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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.