Cuomo Stands Alone on 2nd Amendment

By JOSEPH GOLDSTEIN, Staff Reporter of the Sun
January 14, 2008

In arguing that the Second Amendment case now before the Supreme Court shouldn't have any bearing on state gun control laws, Attorney General Cuomo is finding himself largely alone among state attorneys general.

Mr. Cuomo filed a brief, signed onto by only four other states and Puerto Rico, to the federal high court last week in District of Columbia v. Heller, which will be heard in March. In the case, the Supreme Court will review whether Washington, D.C., residents have a right under the Second Amendment to keep handguns at home for self-protection. The District of Columbia has what amounts to a blanket ban on handguns.

The question of whether states can regulate gun ownership is not at the forefront of the D.C. case. But gun rights proponents say a decision endorsing a reading of the Second Amendment that favors private gun ownership will lead to challenges of state gun control laws.

Mr. Cuomo's brief is, in effect, an effort to limit any damage to the relatively strict handgun regulations in New York and some other states that might result from a Supreme Court decision favoring private gun ownership. The brief argues that the Second Amendment does not limit the power of state governments to regulate gun ownership.

The brief argues that the Second Amendment protects the rights of states to keep militias without interference from the federal government, and is therefore primarily about state sovereignty. In that sense, the brief suggests, a reading of the Second Amendment that put restrictions on what states can or can't do "would dramatically alter the Amendment's meaning and turn its federalism-grounded purpose on its head."

That argument is a position frequently argued by supporters of gun control. What is most unusual about the brief, perhaps, is not what Mr. Cuomo argues, but what little backing he managed to get from other states. The brief, prepared by Mr. Cuomo's office, is joined by Hawaii, Maryland, Massachusetts, New Jersey, and Puerto Rico.

Although briefs in support of Washington's law were due last week, the briefs opposing the District of Columbia's effort to save its handgun ban won't be filed for another month. That may be when the bulk of the state attorneys general make their position known.

"I believe that you will see a substantial number of lawmakers and state attorneys general siding with the individual-rights view of the Second Amendment," the lawyer who expects to argue against Washington before the Supreme Court, Alan Gura, said.

Some of those briefs are expected to contain arguments that endorse an individual rights interpretation but also leave room for substantial regulation of guns. Because many legal experts expect the Supreme Court to strike down the Washington law, even attorneys general in favor of some gun control may see it as better strategy to side with the expected winners.

"I could see an attorney general saying that maybe if I come in on the other side, I may be able to find the middle ground and have more credibility with the court," a former attorney general of Maine, James Tierney, who now runs the National State Attorneys General Program at Columbia University, said.

"They think the District of Columbia is likely to get struck down, but they don't want that decision to go beyond striking down that provision," he said.

Some attorneys general may simply not take a side.

Besides Mr. Cuomo, few New York politicians filed briefs opposing an individual rights view of the Second Amendment. The city's chief lawyer, Michael Cardozo, who was appointed by Mayor Bloomberg, signed onto San Francisco's brief, which argues "firearms regulation is a critical part of cities' efforts to protect the health and safety of their residents."

District attorneys from four of the five boroughs and Albany argue that courts have long held that the Second Amendment provides for only the right of a state to form a militia.

Of the 18 members of the House of Representatives who filed a brief arguing against an individual rights interpretation of the Second Amendment, only one, Rep. Carolyn McCarthy, belongs to the New York delegation. It is possible that the lawmakers' brief wasn't circulated widely.

"My suspicion is that because of the holidays and the fact that it was circulated during the recess, there were some members who would have decided to join who didn't because they didn't review it," the attorney who filed the brief, Scott Gant of Boies, Schiller & Flexner LLP in Washington, said.

Cuomo Stands Alone on 2nd Amendment

Reader comments on this article