How many have been following the recent Supreme Court case "District of Columbia v Heller"? It has generated a lot of attention mostly because it is a Second Amendment issue, and anytime the Second Amendment is the subject of attention, it brings the extremists out of the woodwork--and that is both sides of the issue.
The Second Amendment has been an issue that the Supreme Court has shied away from, both in dealing with it sparingly, but also not "incorporating" it as a right applied to all governmental entities in the US--national, state, and local.
What interests me about this case has nothing to do with either of those two things above. What interests me is the number of amicus briefs that have been filed in this particular case. Amicus briefs, or "friend of the court" briefs, are legal briefs submitted to a court by individuals or organizations (political and otherwise) who are not a party to the case (so called "merit" briefs). In essence, these briefs attempt to influence the final decision of the court by demonstrating a larger interest to the case. Interest groups have employed an amicus strategy as an attempt to influence judicial decisions on policy or constitutional matters of central concern to the interest and its membership. Recent scholarship on this interest group strategy has demonstrated a causal relationship, where judges will cite these briefs when rendering their decisions. In the affirmative action case involving the University of Michigan several years ago, there were 107 separate briefs filed with the Supreme Court, with many finding their way into the various opinions of the Court.
And for this particular decision, there are over 60 separate amicus briefs on file for Court consideration sometime later in this term (oral arguments commence tomorrow). The case, for those who are unaware, involves a variety of DC ordinances that ban the possession of handguns or rifles unless you own a permit, which generally is considered an ordinance that allows only the military, police, and security guards this right--in particular, DC Code, section 7-2505.01(a) which prohibits anyone from possessing an unregistered firearm within the District; DC Code section 7-2502.02(a)(4) which went into effect in 1976, and bars the registration of any pistol by a private citizen; DC Code section 22-4505, which forbids carrying a pistol without a license; and finally DC Code section 7-2507.02, which requires all lawfully owned firearms to be kept unloaded and disassembled, and under lock and key at the persons residence--it may be kept intact if it is kept at a place of business. These laws in question have been on the books for 30 years, and was recently ruled invalid by the (conservative) DC circuit court of appeals.
As you pan the list of friends who filed either in support of DC or in support of the respondent, who sued to invalidate the ban (by far my favorite brief is from the "Jews for the Preservation of Firearms Ownership in Support of Respondent"), a couple of names should jump right out at you. But that is if you look very carefully because one of the names has been obscured by job title.
For the District of Columbia is the United States, represented of course by Solicitor General Paul D. Clement. The solicitor general is second in command at the US Department of Justice. It is the solicitor's job to argue cases involving the government before the Supreme Court (and any lower court, if he or she so chooses). The solicitor is often described as the "10th Justice of the Supreme Court," because if he or she asks the Supreme Court to hear a case, the Supreme Court will oblige.
The solicitor general more generally supports the overall conclusion of the DC circuit that the Second Amendment is guaranteed to individuals, but disagrees with their reasoning that the Amendment "categorically precludes any ban on a category of 'Arms' that can be traced back to the the Founding era. If adopted by this Court, such an analysis could cast doubt on the constitutionality of existing federal legislation prohibiting the possession of certain firearms, including machineguns." The solicitor general urges the Supreme Court to "remand" the case to the lower court so that it could flesh out the exceptions to the Second Amendment right.
Filing on behalf of the respondent are "55 Members of the United States Senate, the President of the United States Senate, and 250 Members of the United States House of Representatives." There is also a brief filed by "Members of Congress" supporting the DC ordinance, and from what I can tell it consists of all Democrats. The brief on behalf of "55 Members'" includes, of course, President of the Senate, Dick Cheney. The President of the Senate is also the vice president of the United States, who has signed on to a brief that runs counter to the brief filed by the Department of Justice.
It seems clear to me this strategy implicates the unitary executive. The unitary executive, at its core, supports a unified executive branch in message and action from top down. So the vice president breaking from the official line might lead some to cast doubt on just how firm a grip the unitarians have over the executive branch.
But looked at another way, one could argue that this move supports the hold of the unitarians--VP Cheney was told that this is the official position of the executive branch. If he wished to dissent, he could not do so from the Office of the Vice President. Instead, he would need to use his other official title--President of the Senate--to make his statement. Similar, of course, to the two elections where he had to stand against homosexuality as an abomination and a threat to tradition values as the VP candidate, but also to stand in support of it as a father of a lesbian.
This particular twist has received surprisingly little play in the press, and so far is a no show during the press gaggle between the press secretary and the press corps. But then again, there are more important things afoot--Elliot Spitzer and Barack Obama's minister come immediately to mind.
