Does the Second Amendment give individuals not affiliated with any state-regulated militia the right to "keep and bear" arms?
The District of Columbia bans possession of handguns, and bans anyone from carrying a handgun or other deadly or dangerous weapon without a license within its borders (the "Gun Ban"). It also requires that any firearms which may be kept within the District, such as rifles, be kept either disassembled or with a trigger lock. These are some of the most restrictive gun laws in the nation. Mr. Heller claims these laws violate his Second Amendment right to "keep and bear Arms." The Supreme Court has not taken a Second Amendment case since 1939, and has never decided whether the Second Amendment confers a right to bear arms upon individuals or only upon the militias it refers to in its opening clause. In the intervening 69 years, the federal and state governments have passed many laws regulating and restricting the ownership and use of guns. Should the Supreme Court uphold the D.C. Circuit's invalidation of the Gun Ban, it could have a substantial impact on these gun laws and will almost certainly lead to more litigation as gun rights advocates challenge those laws as violating the Second Amendment. If the Court finds that the Gun Ban is constitutional, it will strengthen the ability of government to regulate gun ownership, and may result in more restrictive gun laws across the country.
Questions as Framed for the Court by the Parties
Whether the following provisions - D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 - violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?
In 1976, the District of Columbia ("D.C." or the "District") City Council enacted three of the strictest gun control ordinances in the United States . The ordinances entirely ban the possession of handguns within the District and, while allowing residents to keep rifles and shotguns in their homes, require those guns be kept disassembled or bound by a trigger lock (hereinafter referred to as the "Gun Ban").
In 2003, Dick Heller and five other plaintiffs filed suit against D.C. in the U.S. District Court for the District of Columbia, alleging that the Gun Ban violates their Second Amendment right to "keep and bear arms." All the plaintiffs in this lawsuit were recruited by Robert Levy, a lawyer who created and financed the lawsuit for the purpose of getting a Second Amendment case before the Supreme Court. The District Court found that the Second Amendment does not give an individual a right to gun ownership except where the individual is a member of an organized militia and granted the District's motion to dismiss. Heller and the other plaintiffs appealed to the D.C. Circuit Court of Appeals.
The Court of Appeals first confronted the question of whether any of the plaintiffs had standing to challenge the Gun Ban. To satisfy this requirement, a plaintiff must have suffered an actual injury due to the District's laws; simply wanting to keep a handgun at home is insufficient to give rise to standing. The court found that only Heller had standing, because he suffered an actual injury when the District denied his application for a handgun permit. Because the Gun Ban had never been enforced against the other plaintiffs, the court dismissed them from the suit.
The Court of Appeals then considered whether the Second Amendment right to bear arms is an individual right or a right contingent on membership in a well-regulated militia. It reviewed the language and history of the Second Amendment and the Supreme Court's sparse jurisprudence on that amendment. The court determined that when Congress passed the Bill of Rights, the term "militia" referred generally and broadly to the segment of the population able to be conscripted into a militia by the states; it did not refer to any organized military force. Based upon that finding, it found that there is an individual right to keep and bear arms, because it "facilitated military service" by ensuring that citizens would have the necessary arms when called to military duty.
The Court of Appeals also considered what "arms" are protected by the Second Amendment. Relying on the Supreme Court's prior decision in United States v. Miller, the Court of Appeals found that the Second Amendment protects arms that bear a "reasonable relationship to the preservation or efficiency of a well regulated militia," and that were personally owned and "lineal descendants" of weapons "in common use" at the time Congress passed the amendment. Applying this standard, the D.C. Circuit found that handguns are lineal descendents of the pistols in use at the time of the American Revolution, and that therefore, the Gun Ban is unconstitutional. The District of Columbia appealed this holding to the Supreme Court, which granted certiorari on November 20, 2007.
The Second Amendment directs, "A well regulated Militia, being necessary to the security of a free State , the right of the people to keep and bear Arms, shall not be infringed." The Supreme Court has never decided whether the right to "keep and bear arms" is an individual right or a right conferred only upon members of a militia.
The Implications of United States v. Miller
The Court last addressed the Second Amendment in 1939, in United States. v. Miller. The Miller Court held:
[i]n the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.
Under Miller, when considering whether there is a right to bear a gun, the court should first determine if the weapon "has some reasonable relationship to the preservation or efficiency of a well regulated militia," and next whether it is "of the kind in common use" at the time of the American Revolutionary War.
The Miller Court further held that the National Firearms Act of 1934, which required that certain types of firearms be registered with the Tax Unit (now the Bureau of Alcohol, Tobacco, Firearms and Explosives), was not a violation of the Second Amendment. Since Miller, several state courts have validated state authorized restrictions on firearms so long as the restrictions are reasonable.
At the center of this case lies the debate whether the Second Amendment confers an individual right to bear arms for personal use or if the right is dependant upon an individual's association with an organized military force like the National Guard. The District argues that the right to bear arms is dependant upon association with a "well regulated militia" and does not confer the right "to possess guns for private purposes." Heller argues that the D.C. Circuit Court of Appeals was correct in finding that the phrase "right of the people" in the Second Amendment confers an individual right, as opposed to a collective right bestowed upon a group or militia.
The Interaction of Two Clauses of the Second Amendment
The Second Amendment contains two clauses. The first states "A well regulated Militia, being necessary to the security of a free State ," and the second clause states "the right of the people to keep and bear Arms, shall not be infringed." The parties differ in their interpretation of how the introductory first clause impacts the rights granted in the second clause.
The District, while maintaining that the plain language of both clauses grants a right to bear arms only to those associated with a militia, argues that the lower court's construction "read the opening clause out of the Amendment" by recognizing a right to gun ownership for private use. The District argues that this interpretation of the Amendment contravenes the presumption that each clause in the Constitutional is meant to have effect.
Heller argues that the first clause is simply a preamble or statement of purpose, but that Congress did not intend it to restrict the rights granted in the second clause. Heller contends that the second, or in his terms, the "operative rights-securing clause," is "grammatically and logically independent of the preamble." Thus, it would contravene long-standing rules of construction for the Court to interpret the preamble in such a way as to restrict the rights granted in the operative text.
The definition of "Militia" and "Bear Arms"
The District contends that both clauses of the Second Amendment, read separately or together, indicate that it only confers a right to bear arms on those associated with a militia. The District argues that the use of "militia" in the opening clause restricts the right to bear arms only for military purposes and that this interpretation coincides with the Militia Clause within Article I, Section 8 of the U.S. Constitution. The Militia Clause authorizes Congress
[t]o provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.
Further, the District believes the term, '"well regulated" in the Second Amendment underscore[s] that the "Militia" contemplated by the Framers were organized and trained fighting forces." The District reads the Militia Clause and Second Amendment to require militia members to undergo "military exercises and evolutions before acquiring the degree of perfection which would entitle them to the character of a well-regulated militia."
Heller believes the use of "militia" in the Second Amendment advances the individual right to bear arms. He cites references in the Federalist Papers and in news articles from the Revolutionary War era which use the term militia to describe the general free male populace of the colonies, all of whom were able to bear arms and resist the British government. Heller argues the composition of the militia was thus broader than that in England and the right to bear arms correspondingly broad.
Heller argues that today Congress continues to define militia broadly as " comprising all able-bodied males from 17 to 45, who are or intend to become citizens; and members of the National Guard up to age 64," to advance the idea that the militia need not be exclusively comprised of members currently in the National Guard. Heller contends that for this broadly defined militia to be effective, the ordinary people must possess and be proficient in the use of their private arms. Unlike the District, Heller believes the term, "well regulated," only evokes discipline and training amongst militia members, not the invocation of state control.
The parties also offer differing interpretations of the phrase "bear arms" which support their respective positions on the meaning of militia in the Second Amendment. The District interprets the phrase, "bear arms," as the right to bear military weapons, restricted to members of the militia using guns in a military context. The District tried to associate the word, "keep" with the term, "keep up," a term used in phrases such as "keep up a standing army." The D.C. Circuit disagreed with this argument because it "mocks usage, syntax, and common sense."
Heller believes the term "bear arms" equates to an individual right to "carry" and "possess" arms in one's home. Heller supports this argument by citing several state constitutions and legislative texts where the phrase, "bear arms" confers an individual right. Heller also relies heavily upon a hunting bill drafted by Thomas Jefferson and introduced by James Madison in 1785 before the Virginia legislature. The bill contains the phrase, "the recognizance he shall bear a gun.," and Heller believes this indicates that the term "bear arms" can confer a personal right to bear arms outside a military setting.
The Level of Review: Strict Scrutiny or Rational Basis Review
The Supreme Court may choose to address the appropriate level of judicial review for Second Amendment cases. Heller believes that because this case is based on statutory interpretation, the Court need not determine the level of review. However, he argues that if the Court chooses to entertain the issue, laws impacting Second Amendment rights should be subject to strict scrutiny because the right to bear arms is a fundamental right that should only be infringed by a compelling government interest. The District contends that the Second Amendment gives state and local government the ability to regulate guns, and that this ability is essential to their ability to address the increased threat posed by gun. Therefore, the District argues gun regulations should be subject to a reasonableness review, which looks at the legislature's "actual reasons" for enacting the law.
The District and the Second Amendment
The District argues that the Second Amendment does not apply to laws limited to the District with the same force as it would in one of the fifty states. It contends that Congress passed the Second Amendment to protect the states from federal actions to disarm their militias. Thus, even if the Court finds that there is an individual right to firearms, that right is only protected to the extent federal legislation interferes with the effectiveness of state militias.
Further, the District argues that the Second Amendment does not constrain the ability of the states to regulate firearms. The District concludes that the Second Amendment should not operate to constrain the its power to regulate firearms because first, legislation limited to the District does not implicate the federalism concerns that motivated the passage of the Second Amendment, and second, because it is unreasonable to think the Framers "intended Congress to be more constrained in the seat of federal power than a state would be in it's own territory."
Heller argues that the government of the nation's capitol must obey the Constitution and the Bill of Rights because these texts are the supreme law of the land. He argues that "Congress can exercise general police powers within the District, 'so long as it does not contravene any provisions of the Constitution of the United States .'" More specifically, Heller believes that the District is not a "'Forbidden City' in which federal officials would be shielded from the hazards of interaction with the otherwise-free people of the United States ." Therefore, D.C. can create reasonable regulations so long as those regulations do not infringe upon constitutionally guaranteed rights. Here, Heller believes the three D.C. statutes at question are complete constraints on the right to bear arms and therefore are unconstitutional.
The D.C. Court of Appeals in this case relied upon the Supreme Court's decision in O'Donoghue v. United States, determining that the Constitution and Bill of Rights are fully in effect in the District. The appellate court further held that the District could formulate reasonable gun restrictions since the District is subject to the provisions within the Constitution and Bill of Rights, but that the restrictions in this case were unreasonable because they banned the use of handguns, arms protected by the Second Amendment.
The interpretation of the Second Amendment has been debated for years. On one side are gun rights advocates who argue that the Second Amendment protects the right of individuals to "keep and bear arms." On the other side are gun control advocates, who believe that the Second Amendment only gives individuals associated with a militia this right.
Impact on Existing Gun Control Laws
The Supreme Court's decision in this case will provide the first interpretation of the Second Amendment in 69 years and may have a significant impact on the United States ' gun control laws. The American Bar Association (" ABA ") argues that finding an individual right to keep and bear arms would destabilize the existing gun control laws and regulations passed by the federal government and state governments. The ABA contends that "separating the right to bear arms from the maintenance of a well-regulated militia would cast doubt on the authority of state and local governments to regulate firearms" and undermine the social policy and law enforcement decisions that are grounded in these laws.
A brief filed by district attorneys in support of D.C. notes that such a finding will have a significant impact on their ability to enforce existing gun laws. They argue that fear a statute is "susceptible to attack" on Second Amendment grounds could "impair a prosecutor's ability to protect public safety." In their view, this fear may cause prosecutors to offer more lenient plea bargains and seek lesser convictions. They argue that if the Supreme Court finds there is a broad individual right to keep and bear firearms, it will create confusion over the enforcement of existing firearms laws and cause an "inevitable flood of constitutional challenges."
The National Rifle Association ("NRA") argues that the District's interpretation of the Second Amendment gives the federal government the power to completely disarm the people and make the Second Amendment meaningless. It claims that under this interpretation, only members of a militia organized by the federal government would have the right to keep and bear arms. Thus, Congress could eliminate all citizens' Second Amendment rights simply by not organizing a militia. The NRA notes that this would allow the government to wholly control who has the right to keep and bear arms, and could empower oppressive regimes that could then legally only arm their supporters. The NRA asserts that this result is counter to the rationale behind that Second Amendment: that the people would be armed and thus "remain a bulwark for the 'security of a free state .'"
Self-Defense and Public Safety
Amici supporting the District of Columbia argue that gun control laws have important and significant public health and safety benefits. For example, the Brady Center to Prevent Gun Violence ("Brady Center") argues that there has traditionally been broad legislative authority to regulate guns, and that the resulting gun laws have contributed to public safety by keeping guns out of the hands of dangerous people. It notes that gun laws are at the core of the states' police powers, and involve important questions of public policy that are best and most appropriately addressed through legislation. Similarly, a brief filed by several major American cities notes that depriving cities of flexibility in crafting "locally tailored solutions to the particular threats and costs of gun violence" will damage their ability to protect their residents and promote public well-being. Public health advocates contend that the presence of a gun in a home increases the risk of suicide, homicide, and accidental gun death.
In contrast, the NRA contends that the Gun Ban has not improved public safety by reducing the rate of murder and violent crime in D.C., but instead has disarmed law-abiding citizens "while leaving criminals as dangerous as ever." It argues that in effect, the Gun Ban prevents citizens from exercising their common law right to self-defense, particularly their right to defend their homes with deadly force, because handguns are the "most effective and safe" way of deterring home invaders. Expanding on this argument, law enforcement groups claim that the knowledge a home might contain firearms protects lives because it discourages many criminals from entering homes when the owners are present.
Similarly, GeorgiaCarry.Org and the Congress of Racial Equality argue that many laws restricting firearms such as handguns have a disparate impact on poor and minority communities. Both groups argue that the ability to defend oneself, family, and property, "is much more critical in the poor and minority neighborhoods ravaged by crime and without adequate police protection." The Congress of Racial Equality argues that gun control laws also lead to civil liberties violations. In particular, it claims that the primary methods of enforcing gun control laws are illegal searches by the police which violate the Fourth Amendment right against unreasonable searches and seizures.
The NAACP Legal Defense & Educational Fund ("NAACP") counters that invalidating gun control laws is not a solution to their discriminatory enforcement. It notes that African Americans suffer disproportionately from handgun deaths and violence, nationally and in D.C. The NAACP argues that the Gun Ban is an important step towards addressing the gun problem and saving lives, even if it does not completely solve the gun problem due to the easy availability of guns in neighboring jurisdictions.
This is the first Second Amendment case on the Supreme Court's docket in almost seventy years, leaving gun advocates and opponents waiting in anticipation for the Court's findings, which may provide answers to many long-lasting questions regarding the scope of the Amendment. Gun advocates interpret the Second Amendment to provide an individual right to possess guns for personal use. Gun opponents believe the Second Amendment provides a collective right to bear arms for individuals associated with an organized military force like the National Guard. If the Court determines the Second Amendment provides an individual right to bear arms for personal use, several subsequent questions arise from this landmark proposition, such as the legality of gun prohibitions and restrictions, what level of scrutiny applies to restrictions and regulations, and whether the right is fundamental. However, if the Court determines the Amendment does not guarantee an individual right, states will have little stopping them from passing laws restricting gun ownership.
- Lauren Buechner
- Fritz Ernemann
- Cecelia Sander Cannon
· Brief for the States of Texas, Alabama, Alaska, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Utah, Virginia, Washington, West Virginia, and Wyoming in Support of Respondent
· Brief for Organizations and Scholars Correcting Myths and Misrepresentations Commonly Deployed by Opponents of an Individual-Right-Based Interpretation of the Second Amendment in Support of Respondent