Nickles: New Gun Brief “Gold Standard”

This morning, Mayor Adrian M. Fenty held a press conference to announce the filing of the District's final brief [PDF] in the Supreme Court gun case, D.C. v. Heller. Oral arguments are scheduled for March 18. Interim Attoney General Peter Nickles declared the brief, written by the city in conjunction with lawyers from three private firms working pro bono, to be the "gold standard" in its quality and thoroughness. "I'm feeling very good about the current situation," he said.

What's new in this thing? Nothing major, Nickles said, though he did say that he and his colleagues were "quite surprised" by the brief filed by federal Solicitor General Paul D. Clement that argued that some gun regulation was appropriate even under an individual-rights reading of the Second Amendment. Nickles said the revised brief pursues that line of argument more thoroughly.

So did Fenty, for that matter, in his opening statement, where he compared the District's handgun ban to a familiar con-law conceit: Just as the first amendment doesn't protect your right to shout "Fire!" in a crowded theater, so is the second amendment subject to reasonable restraint, he argued.

However, Walter Dellinger (pictured), the big-time Supreme Court lawyer who will argue the case before the court, emphasized in his remarks the primary argument that the District's been pursuing all along—that the Second Amendment does not preserve an individual right to bear arms, but rather was meant by the founders to apply to state militias narrowly defined. "To the extent that states choose not to have a militia," Dellinger said, "to that extent states don't have Second Amendment rights."

LL asked Dellinger the obvious question: With four votes likely to be predisposed against any sort of state-militia argument, how confident are you that there's five votes on the court that will buy it? Dellinger gave a somewhat contradictory response: "I never speculate about individual justices," he said, adding, "I don't put any member [of the court] off the table." The District's argument, he said, would be rooted in "first principles" rather than any tactical considerations to capture individual votes. At the same time, Dellinger said the ultimate goal is to preserve the District handgun ban, not to win any sweeping constitutional victories. "We are looking for the argument on the basis of which the law can be sustained by the Supreme Court," he said.

Nickles was asked if there was a "Plan B" if the court affirms the appeals court's ruling. Said Nickles, "If the case is affirmed, then the city council and the mayor will have to sit down and determine what kind of regulations would be appropriate...already starting to think about that."