 11, 2008 @ 8:29 pm
(Responding to Peter Goldberger 9:27 pm) Cheney has consistently advanced the view that the VP has a unique Constitutional status, part Legislative, part Executive. His office has argued that as a part of the Legislative branch, the VP’s office is not part of the Executive subject to Executive Orders concerning secrecy and security. Surely Mr. Cheney is sincerely devoted to the 2d Amendment, but he is also consciously protecting the unique Constitutional position of the VP. He is upholding his oath of office.
Comment by Joe Richer — February 12, 2008 @ 7:53 am
To Saranos #12: Already you can see lawyers perserving points related to carrying a gun enhancements or crimes with gun possession elements — those that do not require using the gun or a felony conviction — on 2nd amendment grounds.
Comment by Roger Friedman — February 12, 2008 @ 8:44 am