February 29, 2008
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The Battle Over the Second Amendment: District of Columbia v. Heller
Dan Schweitzer, Supreme Court Counsel
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.
It has been 216 years since the states ratified the Second Amendment, yet the United States Supreme Court has never definitively interpreted it. The long wait ― which has prompted countless debates and arguments ― will likely end in late June, when the Court is expected to announce its decision in District of Columbia v. Heller, No. 07-290. As a preview to the upcoming oral argument, I set out below a list of key questions regarding the Second Amendment, along with the parties’ (and some amici’s) answers to them.
Before turning to the questions, here is a brief background to the case. The District of Columbia bans most residents from possessing handguns and requires that other firearms in the home (such as rifles and shotguns) be “kept unloaded and disassembled or bound by a trigger lock or similar device.” D.C. Code §§7-2502.01, 7-2502.02, 7-2507.02. Six District residents filed suit in federal court asserting that the District’s handgun ban violates the Second Amendment, which, they contend, protects an individual’s right to bear arms for private uses such as self-defense. By a 2-1 vote, the D.C. Circuit agreed with them, and invalidated the ban. The U.S. Supreme Court granted certiorari to review that decision, and briefing is almost complete. The case will be argued on Tuesday, March 18, before what will surely be a packed courtroom.
At bottom, District of Columbia v. Heller presents three issues: First, does the Second Amendment merely entitle individuals to participate in a state militia or does it provide a more general right to possess arms for private uses such as self-defense and hunting? Second, if the latter, what weapons does the Amendment cover? Why, for example, would it extend to handguns but not to machine guns? Third, if the Amendment entitles individuals to possess arms for their own private uses, what standard of review applies to government regulations of that right? The questions below are critical to resolving these three issues.
Question 1: Don’t the words “the right of the people” demonstrate that the Second Amendment protects individual, not collective, rights?
Notably, both sides agree that the answer to this question is yes. In the past, the dispute was cast as being between an “individual rights” reading of the Amendment and a “collective (or state) rights” reading of the Amendment. Recently, however, the pro-gun-control community recognized that it cannot win the battle on those terms. A right “of the people” cannot mean a right “of the states.” For this reason, the District does not argue that the Second Amendment grants no rights to individuals. Rather, the issue is which rights it grants. In the District’s words, “The question is not whether individuals can enforce the right protected by the Second Amendment. The question instead is whether this right is limited to the possession of militia-related weapons.” DC Br. 20.
Question 2: Doesn’t the Second Amendment’s preamble tell us that its sole purpose is to allow individuals to serve in state militias?
Although the District does not rely exclusively on the preamble’s reference to militias, that clause forms an important part of its argument. The District points out that the Second Amendment is the only provision in the Bill of Rights that contains a preface “stating its reason for existence.” DC Br. 12. And the framers of the Bill of Rights had good reason to protect state militias. The Militia Clauses of the original Constitution gave Congress the power to establish a standing army and navy and to “provide for organizing, arming, and disciplining” state militias. U.S. Const. art. I, §8 cls.12-16. Anti-Federalists denounced these Clauses at the state ratifying conventions, arguing that “a federal standing army would prove tyrannical” and that the Clauses gave Congress the power to disarm and thereby destroy state militias ― which were the only potential counterweights. By protecting individuals’ right to join state militias, the Second Amendment ensures the existence of those counterweights. DC Br. 23-24. To apply the Amendment outside the militia context would be to “read the opening clause out of the Amendment.”
Heller’s core response is that a commonplace rule of statutory construction ― then and now ― is that preambles do not limit or extend the meaning of statutes. The “operative rights-securing” part of the Second Amendment speaks generally to “the right of the people to keep and bear Arms,” without limitation. Heller (H) Br. 5-6. Further, argues Heller, preambles in other constitutional and statutory provisions have not been read to limit their operative scope. For example, the Copyright and Patent Clause begins, “To promote the Progress of Science and the useful Arts . . . .” U.S. Const. art. I, §8 cl. 8. Yet the courts have not required Congress to show that its copyright and patent laws further progress in the science and the arts, let alone required individual patent and copyright owners to make that showing. H Br. 7.
Question 3: How does the pro-gun side explain the preamble’s reference to a “well regulated Militia”?
The United States, in its amicus brief supporting Heller on this issue, puts it nicely: “The Second Amendment’s prefatory language . . . reflects that the Framers regarded the furtherance of militia operations as a particularly salient benefit of private firearm ownership, but it does not limit the scope of the Amendment’s substantive guarantee.” US Br. 14. Put slightly differently, “protection of the militia was a principal object of the Second Amendment;” and “the Framers sought to achieve that goal . . . by giving constitutional status to the pre-existing common-law ‘right of the people to keep and bear Arms.’” US Br. 14-15.
How, one might ask, would giving people the right to carry guns for their private use protect the existence of state militias? It would not, “[i]f the term ‘well regulated Militia’ is understood to refer to a select corps akin to today’s National Guard.” US Br. 16. But at the time of the founding, “the militia” was not a specific government-organized armed forces. Rather, argue Heller and the United States, it consisted of “the people” as a whole, who could band together “with arms in hand” to resist oppression. And “[i]n order that the ordinary civilians constituting the Militia might function effectively, it was necessary that the people possess arms and be familiar with their use.” The Second Amendment secures the right of the people to “possess arms and be familiar with their use” generally. And that, in turn, allows them to “function as a well regulated [i.e., disciplined] militia” when necessary. H Br. 15-18.
The District draws a different picture of 18th century state militias. The District notes that the “Articles of Confederation had required ‘every State’ to ‘keep up a well-regulated and disciplined militia, sufficiently armed and accoutered.’ Most states passed detailed laws setting forth requirements for membership and discipline, generally requiring men of certain ages to appear periodically for muster and training under the supervision of state-appointed officers.” DC Br. 13. Consistent with that practice, “[t]he Second Militia Act, enacted by Congress a year after the Second Amendment’s ratification, . . . called for musters and training, . . . specified particular weaponry all militia members were required to possess” and “placed special emphasis on military discipline.” DC Br. 14. All told, argues the District, founding-era militias were nothing like the disorganized bands of citizenry portrayed by Heller and the United States.
Question 4: What does it mean to “keep and bear Arms”?
We now move from the Second Amendment’s preamble to its operative language. If the phrase “keep and bear Arms” has an exclusively military connotation, the pro-gun-control cause is greatly advanced; if the phrase has a more generic meaning, the pro-gun-ownership cause is greatly advanced. Literally thousands of pages have been written over the years on this issue. The District and Heller take up the cudgel and cite competing dictionaries, treatises, cases, and Framers.
Here’s a very brief sample. From the District: “‘bear arms’ refers idiomatically to using weapons in a military context. This was the only sense in which the young Congress and its predecessors ever used the phrase. . . . And in recorded congressional debates from 1774 through 1821, every one of the thirty uses of the phrase matched the idiomatic meaning of the day.” DC Br. 16. From Heller: “Eighteenth-century constitutional drafters used ‘bearing arms’ in the individual sense. See Pa. Const. of 1776, art. XIII (‘That the people have a right to bear arms for the defence of themselves and the state. . . .’); Vt. Const. of 1777, Ch. 1, art. XV (same).” H Br. 12.
Question 5: Does the drafting history of the Amendment provide any clues as to its meaning?
By this point, you will not be surprised to learn that both sides claim the drafting history supports their construction of the Amendment. James Madison’s draft of what became the Second Amendment provided: “The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.” Various revisions were made by the House Select Committee, the House, and the Senate; and various proposed revisions were rejected. Some of the proposed revisions would have made the Amendment more clearly militia-oriented; some would have made the Amendment more clearly protective of the right to self-defense. What can we take from this?
The District argues that the third clause in Madison’s original proposal ― “but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person” ― confirms that the phrase “bear arms” has a military connotation and highlights the Amendment’s military focus. Further, contends the District, “[a]ll remarks recorded in the House’s debate related to military service; none pertained to private use of weapons, including self-defense.” DC Br. 28.
Heller, by contrast, points to the Senate’s rejection of the proposed amendment, “That each State respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same . . . .” In Heller’s view, the Senate’s rejection of this proposal ― which “stated, in unmistakably direct and concise fashion, exactly that meaning which [the District] would divine in the Second Amendment” ― tells us the Framers’ true intentions. H Br. 36.
Question 6: Does the Second Amendment apply to the states? Does it apply to the District of Columbia?
The Supreme Court has construed the Fourteenth Amendment as having “incorporated” ― i.e., made applicable to the states ― most of the individual rights granted in the first eight amendments. The Court has not yet, however, addressed whether the Second Amendment should likewise be incorporated. The issue is not directly presented in this case because, of course, the District is not a state. But the issue lurks close to the surface. If the Amendment only limits the authority of the federal government, it accomplishes far less than the pro-gun advocates desire.
In the end, I think, it is impossible to separate the incorporation issue from the merits. If the Second Amendment means what Heller says it means ― as protecting a fundamental individual right, untethered to service in a state militia ― it is difficult to see why it would not be incorporated. See Amicus Brief of Texas et al. 23 n.6 (“[a]lthough the Court need not reach the issue of incorporation in this case, amici States submit that the right to keep and bear arms is fundamental and so is properly subject to incorporation.”). But if the Amendment is limited to protecting state militias against undue federal interference, it makes little sense to apply the Amendment against states themselves. See DC Br. 36 (“the Amendment was enacted to protect states’ prerogatives, not constrain them”).
The unique status of the District leads it to make an added argument. The Seat of Government Clause, U.S. Const. art. I, §8, cl. 17, gives Congress plenary authority over the District and “ultimate legislative power over whether and how to arm any militia.” DC Br. 36-37. The Framers included the Clause precisely to ensure that the new federal government could defend itself. “Particularly given that concern, the Framers could not have intended to deprive the federal government of the most important power of self-protection it has . . . by disabling Congress from enacting firearms regulations.” DC Br. 38. Heller is dismissive of this argument, stating that the District’s “legislative authority is not above the Constitution, but derived from it. . . . [T]he District is not free to ignore constitutional restrictions.” H Br. 63, 64. Put more dramatically, “Washington was not planned as a ‘Forbidden City’ in which federal officials would be shielded from the hazards of interaction with otherwise-free people of the United States.” H Br. 65. Of course, those arguments assume Heller’s reading of the Second Amendment ― which takes us back to where we began this discussion.
Question 7: Didn’t the U.S. Supreme Court adopt the District’s construction of the Second Amendment in United States v. Miller?
In United States v. Miller, 307 U.S. 174 (1939), the Court rejected a Second Amendment challenge to a federal law that restricted possession of sawed-off shotguns. The Court stated that the “obvious purpose” of the Amendment was “to assure the continuation and render possible the effectiveness of [state militias],” and that the Amendment “must be interpreted and applied with that end in view.” 307 U.S. at 178. The Court concluded that, “[i]n the absence of any evidence tending to show that possession or use of [sawed-off shotguns] 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.” Id.
Not surprisingly, the District points to that language as fully supporting its position that the Second Amendment only protects the right to bear arms insofar as those arms are being use in conjunction with service in a state militia. See also Amicus Brief of New York et al. in Support of Petition for Writ of Certiorari at 3-10 (arguing that “[o]nly by grossly distorting the holding of Miller . . . could the court of appeals” conclude that the Second Amendment protects the right to bear arms for personal use). Not so quick, argues Heller: “In examining whether Miller had a right to possess his sawed-off shotgun, this Court never asked whether Miller was part of any state-authorized military organization.” H Br. 40. In Heller’s view, Miller spoke only to the types of weapons whose possession the Second Amendment protects; it did not state that private uses of protected weapons fall outside the Amendment’s rubric.
Question 8: If the Second Amendment entitles individuals to possess weapons for private use, does that entitlement extend to any and all weapons?
What if my next door neighbor believes that possessing a machine gun will best ensure his safety? Does Heller’s reading of the Second Amendment give him that right? The answer is no. Pointing to United States v. Miller, Heller states that “an ‘arm’ is protected” by the Second Amendment “if it is of the type that (1) civilians would use, such that they could be expected to possess it for ordinary lawful purposes . . ., and (2) would be useful in militia service.” H Br. 44. The D.C. Circuit applied an essentially identical test, and the Texas et al. amicus brief embraces it as well (Br. 27).
The first requirement stems from the pro-gun side’s view, discussed earlier, that the “militia” consisted of “the people” as a whole, who could band together “with arms in hand” to resist oppression. (Miller itself stated that “the Militia comprised all males physically capable of acting in concert for common defense,” and “that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U.S. at 179.) This requirement usefully (for the pro-gun side) eliminates any protections for machine guns, Stinger missiles, and other military weapons that few, if any, law-abiding persons would want in private hands.
The second requirement flows from Miller’s reasoning in upholding the federal laws restricting possession of sawed-off shotguns. Heller acknowledges that this “requirement may be in tension with the pre-existing right to keep and bear arms, which is not always related to militia service.” But Miller remains good precedent, and Heller therefore incorporates its holding into the test.
The District counters that Heller’s proposed test “is neither meaningful nor workable. Is the assault rifle a lineal descendent of the musket? How ‘common’ must the weapon’s use be, and in what locations and in what populations would the test run? Because every firearm has some military application, how well-suited must it be?” DC Br. 45. For this reason, the District contends that even if the Second Amendment protects a right of gun ownership for self-defense, the proper inquiry is not whether a particular weapon is an “Arms” within the meaning of the Second Amendment; it is whether a gun regulation is reasonable. Which leads to the final question . . . .
Question 9: If the Second Amendment entitles individuals to possess weapons for private use, what standard of review applies to government regulations of that right?
The rights created by the Bill of Rights are not absolute. Even the First Amendment’s decree that “Congress shall make no law . . . abridging the freedom of speech” is not as absolute as it sounds. Laws declaring certain government information classified, dictating where billboards may be placed and limiting the volume of sound trucks are just a few of the myriad permissible restrictions on the right to free speech. The Supreme Court has adopted various balancing tests to help it assess the validity of speech restrictions. What test(s) should apply to determine whether gun restrictions are permissible?
The District, as noted, advocates a “reasonable regulation” test ― which, it emphasizes, does not amount to mere rational basis review. “Instead, if the Second Amendment is found to protect a right of gun ownership for purposes of self-defense, a reasonableness inquiry would consider the legislature’s actual reasons for enacting a law limiting exercise of the right.” DC Br. 43. And, “at least where a legislature has articulated proper reasons for enacting a gun-control law, with meaningful supporting evidence, and that law does not deprive the people of reasonable means to defend themselves, it should be upheld.” DC Br. 44. According to the District, its ban on handguns passes that test. The District Council was presented with ample evidence of the dangers privately-owned handguns posed to residents, and residents can use shotguns and rifles to defend themselves in the home. DC Br. 49-56.
The D.C. Circuit adopted a very different approach: “Once it is determined . . . that handguns are ‘Arms’ referred to in the Second Amendment, it is not open to the District to ban them.” The court dismissed as “frivolous” the District’s assertion that its regulatory scheme is reasonable because residents still have access to other weapons. “It could be similarly contended that all firearms may be banned so long as sabers were permitted.” Heller, not surprisingly, embraces this approach: “If the possession of handguns is protected by the Second Amendment, handguns cannot be completely banned, however else the government may regulate their possession and use.” H Br. 41. Alternatively, argues Heller, gun regulations should be subject to traditional strict scrutiny review and that the District’s handgun ban cannot possibly survive such review. H Br. 55-57; see also Texas Br. 29-33 (defending the D.C. Circuit’s analysis and then arguing that the District’s ban also cannot withstand strict scrutiny review).
To the consternation of many in the gun-rights community, the United States (through the Solicitor General’s office) disagrees. In a critical passage of its amicus brief, the United States argues that “[t]he text and history of the Second Amendment strongly indicate that the Amendment does not categorically foreclose legislative prohibitions on particular categories of ‘Arms.’. . . The right protected by the Second Amendment is the right to ‘keep and bear Arms,’ not a right to possess any specific types of firearm.” US Br. 22. According to the United States, “when a law directly limits or prohibits possession of ‘Arms’ in a way that has no grounding in Framing-era practice, the Second Amendment requires that the law be subject to heightened judicial scrutiny.” And in conducting that scrutiny, courts should consider “the practical impact of the challenged restrictions[,] . . . including the nature and practical adequacy of the available lawful alternatives,” as well as “the strength of the government’s interest in enforcement of the relevant restriction.” US Br. 23-24.
For the United States, application of this balancing test is how we knock out private possession of machine guns and Stinger missiles, yet uphold existing federal laws restricting gun ownership by felons, as well as federal laws regulating the manufacture, sale, and importation of firearms. How does the District’s handgun ban fare under the United States’ proposed test? The United States does not tell us, advising the Court to remand the case to the lower courts to apply the test in the first instance.
District of Columbia v. Heller is without question the most important case the Supreme Court will hear this Term. Adding to the excitement is the difficulty of predicting how the Court will rule. Few of the Justices have written on the Second Amendment, and even the originalists on the Court will find powerful arguments on both sides. The best one can predict is that, come late June, the Court will announce an opinion that will make the history books.
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