Order Code RL34446
District of Columbia v. Heller:
The Supreme Court and the Second Amendment
April 11, 2008
T. J. Halstead
Legislative Attorney
American Law Division

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District of Columbia v. Heller:
The Supreme Court and the Second Amendment
Summary
In Parker v. District of Columbia, the United States Court of Appeals for the
District of Columbia Circuit ruled in a 2-1 decision that provisions of the D.C. Code
that prohibit persons from keeping handguns in their home are unconstitutional in
that they infringe upon the individual right to keep and bear arms. Upon making this
determination, the court ruled that three elements of the D.C. gun control statutes
were unconstitutional: (1) an effective prohibition on the registration of pistols (D.C.
Code § 7-2502.2); (2) a prohibition on carrying a pistol, insofar as the prohibition
could be construed to prohibit the keeping of a handgun in the home and preventing
it from being moved throughout a person’s home (D.C. Code § 22-4504); and (3) a
statutory requirement that a registered firearm be kept unloaded and disassembled or
bound by a trigger lock (D.C. Code § 7-2507.02).
The Supreme Court of the United States granted a petition for certiorari on
November 20, 2007, limited to the question of “[w]hether 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?” The Supreme Court of the United States heard oral arguments in the case,
now called District of Columbia v. Heller, on March 18, 2008, and a decision is
expected to be issued during the summer of 2008. Heller marks the first time in
almost 70 years that the Supreme Court has agreed to consider the nature of the right
conferred by the Second Amendment to the Constitution of the United States. This
report provides an overview of prior judicial treatment of the Second Amendment,
with a focus on the litigation in Heller and the potential impact of its outcome.

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Second Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Second Amendment in Federal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
United States v. Miller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Appellate Decisions: 1942-2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
United States v. Emerson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Silveira v. Lockyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Parker v. District of Columbia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
District of Columbia v. Heller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Merits Briefs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Amicus Curiae Brief for the United States . . . . . . . . . . . . . . . . . . . . . 14
Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Analysis and Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

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District of Columbia v. Heller:
The Supreme Court and the
Second Amendment

Introduction
In Parker v. District of Columbia,1 the United States Court of Appeals for the
District of Columbia Circuit held that the Second Amendment to the Constitution
protects an individual right to possess firearms, and struck down provisions of the
D.C. Code that prohibit persons from possessing handguns or using such firearms for
self-defense in the home. The Supreme Court of the United States granted a petition
for certiorari in Parker on November 20, 2007, limited to the question of whether
those provisions of the Districts’ firearms control law “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.” The Supreme Court heard oral argument in the case, now called District of
Columbia v. Heller, on March 18, 2008, and a decision is expected to be issued
during the summer of 2008. Heller marks the first time in almost 70 years that the
Supreme Court has agreed to consider the nature of the right conferred by the Second
Amendment, and its disposition of the case could have significant and far-reaching
consequences for future judicial and congressional consideration of this
constitutional provision. Accordingly, this report provides an overview of prior
judicial treatment of the Second Amendment, with a focus on the potential outcome
and impact of the Court’s pending decision.
The Second Amendment
The Second Amendment to the Constitution states that “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.” Despite its brevity, the nature of the right conferred by
the language of the Second Amendment has been the subject of great debate in the
political, academic, and legal spheres for decades. Generally speaking, it can be said
that there are two opposing models that govern Second Amendment interpretation.
On one side of the debate is what is known as the “individual right model,” which
maintains that the text and underlying history of the Second Amendment clearly
establishes that the right to keep and bear arms is committed to the people, as
opposed to the states or the federal government. On the other end of the spectrum is
the “collective right model” which interprets the Second Amendment as protecting
the authority of the states to maintain a formal organized militia. A related
interpretation, commonly referred to as the “sophisticated collective right model,”
1 478 F.3d 370 (D.C. Cir. 2007).

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posits that individuals have a right under the Second Amendment to own and possess
firearms, but only to the extent that such ownership and possession is connected to
service in a state militia.
One of the key arguments raised both in support of, and in contravention to, an
individual right to keep and bear arms rests upon the text of the Amendment. The
individual right model places great weight on the operative clause of the Amendment,
which states that “the right of the people to keep and bear arms shall not be
infringed.” Accordingly, it is argued that this command language clearly affords a
right to people, and not simply the states. To support this notion, it is argued that the
text of the Tenth Amendment, which makes a clear distinction between “the states”
and “the people” makes it evident that the two terms are in fact different, and that the
founders knew how to say “state” when they meant it.2 Under this reading, it may be
argued that if the Second Amendment did not confer an individual right, it would
simply have read that the right of the states to organize the militia shall not be
infringed. Supporters of the collective right model often counter with the argument
that the dependent clause, by referring to “a well regulated militia” qualifies the rest
of the amendment, limiting the right of the people to keep and bear arms and imbuing
the states with the authority to control the manner in which weapons are kept, and to
require that any person who possesses a weapon be a member of the militia.3
An outgrowth of this rationale has been the argument that in modern times the
militia is embodied by the national guard, and that the modern realities of warfare
have negated the need for the citizenry to be armed.4 The individual rights theorists
counter these arguments by noting that the militia of the founders’ era consisted of
every able bodied male, who was required to supply his own weapon. Also, they
point to 10 U.S.C. § 311, which as part of its express definition of the different
classes of militia states that in addition to the national guard, there is an “unorganized
militia” that is comprised of all able bodied males between the ages of 17 and 45 who
are not members of the national guard or naval militia.5 Moreover, proponents of the
individual rights model deride the notion that an individual right to keep and bear
arms can be read out of the constitution as a result of the existence of advanced
technology or shifting societal mores.6 As is illustrated below, various federal courts
of appeal have given effect to each of these interpretive models, contributing to the
uncertainty that has traditionally characterized the debate over the meaning of the
Second Amendment.
2 See, e.g., Randy Barnett, “Kurt Lash’s Majoritarian Difficulty: A Response to a Textual-
Historical Theory of the Ninth Amendment,” 60 Stan. L. Rev. 937, 948 (2008).
3 See David C. Williams, “The Mythic Meanings of the Second Amendment” 15 (2003).
4 See, e.g., H. Richard Uviller & William G. Merkel, “The Second Amendment in Context:
the Case of the Vanishing Predicate,” 76 Chi. Kent L. Rev. 403 (2000).
5 See Ronald S. Resnick, “Private Arms as the Palladium of Liberty: The Meaning of the
Second Amendment,” 77 U. Det. Mercy L. Rev. 1, 32 (1999).
6 Id. at 50.

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The Second Amendment in Federal Court
Despite the heated debate regarding the meaning of the Second Amendment, the
Supreme Court has only decided one case, United States v. Miller,7 that has tested a
congressional enactment against this constitutional provision. An interesting aspect
of the decision in Miller, as is illustrated by subsequent lower court decisions
discussed below, is that it was, until recently, commonly cited as supportive of the
proposition that the Second Amendment confers a collective right to keep and bear
arms. However, the actual holding, while it did give effect to the dependent clause,
could nonetheless be taken to indicate that the Second Amendment confers an
individual right limited to the context of the maintenance of the militia.
United States v. Miller.
In Miller, the Court upheld a provision of the National Firearms Act that
required the registration of sawed off shotguns. In discussing the Second
Amendment, the Court noted that the term militia was traditionally understood to
refer to “all males physically capable of acting in concert for the common defense,”
and that members of the militia were civilians primarily and soldiers only on
occasion.8 The Court then formulated a rationale that a weapon possessed by an
individual must have some reasonable relationship to the preservation or efficiency
of a well regulated militia. It is important to note that in Miller the defendant did not
present any evidence in support of his argument. Accordingly, the Court held that
“[i]n the absence of any evidence tending to show that possession or use of a
‘shotgun having a barrel of less than 18 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. Certainly it is not within judicial notice that this weapon is any part
of the ordinary military equipment or that its use could contribute to the common
defense.”9
The decision in Miller is perplexing, in that it indicates that there is a connection
between the right to keep and bear arms and the militia, but does not explore the
logical conclusions of its holding, leaving open the question of at what point
regulation or prohibition of firearms would violate the strictures of the Amendment.
Cases decided in the decades following Miller departed from this rather undefined
test, with each succeeding decision arguably becoming more attenuated, to the point
that judicial treatment of the Second Amendment for the remainder of the twentieth
century almost summarily concluded that the Amendment conferred only a collective
right to keep and bear arms.
7 307 U.S. 174 (1939).
8 Id. at 179.
9 Id. at 178.

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Appellate Decisions: 1942-2000.
This process of departure from, and attenuation of, Miller began with the 1942
decision in Cases v. United States.10 In Cases, the Court of Appeals for the First
Circuit stated that a literal application of the Miller test could prevent the government
from regulating the possession of machine guns and similar weapons which clearly
serve military purposes. Beginning its departure from Miller, the Cases court simply
stated that it doubted that the Founders intended for citizens to be able to possess
weapons like machine guns, and further declared that Miller did not formulate any
sort of general test to determine the limits of the second amendment.11 The court in
Cases then applied a new test of its own formulation, focusing on whether the
individual in question could be said to have possessed the prohibited weapon in his
capacity as a militiaman. Applying that rationale to the case at hand, the court
declared that the defendant possessed the firearm “purely and simply on a frolic of
his own and without any thought or intention of contributing to the efficiency of [a]
well regulated militia.”12 In essence, the holding in Cases upheld the constitutionality
of a federal law prohibiting, under certain circumstances, the possession of a weapon
that could be viewed as a weapon of common militia use, on the basis that the
weapon was not in fact used for such a purpose.
The court in Cases buttressed this qualification of the individual right approach
by citing the Supreme Court’s decisions in United States v. Cruikshank13 and Presser
v. Illinois,14 (both of which were decided prior to the advent of modern incorporation
doctrine principles) as support for the proposition that the Second Amendment does
not confer an individual right: “[t]he right to keep and bear arms is not a right
conferred upon the people by the federal constitution. Whatever rights the people
may have depend upon local legislation; the only function of the Second Amendment
being to prevent the federal government and the federal government only from
infringing that right.”15
The concept of the Amendment as a collective protective mechanism rather than
a conferral of individual rights was reinforced by the Third Circuit’s decision that
same year in United States v. Tot.16 In that case, the Third Circuit declared that it was
“abundantly clear” that the right to keep and bear arms was not adopted with
individual rights in mind.17 The court’s support for this statement was brief and
10 131 F.2d 916 (1st Cir. 1942).
11 Id. at 922.
12 Id. at 923.
13 92 U.S. 542 (1875).
14 116 U.S. 252 (1886).
15 Cases, 131 F.2d at 921.
16 131 F.2d 261 (3rd Cir. 1942), rev’d on other grounds, 319 U.S. 463 (1943).
17 Id. at 266.

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conclusory, and did not address any of the relevant, competing arguments.18 This type
of holding became the norm in cases addressing the Second Amendment for the
remainder of the century, with courts increasingly referring to one another’s holdings
to support the determination that there is no individual right conferred under the
Second Amendment, without engaging in any appreciably substantive legal analysis
of the issue.19
United States v. Emerson.
The traditional, albeit highly undefined, balance among the circuits with regard
to judicial treatment of the Second Amendment was upset by the 2001 decision in
United States v. Emerson.20 In Emerson, the Fifth Circuit became the first federal
appellate court to hold that the Second Amendment confers an individual right to
keep and bear arms. The court in Emerson was specifically addressing the
constitutionality of 18 U.S.C. §922(g)(8), which prevents anyone under a domestic
violence restraining order from possessing a firearm. The district court had ruled this
provision to be unconstitutional on the grounds that it allows the existence of a
restraining order, even if issued “without particularized findings of the threat of
future violence, to automatically deprive a citizen of his Second Amendment
rights.”21 The court of appeals agreed with the district court’s conclusion that the
Second Amendment confers an individual right after engaging in an extensive
analysis of the text and history of the Amendment,22 stating that “the history of the
Amendment reinforces its plain text, namely that it protects individual Americans in
their right to keep and bear arms whether or not they are a member of a select militia
or performing active military service or training.”23 In making this determination, the
court explicitly acknowledged that it was repudiating the position of every other
circuit court that had addressed the meaning of the second amendment: “we are
mindful that almost all of our sister circuits have rejected any individual rights view
of the Second Amendment. However, it respectfully appears to us that all or almost
all of these opinions seem to have done so either on the erroneous assumption that
Miller resolved that issue or without sufficient articulated examination of the history
and text of the Second Amendment.”24
Announcing its formal holding, the Emerson court stated: “[w]e reject the
collective rights and sophisticated collective rights models for interpreting the
18 Id. at 266.
19 See, e.g., Love v. Peppersack, 47 F.3d 120, 123 (4th Cir. 1995) (“the lower federal courts
have uniformly held that the Second Amendment preserves a collective, rather than
individual right.”); United States v. Warin, 530 F.2d 103, 106 (6th Cir. 1976) (“[i]t is clear
that the Second Amendment guarantees a collective rather than an individual right.”).
20 270 F.3d 203 (5th Cir. 2001), rehearing and rehearing en banc denied, 281 F.3d 1281 (5th
Cir. 2001), cert. denied, Emerson v. united States, 536 U.S. 907 (2002).
21 United States v. Emerson, 46 F.Supp.2d 598, 610 (N.D. Tex. 1999).
22 Emerson, 270 F.3d at 218-259.
23 Emerson, 270 F.3d at 260.
24 Emerson, 270 F.3d at 227.

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Second Amendment. We hold, consistent with Miller, that it protects the rights of
individuals, including those not then actually a member of any militia or engaged in
active military service or training, to privately possess and bear their own firearms,
such as the pistol involved here, that are suitable as personal, individual weapons and
are not of the general kind or type excluded by Miller.”25 While adopting the
individual rights model, the court in Emerson nonetheless reversed the district court
decision, determining that rights protected by the Second Amendment are subject to
reasonable restrictions:
Although, as we have held, the Second Amendment does protect individual
rights, that does not mean that those rights may never be made subject to any
limited, narrowly tailored specific exceptions or restrictions for particular cases
that are reasonable and not inconsistent with the right of Americans generally to
individually keep and bear their private arms as historically understood in this
country. Indeed, Emerson does not contend, and the district court did not hold,
otherwise. As we have previously noted, it is clear that felons, infants and those
of unsound mind may be prohibited from possessing firearms.26
Applying this standard to the provision before it, the Emerson court noted that
while the evidence before it did not establish that an express finding of a credible
threat had been made by the divorce court, the nexus between firearm possession by
an enjoined party and the threat of violence was sufficient to establish the
constitutionality of 18 U.S.C. §922(g)(8).27 The decision in Emerson was
accompanied by a special concurrence arguing that “[t]he determination whether the
rights bestowed by the Second Amendment are collective or individual is entirely
unnecessary to resolve this case and has no bearing on the judgment we dictate by
this opinion.”28
It is difficult to overstate the significance of the Emerson holding. Even though
the decision did not result in the invalidation of any laws, it marked the first time that
a circuit court adopted an individual rights interpretation of the Second Amendment,
and, in turn, led to the most substantive exposition of the collective rights model by
a sister circuit to date.
Silveira v. Lockyer.
In Silveira v. Lockyer,29 the Court of Appeals for the Ninth Circuit rejected a
Second Amendment challenge to California’s Assault Weapons Ban, specifically
repudiating the analysis in Emerson and adopting the collective right model
interpretation of the Second Amendment: “[o]ur court, like every other federal court
of appeals to reach the issue except for the fifth circuit, has interpreted Miller as
25 Emerson, 270 F.3d at 260.
26 Emerson, 270 F.3d at 261.
27 Emerson, 270 F.3d at 264-65.
28 Emerson, 270 F.3d at 272 (Parker, J., special concurrence).
29 312 F.3d 1052 (9th Cir. 2003), rehearing en banc denied, 328 F.3d 567 (9th Cir. 2003),
cert. denied, Silveira v. Lockyer, 540 U.S. 1046 (2003).

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rejecting the traditional individual rights view.”30 The decision in Silveira is
particularly significant, in that the Ninth Circuit essentially picked up the gauntlet
thrown down in Emerson, engaging in its own substantive analysis of the text of the
Amendment, but reaching the opposite conclusion than that of the Fifth Circuit. This
is important, because the opinion in Silveira acknowledges and purports to rectify the
deficiencies in prior cases that have summarily interpreted Miller as precluding an
individual rights interpretation.
In particular, the Ninth Circuit began its analysis by stating that it agreed “that
the entire subject of the meaning of the Second Amendment deserves more
consideration than we, or the Supreme Court, have thus far been able (or willing) to
give it.”31 After engaging in an extensive consideration of the same historical and
textual arguments that were addressed in Emerson, the court in Silveira stated that
“[t]he amendment protects the people’s right to maintain an effective state militia,
and does not establish an individual right to own or posses firearms for personal or
other use. This conclusion is reinforced in part by Miller’s implicit rejection of the
traditional individual rights position.”32 The court reinforced its conclusion,
declaring:
In sum, our review of the historical record regarding the enactment of the Second
Amendment reveals that the amendment was adopted to ensure that effective
state militias would be maintained, thus preserving the people’s right to bear
arms. The militias, in turn, were viewed as critical to preserving the integrity of
the states within the newly structured national government as well as to ensuring
the freedom of the people from federal tyranny. Properly read, the historical
record relating to the Second Amendment leaves little doubt as to its intended
scope and effect.33
Upon determining that the collective right model controls Second Amendment
analysis, the court held that the amendment “poses no limitation on California’s
ability to enact legislation regulating or prohibiting the possession or use of firearms,
including dangerous weapons such as assault weapons.”34 As in the Emerson
decision, the opinion in Silveira was accompanied by a special concurrence that
argued that the court’s “long analysis involving the merits of the Second Amendment
claims” and its “adoption of the collective rights theory” was “unnecessary and
improper” in light of extant precedent mandating dismissal of such claims for a lack
of standing.35 A request for rehearing en banc was denied by the full court, resulting
in the dissent of six judges.36
30 Silveira, 312 F.3d at 1063.
31 Silveira, 312 F.3d at 1064.
32 Silveira, 312 F.3d at 1066.
33 Silveira, 312 F.3d at 1086.
34 Silveira, 312 F.3d at 1087.
35 Silveira, 312 F.3d 1093-94 (Magill, J., special concurrence).
36 Silveira, 328 F.3d 567 (9th Cir. 2003) (Judge Pregerson: “the panel misses the mark by
interpreting the Second Amendment right to keep and bear arms as a collective right, rather
(continued...)

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The holdings in Emerson and Silveira for the first time presented the Supreme
Court with two contemporaneous circuit court decisions that reached fundamentally
different conclusions regarding the protections afforded by the Second Amendment.
While this dynamic led to a great deal of speculation as to whether the Court would
grant a petition for certiorari in Silveira to resolve this split, the Court denied the
application, presumably due to the fact that, while the two decisions constituted a
concrete split between two circuit courts on this issue for the first time, no firearm
laws were actually invalidated. Accordingly, it is unsurprising that the Court
followed conventional wisdom and traditional practice by avoiding the consideration
of a significant constitutional issue in the absence of a clear and particularized
conflict among the circuit courts.
Parker v. District of Columbia.
The stage for just such a conflict was set in 2007 with the decision in Parker v.
District of Columbia, which marked the first time that a federal appellate court has
struck down a law regulating firearms on the basis of the Second Amendment37 In
Parker, six residents of the District of Columbia challenged three provisions of the
District’s 1975 Firearms Control Regulation Act: D.C. Code § 7-2502.02(a)(4),
which generally bars the registration of handguns (with an exception for retired D.C.
police officers); § 22-4504(a), which prohibits carrying a pistol without a license,
insofar as that provision would prevent a registrant from moving a gun from one
room to another within his or her home; and § 7-2507.02, which requires that all
lawfully owned firearms be kept unloaded and disassembled or bound by a trigger
lock or similar device.38
The Parker court began its opinion by dismissing the claims of five of the six
plaintiffs upon determining that the District’s general threat to prosecute violations
of its gun control laws did not constitute an injury sufficient to confer standing on
citizens who had only expressed an intention to violate the District’s gun control laws
but had not suffered any injury in fact.39 The remaining plaintiff, Dick Heller, was
36 (...continued)
than as an individual right. Because the panel’s decision abrogates a constitutional right, this
case should have been reheard en banc.” Id. at 568. Judge Kozinski: “The sheer
ponderousness of the panel’s opinion — the mountain of verbiage it must deploy to explain
away these fourteen words of constitutional text — refutes its thesis far more convincingly
than anything I might say. The panel’s labored effort to smother the Second Amendment by
sheer body weight has all the grace of a sumo wrestler trying to kill a rattlesnake by sitting
on it — and is just as likely to succeed.” Id. at 570.).
37 478 F.3d 370 (D.C. Cir. 2007).
38 Id. at 373.
39 In making this finding, the court relied upon its prior holdings in Navegar, Inc. v. United
States, 103 F.3d 994 (D.C. Cir. 1997) and Seegars v. Gonzales, 396 F.3d 1248 (D.C. Cir.
2005). Based on those cases, the Parker court determined that the “plaintiffs were required
to show that the District had singled them out for prosecution,” as opposed to making a
showing of a general threat of prosecution stemming from a potential future violation of the
District’s gun control laws. Parker, 478 F.3d at 374. While noting that Supreme Court
(continued...)

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found to have standing due to the fact that he had applied for, and had been denied,
a license to possess a handgun. Based on this fact, the court determined that the
denial of a license “constitutes an injury independent of the District’s prospective
enforcement of its gun laws.”40 The court also allowed Heller’s claims challenging
22-4504 (prohibiting the carriage of a pistol without a license) and 7-2507.02
(requiring firearms to be kept unloaded and disassembled or bound by a trigger lock)
to stand, as the “would amount to further conditions on the [right] Heller desires.”41
Turning to its substantive consideration of the Second Amendment, the Parker
court engaged in a textual and historical analysis that largely mirrors the approach of
the Fifth Circuit in Emerson. The court placed particular importance on the words
“the drafters chose to describe the holders of the right-‘the people.’”42 Stating that
this phrase is “found in the First, Fourth, Ninth, and Tenth Amendments,” and that
“[i]t has never been doubted that these provisions were designed to protect the rights
of individuals,” the court stated its determination that it necessarily follows that the
Second Amendment likewise confers an individual right.43 The court also rejected the
contention that the prefatory clause of the Amendment qualified the effect of its
operative clause, on the basis of its characterization of the historical factors at play.
According to the court, early Congresses recognized that the militia existed
independently as all “able-bodied men of a certain age,” irrespective of any
governmental creation, but that it nonetheless required governmental organization to
be effective.44 This interpretation enabled the court to dispose of the District’s
argument that “a militia did not exist unless it was subject to state discipline and
leadership.”45 Specifically, by rejecting the notion that there is a state organization
requirement for the creation of a militia, the court was able to interpret the prefatory
clause as encompassing a broad swath of the populace, irrespective of a state’s right
to raise a collective protective force.46 The court concluded its analysis by stating:
“[t]he important point, of course, is that the popular nature of the militia is consistent
with an individual right to keep and bear arms: Preserving an individual right was the
best way to ensure that the militia could serve when called.”47
39 (...continued)
precedent generally allows for more relaxed standing requirements when faced with a “pre-
enforcement challenge to a criminal statute that allegedly threatened constitutional rights,”
the Parker court stated that it was nonetheless bound by its decisions in Navegar and
Seegars in the absence of an en banc decision overruling those cases. Parker, 478 F.3d at
374-75.
40 Id. at 376.
41 Id. at 376.
42 Id. at 381.
43 Id. at 381.
44 Id. at 387-88.
45 Id. at 386.
46 Id. at 389.
47 Id. at 389.

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The Parker court then addressed the argument that the District of Columbia is
not subject to the restraints of the Second Amendment because it is a purely federal
entity. This argument rests upon the supposition that since the District is not a state,
no federalism concerns are posed in the Second Amendment context since there is
no possibility that the exercise of legislative power would unconstitutionally impede
the organization of a state militia.48 The court rejected this argument, noting that “the
Supreme Court has unambiguously held that the Constitution and Bill of Rights are
in effect in the District,” and further referring to it as an “appendage of the collective
right position.”49
The final argument addressed by the court in Parker was the District’s
contention that “even if the Second Amendment protects an individual right and
applies to the District, it does not bar the District’s regulation, indeed, its virtual
prohibition, of handgun ownership.”50 Engaging in a historical analysis, the court
determined that long guns (such as muskets and rifles) and pistols were in “common
use” during the era in which the Second Amendment was adopted.51 While noting
that modern handguns, rifles and shotguns are “undoubtedly quite improved” over
their “colonial-era predecessors,” the court held that the “modern handgun” is a
“lineal descendant” of the pistols used in the founding-era, and that it accordingly
meets the standard delineated in Miller.52 The court went on to declare that “[p]istols
certainly bear ‘some reasonable relationship to the preservation or efficiency of a
well regulated militia.’”53 The court then rejected the argument that the Second
Amendment applies only to colonial era weapons, stating that “just as the First
Amendment free speech clause covers modern communication devices unknown to
the founding generation, e.g., radio and television, and the Fourth Amendment
protects telephonic conversation from a ‘search,’ the Second Amendment protects
the possession of the modern-day equivalents of the colonial pistol.”54
The court stressed that its conclusion on this point should not be taken to
suggest that “the government is absolutely barred from regulating the use and
ownership of pistols,” stating that the “protections of the Second Amendment are
subject to the same sort of reasonable restrictions that have been recognized as
limiting, for instance, the First Amendment.”55 The court stated that its holding did
not conflict with earlier Supreme Court determinations that laws prohibiting the
concealed carriage of weapons or depriving convicted felons of the right to keep and
48 Id. at 395.
49 Id. at 395.
50 Id. at 397.
51 Id. at 398.
52 Id. at 398.
53 Id. at 398.
54 Id. at 398.
55 Id. at 399.

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bear arms do not “offend the Second Amendment.”56 According to the court,
regulations of this type “promote the government’s interest in public safety consistent
with our common law tradition. Just as importantly, however, they do not impair the
core conduct upon which the right was premised.”57 The court went on to state that
other “[r]easonable regulations also might be thought consistent with a ‘well
regulated Militia,” including, but not necessarily limited to, the registration of
firearms (on the basis that it would give the government an idea of how many would
be armed for militia service if called upon), or reasonable firearm proficiency testing
(as this would promote public safety and produce better candidates for service).58
Applying these standards to the provisions of the D.C. Code at issue, the court
ruled that each challenged restriction violated the protections afforded by the Second
Amendment. With regard to § 7-2502.02 (prohibiting the registration of a pistol), the
court stated: “[o]nce it is determined-as we have done-that handguns are ‘Arms’
referred to in the Second Amendment, it is not open to the District to ban them.”59
Turning to § 22-4504 (prohibiting the carriage of a pistol without a license, inside or
outside the home), the court stated: “just as the District may not flatly ban the
keeping of a handgun in the home, obviously it may not prevent it from being moved
throughout one’s house. Such a restriction would negate the lawful use upon which
the right was premised-i.e, self-defense.”60 Finally, with regard to § 7-2507.02
(requiring that all lawfully owned firearms be kept unloaded and disassembled or
bound by a trigger lock or similar device), the court stated that this provision, “Like
the bar on carrying a pistol within the home, amounts to a complete prohibition on
the lawful use of handguns for self-defense. As such, we hold it unconstitutional.”61
In dissent, Judge Henderson argued that the majority opinion was dicta, as the
“meaning of the Second Amendment in the District of Columbia is purely academic”
since “the District of Columbia is not a state within the meaning of the Second
Amendment and therefore the Second Amendment’s reach does not extend to it.”62
In support of this conclusion, Judge Henderson argued that Miller should properly
be interpreted as conferring a right to keep and bear arms only in relation to
56 Id. at 399.
57 Id. at 399.
58 Id. at 399.
59 Id. at 400.
60 Id. at 400.
61 Id. at 401.
62 Id. at 402 (quoting Seegars v. Ashcroft, 297 F.Supp.2d 201, 239 (D.D.C. 2004), aff’d in
part, rev’d in part sub nom., Seegars v. Gonzalez, 396 F.3d 1248, reh’g en banc denied, 413
F.3d 1 (2005).

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CRS-12
preserving state militias.63 Judge Henderson went on to argue that the Supreme Court
and the D.C. Circuit both “have consistently held that several constitutional
provisions explicitly referring to citizens of ‘States’ do not apply to citizens of the
District.”64 While acknowledging that a determination as to whether the District
qualifies as a state under a certain constitutional provision is dependent on the
“character and aim of the specific provision involved,” Judge Henderson maintained
that the “Second Amendment’s ‘character and aim’ does not require [treatment of]
the District as a State,” as the “Amendment was drafted in response to the perceived
threat to the ‘free[dom]’ of the ‘State[s]’ posed by a national standing army
controlled by the federal government.”65 Accordingly, given that the District was
created as a federal entity by Congress, Judge Henderson argued that the District
“had-and has-no need to protect itself from the federal government,” thereby
rendering the Second Amendment inapplicable to the District.66
District of Columbia v. Heller
The District of Columbia filed a petition for certiorari with the Supreme Court
of the United States on September 4, 2007, requesting that it consider the question
of “[w]hether the Second Amendment forbids the District of Columbia from banning
private possession of handguns while allowing possession of rifles and shotguns.”67
On October 4, 2007, Heller, as the respondent, filed a brief with the Court in reply
to the District’s petition, urging it to address the question of “[w]hether the Second
Amendment guarantees law-abiding, adult individuals a right to keep ordinary,
functional firearms, including handguns, in their homes.”68 The Court granted the
petition for certiorari on November 20, 2007, limited to the question of “[w]hether
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?”69
Merits Briefs.
In its Petitioner’s Brief, the District argues that the Second Amendment protects
a right to keep and bear arms only in relation to service in a governmentally
63 Id. at 404.
64 Id. at 406.
65 Id. at 406 (citing Emerson, 270 F.3d at 237-40, 259; Silveira, 312 F.3d at 1076).
66 Id. at 406-07.
67 District of Columbia v. Heller, Petition for a Writ of Certiorari, No. 07-290 (September
4, 2007). [http://www.scotusblog.com/movabletype/archives/07-290_pet.pdf].
68 District of Columbia v. Heller, Brief in Response to Petition for a Writ of Certiorari, No.
07-290 (October 4, 2007). [http://www.scotusblog.com/movabletype/archives/07-290_
bir.pdf].
69 District of Columbia v. Heller, 128 S.Ct. 645, 169 L.Ed.2d 417, 76 USLW 3083
(November 20, 2007).

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CRS-13
organized militia.70 In particular, the District maintains that the “text and history of
the Second Amendment confirm that the right it protects is the right to keep and bear
arms as part of a well regulated militia, not to possess guns for private purposes...[it]
does not support respondent’s claim of entitlement to firearms for self defense.”71 In
support of this proposition, the District’s brief marshals detailed textual and historical
information in much the same manner as the Ninth Circuit’s opinion in Silveira.
The District’s second argument rests on the same assertion made by Judge
Henderson in her dissent in Parker; namely, that the Second Amendment does not
apply to laws that are limited to the District of Columbia. On this point, the District
maintains that “the Second Amendment was intended as a federalism protection to
prevent Congress, using its powers under the Militia Clauses from disarming state
militias. The Amendment ‘thus is a limitation only upon the power of Congress and
the National government’ and does not constrain states.”72 Elaborating on this
argument, the District asserts that “[l]aws limited to the District similarly raise no
federalism-type concerns, whether passed by Congress or the [D.C.] Council, and so
do not implicate the Second Amendment.”73
In another line of argument, the District maintains that even assuming the
existence of a private right to possess firearms, its regulation of handguns in the
challenged provisions should be upheld “for the independent reason that they
represent a permissible regulation of any asserted right.”74 In particular, the District
argues that its laws governing the possession of handguns should be upheld as a
reasonable measure aimed at “reduc[ing] the tragic harms” inflicted by such
weapons.75 In a related argument, the District maintains that the law requiring guns
to be kept unloaded and disassembled or bound by a trigger lock should be upheld
as a “reasonable regulation designed to prevent accidental and unnecessary shootings,
while preserving citizens’ ability to possess safely stored firearms.”76 The District
attempts to further buttress the reasonableness of this regulation by asserting that the
law contains an implicit self-defense exception from its requirements.
In the Respondent’s Brief, Heller argues that the Second Amendment plainly
protects an individual right to keep and bear arms, forwarding textual and historically
based arguments of the type that were found persuasive in Emerson and Parker.
Heller also maintains that the text of the Amendment does not support the conclusion
that its only purpose is to ensure the existence of a well regulated militia, in light of
historical evidence establishing the bearing of arms “often had purely civilian
70 District of Columbia v. Heller, Brief for Petitioners, No. 07-290 at 11 (January 4, 2008).
[http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-290_PetitionerFenty.pdf].
71 Id. at 11-12.
72 Id. at 35 (quoting Presser v. Illinois, 116 U.S. 252, 265 (1886)).
73 Id. at 35-36.
74 Id. at 40.
75 Id. at 41.
76 Id. at 55.

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CRS-14
connotations.”77 Heller additionally argues that a militia may be “well regulated”
without necessarily being subject to state control, both on the grounds that the term
encompasses concepts of proper discipline,78 and that there is a substantial history of
“extra-governmental militias” in the colonial era.79 Heller additionally argues that the
American revolt against Great Britain implicitly compels a conclusion that the
Second Amendment confers an individual right, as such an action “would not have
been possible without the private ownership of firearms.” Heller expands upon this
point, stating: “should our Nation someday suffer tyranny again, preservation of the
right to keep and bear arms would enhance the people’s ability to act as a militia in
the manner practiced by the Framers.”80
Heller proceeds to argue that the District’s effective ban on the possession of
handguns is unconstitutional, essentially mirroring the reasoning of the court in
Parker.81 Arguments similar to those found dispositive in Parker are likewise raised
with respect to the District’s prohibition on the carriage of handguns (as it relates to
movement within a home) and the requirement that firearms be kept unloaded and
disassembled or bound by a trigger lock.82
Heller maintains that the case before the Court does not require the application
of any standard of review, given that the provisions at issue involve a “ban on a class
of weapons protected” under the Constitution, and a “statutory interpretation dispute
concerning whether a particular provision enacts a functional firearm ban.”83 Heller
argues additionally however, that if the Court were to apply a standard of review to
laws that impact Second Amendment rights, the appropriate constitutional standard
would be strict scrutiny, requiring a court to strike down any law infringing upon the
Second Amendment unless it was narrowly tailored to serve a compelling
governmental interest.84
Amicus Curiae Brief for the United States.
The Solicitor General of the Department of Justice submitted an amicus
curia brief for the United States, requesting the Court to remand the case for further
consideration.85 In his brief, the Solicitor argues that while the court in Parker
77 District of Columbia v. Heller, Respondent’s Brief, No. 07-290 at 11 (February 4, 2008).
[http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-290_Respondent.pdf].
78 Id. at 17.
79 Id. at 27.
80 Id. at 32.
81 Id. at 41.
82 Id. at 52.
83 Id. at 55.
84 Id. at 54.
85 District of Columbia v. Heller, Brief for the United States as Amicus Curiae (January
2008). [http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-290_PetitionerAmCu

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CRS-15
correctly held that the Second Amendment protects an individual right, the court
nonetheless did not apply the correct standard for evaluating the Second Amendment
claim at issue. In particular, the Solicitor expressed concern that the test delineated
in Parker (namely that a weapon is protected under the Second Amendment if (1) it
bears a reasonable relationship to the preservation or efficiency of a well regulated
militia, and (2) is of the kind in common use at the time the Amendment was
adopted) was too categorical in its approach, and could call into question the validity
of long-standing federal firearm laws, such as restrictions on the possession of
machine guns.86 Instead, the Solicitor argues that “a more flexible standard of
review” is appropriate.87 To that end, the Solicitor proposes in his brief that a law that
impacts Second Amendment rights in a way that is not “ground[ed] in Framing-era
practice” should be subject to a heightened level of scrutiny that considers the
“practical impact of the challenged restriction on the plaintiff’s ability to possess
firearms for lawful purposes,” as well as “the strength of the government’s interest
in enforcement of the relevant restriction.”88 According to the Solicitor, under such
an “intermediate level of review, the ‘rigorousness’ of the inquiry depends on the
degree of the burden on protected conduct, and important regulatory interests are
typically sufficient to justify reasonable restrictions.”89 The Solicitor goes on to argue
that such a standard should be applied by the “lower courts in the first instance,” and
requests the Court to remand the case for further proceedings under this approach.90
Oral Argument.
The Supreme Court heard oral argument in Heller on March 18, 2008,
considering in detail many of the issues raised by the decision in Parker and the
briefs discussed above. Based on the questions and comments of the Justices, it
would appear that there is a substantial likelihood that the Court will hold that the
Second Amendment does in fact confer an individual right to keep and bear arms.91
In particular, Chief Justice Roberts and Justices Alito and Scalia all made statements
indicating that they support an individual rights interpretation. For instance,
responding to the petitioner’s assertion that the prefatory clause of the Amendment
confirms that the right is militia related, Chief Justice Roberts stated: “it’s certainly
an odd way in the Second Amendment to phrase the operative provision. If it is
limited to State militias, why would they say ‘the right of the people’? In other
85 (...continued)
USA.pdf].
86 Id. at 9.
87 Id. at 9.
88 Id. at 8.
89 Id. at 8.
90 Id. at 9-10.
91 See, Linda Greenhouse, New York Times, March 18, 2008 (“A majority of the Supreme
Court appeared ready...to embrace, for the first time in the country’s history, and
interpretation of the Second Amendment that protects the right to own a gun for personal
use.”). [http://www.nytimes.com/2008/03/18/washington/18cnd-scotus.html].

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CRS-16
words, why wouldn’t they say ‘State militias have the right to keep arms’?”92
Likewise, Justice Scalia declared:
I don’t see how there’s any, any, any contradiction between reading the second
clause as a — as a personal guarantee and reading the first one as assuring the
existence of a militia, not necessarily a State-managed militia because the militia
that resisted the British was not State- managed. But why isn’t it perfectly
plausible, indeed reasonable, to assume that since the framers knew that the way
militias were destroyed by tyrants in the past was not by passing a law against
militias, but by taking away the people’s weapons — that was the way militias
were destroyed. The two clauses go together beautifully: Since we need a militia,
the right of the people to keep and bear arms shall not be infringed.93
Additionally, Justice Kennedy indicated that he may be supportive of an
individual right interpretation, suggesting that the purpose of the prefatory clause was
to “reaffirm the right to have a militia,” with the operative clause establishing that
“there is a right to bear arms.”94 Justice Kennedy’s questioning further indicated that
he may view a right to self defense as being of a constitutional magnitude, suggesting
that the Framers may have also been attempting to ensure the ability “of the remote
settler to defend himself and his family against hostile Indian tribes and outlaws,
wolves and bears and grizzlies... .”95 While Justice Thomas remained silent during
the oral argument, he has made statements indicating support for an individual rights
interpretation of the Second Amendment in the past. Accordingly, while it is
impossible to predict with any degree of certainty how the Court will ultimately rule
in Heller, the factors mentioned above could be taken to indicate that at least a bare
majority of the Court supports the individual right model of the Second Amendment.
Analysis and Conclusion
While the oral argument in Heller could be taken to indicate majority support
for an individual rights interpretation, the Court could nonetheless accept the position
espoused by the District and the majority of circuit courts that have addressed the
scope of the Second Amendment; namely that “the people” have no constitutional
right to possess a firearm except in relation to service in a militia. The Court could
accomplish this by adopting the collective right model, which would presumably
result in the validation of the laws at issue (given that there would be no individual
right infringed thereby). Relatedly, the Court could adopt the sophisticated collective
right model, which would likewise presumably validate the laws in question, as there
is no indication that the firearms sought by Heller would be possessed in relation to
militia service.96
92 District of Columbia v. Heller, Transcript of Oral Argument at 4, No. 07-290 (March 18,
2008. [http://www.supremecourtus.gov/oral_arguments/argument_transcripts/07-290.pdf].
93 Id. at 7.
94 Id. at 5-6.
95 Id. at 8.
96 It is also conceivable that the Court could determine that the Second Amendment confers
(continued...)

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CRS-17
A determination by the Court that the Second Amendment confers an individual
right to keep and bear arms would obviously be significant from a constitutional and
historical perspective. However, the practical significance of such a decision in
Heller will depend largely upon the breadth of the Court’s holding. In the event that
the Court invalidates the laws at issue, it seems likely that the decision will be drafted
in a manner that is narrowly and specifically tailored to the District’s uniquely
restrictive firearm registration and possession regulations. This approach would
presumably leave lower courts with scant guidance on the proper standard to apply
in reviewing less restrictive gun control laws.97 Concordantly, it is unlikely that any
individual rights holding would be drafted so broadly as to implicate any existing
federal firearm laws. The Supreme Court and the appellate courts (including the Fifth
Circuit in Emerson) have affirmed the broad authority of Congress to regulate firearm
possession on numerous occasions, and there is little evidence to indicate that these
provisions would be found to be constitutionally problematic under any individual
right standard the Court might delineate.
In addition to the extensive scope of the gun control provisions that are at issue,
the unique constitutional status of the District itself will likely contribute to a
decision that leaves many open questions even if the Court affirms an individual right
interpretation. As noted above, the Supreme Court has held, over 100 years ago, that
the Second Amendment does not act as a constraint upon state law.98 Since that time,
the Supreme Court has held that most provisions of the Bill of Rights are applicable
to the states as well, via incorporation principles derived from the Fourteenth
Amendment. However, given that the Bill of Rights applies directly to the District,
it seems likely that any individual right holding by the Court will leave unaddressed
the issue of whether modern incorporation principles apply to the Second
Amendment.99
Ultimately, irrespective of the interpretation of the Second Amendment that is
delineated in Heller, it seems evident that issues relating to the possession and
control of firearms will continue to raise significant questions of a constitutional
magnitude for the foreseeable future.
96 (...continued)
an individual right, but nonetheless deem the laws in question to be valid. Such an outcome
would depend on the Court construing any individual right as being subject only to rational
basis review, and subsequently determining that the District’s regulation of handguns is
legitimately related to ensuring public safety. See, e.g., Heller v. Doe, 509 U.S. 320 (1993),
for an overview of the standards governing rational basis review. This approach might
garner the vote of Justice Breyer, who indicated a potential willingness at oral argument to
support an individual rights interpretation so long as a ban on handguns in areas afflicted
by high crime rate was deemed constitutional. See oral argument at 50-52.
97 See Nelson Lund, “The Second Amendment Comes Before the Supreme Court: The Issues
and the Arguments,” Web Memo No. 1851, The Heritage Foundation, March 14, 2008.
98 See n.13 and accompanying text, supra.
99 It is of course possible that the Court will hold that the Parker court was incorrect in
determining that Heller had standing to challenge the provisions at issue, or that the Second
Amendment is simply not applicable to the District. Either finding would enable the Court
to avoid passing on the nature of the right conferred by the Amendment. The Justices raised
neither issue at oral argument, however, indicating that the Court will address the
constitutional question before it.

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