Ultimately, Texas was granted argument time in Parker v. District of Columbia, which was the companion case to Heller. So I presented oral argument to the D.C. Circuit in Parker, defending the individual right to keep and bear arms.
Before the D.C. Circuit, Heller prevailed. And then the case went up to the Supreme Court. The Court took the case, and once again, Texas took the lead for the states defending the Second Amendment. This time, we got thirty-one states to join us as amici, more than double the number of states who had joined at the D.C. Circuit level.
Our brief made many of the same historical and constitutional arguments we had made to the D.C. Circuit. But we made an additional argument that proved consequential (and controversial). In footnote six of the brief, we argued that, although it was not legally necessary for Heller’s position to prevail, the states acknowledged that the Second Amendment was not merely a right that bound the federal government. Rather, we conceded that the Second Amendment also bound the state governments because it was “incorporated” against the states through the Fourteenth Amendment.
As a general matter, the text of the Bill of Rights applies only against the federal government. So, for example, in the First Amendment our basic protections of religious liberty, free speech, and a free press are explicitly directed only against the federal government. In fact, it begins with the very words, “Congress shall make no law.” By its own terms, the First Amendment, as with the rest of the Bill of Rights, applies just against the federal government—and not against the states.
And for the first century of our country’s history, the Bill of Rights was understood as only restricting the federal government, and not the states. But all of that gradually changed after the Civil War.
In the decades since, the Supreme Court has applied virtually all of the provisions of the Bill of Rights against state and local governments as well through a process that’s known as “incorporation.” So today, it’s clear that a state government can’t violate the First Amendment any more than the federal government can.
Heller was a curious case in that it arose in the District of Columbia, which is under the direct authority of the federal government. So the Court wouldn’t have to address incorporation to resolve the case. That presented an interesting dynamic for our amicus brief: it could, in effect, be a freebie for state attorneys general because they could claim they supported an individual right to keep and bear arms, while nonetheless remaining silent on whether their own state governments would have to respect that right.
I didn’t want to take half-measures or facilitate political cover for attorneys general unwilling to meaningfully protect the Second Amendment, so footnote six of our brief stated:
Although the Court need not reach the issue of incorporation in this case, amici States submit that the right to keep and bear arms is fundamental and so is properly subject to incorporation.… In the judgment of amici States, the right to keep and bear arms is “so rooted in the traditions and conscience of our people as to be ranked as fundamental.”
This had particular importance because it was what is known as a statement against interest; it constituted attorneys general explicitly acknowledging an important limitation on their own power. And, should any of those AGs subsequently try to argue in another court case that the Second Amendment should not be incorporated against the states, their explicit concession to the contrary would certainly be used against them.
That prompted an angry phone call from another state SG. He wanted to join our brief, but he argued—correctly—that footnote six was gratuitous. It was unnecessary to resolve the case, and he demanded that we delete the footnote.
I conceded the footnote was unnecessary but explained that we thought it was important (for the very reason he was dismayed at the content of the concession). His boss was an elected Democrat, and so I told him that he was welcome to take the politically courageous (but perhaps foolish) step of telling his electorate he didn’t support the Second Amendment. Fuming, the SG told me his state would join the brief.
Before Supreme Court oral argument, we received good news when we heard that the Bush administration’s Department of Justice was going to support us. That news turned out to be less than fully good, however, when we saw the actual brief that the United States filed. Although the Bush Department of Justice agreed with the legal proposition that the Second Amendment protected an individual right, it also argued for what in constitutional law is called an “intermediate scrutiny” standard of review. The way they defined that test was so lenient and deferential to the government that, as a practical matter, it would mean virtually any government restrictions on firearms would be permissible even if the Second Amendment were still technically deemed to protect an individual right. Indeed, they couldn’t even conclude that D.C.’s total prohibition would violate their lax standard; instead, they urged the Court to vacate the D.C. Circuit decision and remand the case for the court to reconsider it.
The brief was signed by then-U.S. Solicitor General Paul Clement, a friend and a very talented lawyer who had previously clerked for Judge Laurence Silberman on the D.C. Circuit and then for Justice Antonin Scalia on the Supreme Court. Readers will remember Paul from the previous chapter, from the oral argument in Van Orden v. Perry.
It so happened that Judge Silberman had authored the D.C. Circuit opinion in Heller—a jurisprudential tour de force that carefully outlined the textual, structural, and historical reasons that the Second Amendment protections were both real and meaningful. But now, his former clerk, Paul Clement, had signed a brief advocating a standard of review that would have gutted Judge Silberman’s opinion. From multiple accounts in Washington, Silberman was furious. I don’t think the brief necessarily reflected Paul’s personal opinion, but it
