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DC v Heller - Rule or Remand? PDF Print E-mail
Written by Gene Helms   
Monday, 17 March 2008

U.S. Solicitor General Paul Clement has filed a brief for the imminent Supreme Court case District of Columbia v. Heller that will allow the highest court in the land to rule whether or not the Second Amendment to the U.S. Constitution is an individual right like every other that is enumerated in the Bill of Rights. Clement asked that the case be remanded to the DC Circuit Court to see if the law can withstand “intermediate scrutiny” under the Second Amendment. His reasoning is that,
Although the Court of Appeals correctly held that the Second Amendment protects an individual right, it did not apply the correct standard for evaluating respondent’s Second Amendment claim.

The Court of Appeals appears to be using a categorical approach where Second Amendment could be construed to categorically preclude any ban on a category of “Arms” that can be traced back to the founding era of our nation. If the Supreme Court of the United States were to analyze this case in the same way, it could cast doubt on the constitutionality of existing federal legislation banning the possession of certain types of firearms, including machine guns.

Another brief signed by the President of the United States Senate Dick Cheney, 55 members of The United States Senate, and 250 Members of the House of Representatives states,
The lower court’s categorical approach in holding a prohibition on handguns to be unconstitutional per se was correct.

Where Congress has sought to restrict certain firearms, some of which may have characteristics which overlap with handguns, it has defined them in term of specific categories. A holding by this Court that the District’s pistol ban violates the Second Amendment would not apply to such firearms which are restricted under other categories.

This case involves nothing more than the right of law-abiding persons to keep common handguns and usable firearms for lawful self-defense in the home. Accordingly, no purpose would be served by remanding this case for further fact finding or other proceedings.

I believe that the decision will be that DC’s handgun ban is unconstitutional. I also agree with the brief signed by Vice-President Cheney in that there is no reason to send this case back to the lower court.

Oral arguments are to begin on March 18, 2008. We will soon know the court’s decision on this matter.