[Volokh] David Kopel: State-level Battle of the Attorneys General in DC v. Heller

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Posted by David Kopel:
State-level Battle of the Attorneys General in DC v. Heller
http://volokh.com/archives/archive_2008_02_10-2008_02_16.shtml#1202800511


   Thirty-one state Attorneys General [1]filed an amicus brief in support
   of Heller. Part I.A. is a solid textual and historical argument for
   the Second Amendment as a meaningful individual right. Well-written,
   but I'm not sure it adds much to the treatment of these issues in
   Respondent's brief. Part I.B. adds some material on post-Miller cases
   in which the Supreme Court acknowledged the Second Amendment as
   similar to other Bill of Rights provisions (e.g., Konigsberg,
   Eisentrager).
   Part II supports the D.C. Circuit's having found the handgun and
   self-defense bans to be facially unconstitutional, and takes on the
   Solicitor General's argument for intermediate scrutiny in Second
   Amendment cases. The Attorneys Genera argue for strict scrutiny. In
   Part III, the Attorneys General reassure the Court that none of the
   laws which the Solicitor General worried about (felon-in-possession
   ban, machine gun ban, undectable firarms ban) would be endangered by
   strict scrutiny.
   On page 23, note 6, the Attorneys General likewise signal that they
   are not worried that the Second Amendment would endanger appropriate
   gun controls in the states, for the Attorneys General announce that
   the Second Amendment should be incorporated.
   The brief serves as counterpoint to a pro-Petitioner [2]amicus brief
   filed by 18 big-city District Attorneys, which warned that affirming
   the D.C. Circuit's decision would unleash a dangerous set of
   challenges to gun controls.
   [3]Five state Attorneys General had filed a brief in support of D.C.
   That brief also argues against making the Second Amendment enforceable
   against the states (based on the argument that the Second Amendment is
   a federalism protection).
   At Concurring Opinions, [4]Michael O'Shea has created maps showing the
   31 pro-Heller states, the 14 neutrals, and the 5 pro-DC states.
   It may be that the incorporation issue explains why some state
   Attorneys General stayed neutral, rather than join the 31. It is also
   interesting that Illinois, which joined New York's amicus brief in
   favor of D.C.'s cert. petition, is neutral at the merits stage.

References

   1. http://www.gurapossessky.com/news/parker/documents/07-290bsacTexas.pdf
   2. http://www.gurapossessky.com/news/parker/documents/07-290tsaCertainDistrict.pdf
   3. http://www.gurapossessky.com/news/parker/documents/07-290tsaCertainDistrict.pdf
   4. http://www.concurringopinions.com/archives/2008/02/maps_of_the_sta_1.html