SCOTUS blog recently published an interesting post by Lyle Denniston discussing an amicus brief filed with the Supreme Court in the District of Columbia gun case by 55 senators and 250 members of the House of Representatives (you can find a copy of the brief here). The brief, which urges the Supreme Court to find that the Second Amendment protects and indivudual, as oppsoed to collective or communitarian, right to bear arms and to affirm the DC Circuit’s decision striking down DC’s ordinance banning the ownership and possession of handguns in the District, also had one additiona, notable signatory: Vice President Dick Cheney. Cheney joined the brief in his capacity as President of the Senate, a role explictly delegated to the vice president by the Constitution.
Cheney’s decision to sign the brief is notable because the argument set forth in the brief is at least partially at odds with the position that the Bush Administration, through the Solicitor General’s office, has taken. The Administration, while urging the Court to adopt an individual rights approach, nonetheless asks the Court to remand the case to the lower court for further proceedings to determine whether the District may nonetheless adopt the ban consistent with the Constitution’s protection of an individual right to bear arms. Needless to say, the decision by a sitting Vice President to sign onto a brief taking a legal position that is at odds, even partially, with the position taken by the administration of which he is a member, is highly unusual, if not unprecedented. Yet another interesting flourish to an already high profile case.