[Congressional Record Volume 154, Number 31 (Tuesday, February 26, 2008)]
[Extensions of Remarks]
[Page E244]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




REGARDING TWO AMICUS BRIEFS FILED WITH THE SUPREME COURT IN DISTRICT OF 
                           COLUMBIA V. HELLER

                                 ______
                                 

                            HON. MARK UDALL

                              of colorado

                    in the house of representatives

                       Tuesday, February 26, 2008

  Mr. UDALL of Colorado. Madam Speaker, I have reviewed two amicus 
briefs filed for consideration by the U.S. Supreme Court in connection 
with the case of District of Columbia v. Heller.
  One brief has been signed by a majority of our colleagues in 
Congress. The other was filed on behalf of the Bush administration by 
the Solicitor General, Paul D. Clement. I want to explain why I have 
decided not to join in signing the first one.
  First of all, I want to make clear I am aware of the importance of 
this case as regards the interpretation of the constitutional reach of 
the Second Amendment. As I said when the United States Court of Appeals 
for the District of Columbia decided Parker v. District of Columbia 
last year, I am convinced that the Constitution's Second Amendment 
protects the rights of individuals to keep and bear arms. I believe the 
Court of Appeals' decision striking down several gun laws passed by the 
D.C. City Council in that case was rightly decided and persuasively 
reasoned with regard to that fundamental point. As one who reveres the 
Bill of Rights and as a strong proponent of individual liberty in other 
contexts, like privacy and freedom of expression, I am very comfortable 
asserting that the Second Amendment ought to be recognized as 
protecting individual rights and not just a collective right to form 
militias.
  The decision in Parker has been appealed to the Supreme Court in 
District of Columbia v. Heller, and I had an opportunity to read the 
amicus brief in support of upholding the decision of the Court of 
Appeals that Members of Congress were urged to sign. After carefully 
reviewing the brief, I found that I agreed with the arguments in 29 of 
its 31 pages, which support my view about the nature of the individual 
right guaranteed by the Second Amendment.
  If the brief stopped there, I would support it without hesitation. 
However, it does not stop there. Page 30 of the amicus brief includes 
declarations that ``the District's handgun ban is unreasonable on its 
face'' and further, that ``The lower court's categorical approach in 
holding a prohibition on handguns to be unconstitutional per se was 
correct.''
  Those assertions directly contradict statements in the Solicitor 
General's brief warning that while the Second Amendment does protect an 
individual right, the lower court's categorical approach to reviewing 
the D.C. laws in question ``could cast doubt on the constitutionality 
of existing federal legislation'' including restrictions on possession 
of firearms by convicted criminals, fugitives from justice, illegal 
immigrants, and people suffering from mental disorders.
  Some may ask why the many Members of Congress who signed the first 
brief did not similarly hesitate to so flatly contradict the arguments 
of the Solicitor General. It is possible that my colleagues read the 
brief as only trying to make clear that the lower court rightly ruled 
about the nature of the right protected by the Second Amendment and 
rightly rejected the absurd argument advanced by the District of 
Columbia that if any individual right attached to the Second Amendment 
it should only apply to weapons (not handguns) known at the time the 
founders drafted the Constitution. But if that was the intention, the 
amicus brief is drafted in an ambiguous way that is regrettable.
  I can speak only for myself, but as a non-lawyer who thinks Mr. 
Clement is highly qualified to serve as Solicitor General, I find it 
difficult to reject his concerns outright. And it is for this reason I 
cannot unequivocally endorse the amicus filed by my colleagues. It 
seems to me that the Supreme Court will need to take the Solicitor 
General's views into account when the Court considers the right 
standard for reviewing the decision of the lower court.

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