Cheney Joins Congress In Opposing D.C. Gun Ban
Vice President Breaks With Administration

By Robert Barnes

Washington Post Staff Writer
Saturday, February 9, 2008; Page A01

Vice President Cheney signed on to a brief filed by a majority of Congress yesterday that urged the Supreme Court to uphold a ruling that the District of Columbia's handgun ban is unconstitutional, breaking with his own administration' s official position.

Cheney joined 55 senators and 250 House members in asking the court to find that the Second Amendment protects an individual's right to possess firearms and to uphold a lower court's ruling that the D.C. ban violates that right. That position is at odds with the one put forward by the administration, which angered gun rights advocates when it suggested that the justices return the case to lower courts for further review.

In order to make his dramatic break with the administration, Cheney invoked his rarely used status as part of Congress, joining the brief as "President of the United States Senate, Richard B. Cheney." It is a position he has used at times to make the point that he is sometimes part of the legislative branch and sometimes part of the executive.

"That is one of his titles," Cheney press secretary Megan Mitchell said when asked whether it was significant that he had joined the brief in that capacity rather than as vice president.

The position puts Cheney at odds with a brief filed by U.S. Solicitor General Paul D. Clement, who represents the government and the Bush administration before the Supreme Court. Clement said that the court should recognize the individual right but that the lower court's ruling was so broad it could endanger federal gun-control measures, such as a ban on possession of new machine guns.

Clement urged the court to send the D.C. law, the strictest in the nation, back to lower courts for further review.

The government's position, which technically supported neither the District nor those challenging the law, nonetheless infuriated supporters of gun rights. They saw it as an abandonment of their cause just as the court was ready to interpret the Second Amendment for the first time in 70 years.

The effort to draw up a brief for lawmakers was led by Sen. Kay Bailey Hutchison (R-Tex.). When she disclosed the names of her co-signers on Thursday, Cheney's was not among them. But his name was added when the legal brief was filed yesterday.

Lawyers said it may be unprecedented for a vice president to take a position in a case before the high court that is at odds with one the Justice Department puts forward as the administration' s official position.

"To my knowledge, I don't recollect it ever happening before," said Richard Lazarus, co-director of the Supreme Court Institute at Georgetown Law Center.

Bush spokesman Tony Fratto emphasized where the sides agreed rather than where they disagreed.

"Like the members of Congress who signed the amicus brief, the president strongly believes that the Constitution protects an individual right to keep and bear firearms," Fratto said.

"The president leaves procedural questions to the lawyers. What's most important is that this administration firmly supports the individual-rights interpretation of the Second Amendment."

Mitchell said Cheney signed on to the brief because "the vice president believes strongly in the Second Amendment." Reminded that it put him at odds with the administration' s official position, she repeated, "It's an issue he feels strongly about."

Neither Mitchell nor Fratto would say whether the president and the vice president talked about Cheney's decision.

"We're glad to have the vice president on board with the Second Amendment," said Alan Gura, one of the attorneys for the D.C. residents who challenged the law. He was sharply critical of Clement's brief when it was filed, saying it was "basically siding with the District of Columbia."

The District's argument takes the position adopted by a majority of the nation's appeals courts that the Second Amendment guarantees a right to bear arms only as a collective, civic right related to military service.

But even if the amendment provides an individual right, as the U.S. Court of Appeals for the District of Columbia Circuit held last spring, the city argues that it may ban handguns if it allows citizens to own other kinds of firearms, such as rifles and shotguns.

Clement's brief said that was dubious but also said the appeals court was wrong to rule that just because handguns are "arms" as defined by the Second Amendment, government cannot ban them.

"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 machine guns. "

The congressional brief filed by Hutchison and others said lower-court review is unnecessary because the District's ban "is unreasonable on its face," no matter how lenient the standard of review.

National Rifle Association Executive Vice President Wayne LaPierre called the congressional brief "a historical message to the court" that Congress believes the Second Amendment guarantees an individual right to possess firearms. A statement from the organization said it is "grateful and fortunate to have a friend of freedom in the vice president."

Staff writer Michael Abramowitz contributed to this report.