District of Columbia v. Heller: The Supreme Court and the Second Amendment
Order Code RL34446
District of Columbia v. Heller:
The Supreme Court and the Second Amendment
Updated September 5, 2008
T. J. Halstead
Legislative Attorney
American Law Division
District of Columbia v. Heller:
The Supreme Court and the Second Amendment
Summary
In District of Columbia v. Heller, the Supreme Court of the United States ruled
in a 5-4 decision that the Second Amendment to the Constitution of the United States
protects an individual right to possess a firearm, irrespective of service in a militia,
and to use that arm for traditionally lawful purposes such as self-defense within the
home. The decision in Heller affirmed the holding in Parker v. District of Columbia,
wherein the Court of Appeals for the District of Columbia declared three provisions
of the District’s Firearms Control Regulation Act to be unconstitutional: D.C. Code
§ 7-2502.02, which generally barred the registration of handguns; § 22-4504, which
prohibited 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 required that all lawfully owned firearms be kept unloaded and
disassembled or bound by a trigger lock or similar device.
Addressing the holding in Parker, the Supreme Court noted that the District’s
approach “totally bans handgun possession in the home.” The Court then declared
that the inherent right of self-defense is central to the Second Amendment right, and
that the District’s handgun ban amounted to a prohibition of an entire class of arms
that has been overwhelmingly utilized by American society for that purpose. The
Court also struck down as unconstitutional the requirement that any lawful firearm
in the home be disassembled or bound by a trigger lock, as such a requirement
“makes it impossible for citizens to use arms for the core lawful purpose of
self-defense.”
This report provides an overview of judicial treatment of the Second
Amendment over the past 70 years, with a focus on the Court’s decision in Heller.
Additionally, this report provides an analysis of the D.C. Council’s response to the
holding in Heller, legislative responses thereto, and a consideration of the
implications of the Court’s holding for firearm legislation at the federal, state, and
local level.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Second Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Parker v. District of Columbia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
District of Columbia v. Heller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Merits Briefs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Amicus Curiae Brief for the United States . . . . . . . . . . . . . . . . . . . . . 15
Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
The Decision in Heller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Legislative Reaction to Heller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Analysis and Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
District of Columbia v. Heller:
The Supreme Court and the
Second Amendment
Introduction
In District of Columbia v. Heller, the Supreme Court of the United States held,
in a 5-4 decision, that the Second Amendment to the Constitution of the United
States protects an individual right to possess a firearm, irrespective of service in a
militia, and to use that arm for traditionally lawful purposes such as self-defense
within the home.1 The decision in Heller affirmed the holding in Parker v. District
of Columbia, wherein the Court of Appeals for the District of Columbia declared
three provisions of the District’s Firearms Control Regulation Act to be
unconstitutional: D.C. Code § 7-2502.02, which generally barred the registration of
handguns; § 22-4504, which prohibited 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 required that all lawfully
owned firearms be kept unloaded and disassembled or bound by a trigger lock or
similar device.
Addressing the holding in Parker, the Supreme Court noted that the District’s
approach “totally bans handgun possession in the home.” The Court then declared
that the inherent right of self-defense is central to the Second Amendment right, and
that the District’s handgun ban amounted to a prohibition of an entire class of arms
that has been overwhelmingly utilized by American society for that purpose. The
Court also struck down as unconstitutional the requirement that any lawful firearm
in the home be disassembled or bound by a trigger lock, as such a requirement
“makes it impossible for citizens to use arms for the core lawful purpose of
self-defense.”
The decision in Heller marks the first time in almost 70 years that the Supreme
Court has addressed the nature of the right conferred by the Second Amendment, and
its disposition of the case carries significant, if yet undefined, consequences for future
judicial and legislative consideration of this constitutional provision. Accordingly,
this report provides a historical overview of judicial treatment of the Second
Amendment, with a focus on the potential impact of the Court’s decision on
legislation pertaining to the use and possession of firearms at the federal, state, and
local level.
1 128 S.Ct. 2783 (2008).
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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,” 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
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).
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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 gave effect to each of these interpretive models, contributing to the
uncertainty that characterized the debate over the meaning of the Second Amendment
prior to the Court’s decision in Heller.
The Second Amendment in Federal Court
Despite the heated debate regarding the meaning of the Second Amendment, the
Supreme Court had decided only one case touching on its scope prior to the decision
in Heller. That case, United States v. Miller, considered the validity of a provision
of the National Firearms Act in relation to the Second Amendment.7 An interesting
aspect of the decision in Miller, as is illustrated by subsequent lower court decisions
discussed below, is that it was 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
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.
7 307 U.S. 174 (1939).
8 Id. at 179.
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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.
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
9 Id. at 178.
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).
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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
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 changed with 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
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.
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.
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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
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
23 Id. at 260.
24 Id. at 227.
25 Id. at 260.
26 Id. at 261.
27 Id. at 264-65.
28 Id. at 272 (Parker, J., special concurrence).
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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
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
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).
30 Silveira, 312 F.3d at 1063.
31 Id. at 1064.
32 Id. at 1066.
33 Id. at 1086.
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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
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
34 Id. at 1087.
35 Id. at 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
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).
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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
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 they “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
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
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.
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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
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
44 Id. at 387-88.
45 Id. at 386.
46 Id. at 389.
47 Id. at 389.
48 Id. at 395.
49 Id. at 395.
50 Id. at 397.
51 Id. at 398.
52 Id. at 398.
53 Id. at 398.
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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
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, turning to § 7-2507.02, which
required that all lawfully owned firearms be kept unloaded and disassembled or
bound by a trigger lock or similar device, the court stated: “like the bar on carrying
a pistol within the home, [this provision] 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”
54 Id. at 398.
55 Id. at 399.
56 Id. at 399.
57 Id. at 399.
58 Id. at 399.
59 Id. at 400.
60 Id. at 400.
61 Id. at 401.
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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
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
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).
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].
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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 argued that the Second Amendment protects
a right to keep and bear arms only in relation to service in a governmentally
organized militia.70 In particular, the District maintained 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 marshaled detailed textual and
historical information in much the same manner as the Ninth Circuit’s opinion in
Silveira.
The District’s second argument rested 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
maintained 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 asserted 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 maintained 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
argued 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 maintained 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,
69 District of Columbia v. Heller, 128 S.Ct. 645, 169 L.Ed.2d 417, 76 USLW 3083
(November 20, 2007).
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.
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while preserving citizens’ ability to possess safely stored firearms.”76 The District
attempted to further buttress the reasonableness of this regulation by asserting that
the law contained an implicit self-defense exception from its requirements.
In the Respondent’s Brief, Heller argued 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 maintained 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 connotations.”77 Heller additionally argued 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
argued 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 expanded 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 proceeded 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 were 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 maintained that the case before the Court did not require the application
of any standard of review, given that the provisions at issue involved 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 argued 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
76 Id. at 55.
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.
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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 argued that while the court in Parker
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 argued that “a more flexible standard of
review” is appropriate.87 To that end, the Solicitor proposed 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 went 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 was
widely assumed that the Court would hold that the Second Amendment does in fact
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
USA.pdf].
86 Id. at 9.
87 Id. at 9.
88 Id. at 8.
89 Id. at 8.
90 Id. at 9-10.
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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 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 would support 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 had made statements indicating support for an individual rights
interpretation of the Second Amendment in the past.
The Decision in Heller.
On June 26, 2008, the Supreme Court issued its decision in Heller, holding by
a vote of 5-4 that the Second Amendment protects an individual right to possess a
firearm, irrespective of service in a militia, and to use that arm for traditionally lawful
purposes such as self-defense within the home.96 The opinion engages in an extensive
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].
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.
96 128 S.Ct. 2783 (2008). The majority opinion was authored by Justice Scalia, and was
(continued...)
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analysis of the text of the Second Amendment. Focusing first on the operative clause
of the Amendment (“the right of the people to keep and bear Arms, shall not be
infringed”), the Court found that the textual elements of this clause and the historical
background of the Amendment “guarantee the individual right to possess and carry
weapons in case of confrontation.”97
With regard to the prefatory clause (“A well regulated Militia, being necessary
to the security of a free State,”), the Court held that the term “militia” refers to all
able-bodied men, as opposed to state and congressionally-regulated military forces
described in the Militia Clauses of the Constitution. The Court further held that “the
adjective ‘well-regulated’ implies nothing more than imposition of proper discipline
and training,” and that the phrase “security of a free state” refers to the security of a
free polity as opposed to the security of each of the several states.98
The Court then addressed the question of whether the prefatory clause “fits”
with an operative clause that “creates an individual right to keep and bear arms,”
declaring that it “fits perfectly” when viewed in light of the historical backdrop that
motivated adoption of the Second Amendment.99 In particular, the Court pointed to
the concern that the federal government would disarm the people in order to disable
the citizens’ militia, enabling a politicized standing army or a select militia to rule.
According to the Court, the Amendment was thus designed to prevent Congress from
abridging the “ancient right of individuals to keep and bear arms, so that the ideal of
a citizens’ militia would be preserved.”100
After reaching this conclusion, the Court engaged in an analysis of its prior
decisions relating to the Second Amendment, in order to ascertain “whether any of
[its] prior precedents foreclose[] the conclusions [it] reached about the meaning of
the Second Amendment.” The Court first considered the ruling in United States v.
Cruikshank, which held that the Second Amendment does not by its own force apply
to anyone other than the federal government. Based on this determination, the
Cruikshank Court vacated the convictions of a white mob for depriving blacks of
their right to keep and bear arms. Implicitly contravening the interpretation of this
case in lower court decisions such as Cases,101 the Court stated that the decision in
Cruikshank did not involve a claim that the victims had been deprived of their right
to carry arms in a milita; instead, the Court stressed that the decision in Cruikshank
described the right protected by the Second Amendment as the “bearing [of] arms for
a lawful purpose,” that must be guarded by a state’s police power. According to the
96 (...continued)
joined by Roberts, C.J., and Kennedy, Thomas, and Alito, JJ. Justice Stevens filed a
dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined. Justice Breyer filed
another dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined.
97 Id. at 2797.
98 Id. at 2800-01.
99 Id. at 2801.
100 Id. at 2786.
101 See n.13-14 and accompanying text, supra.
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Court in Heller, “that discussion makes little sense if it is only a right to bear arms
in a state militia.”
The Court then turned to its prior ruling in Presser v. Illinois, which held that
the right to keep and bear arms was not violated by a law that prohibited groups of
men from associating together as military organizations and from drilling or parading
with arms in cities and towns unless authorized by law.102 The Heller Court stated
that this holding “does not refute the individual-rights interpretation of the
Amendment,” and has no bearing on “the Second Amendment’s meaning or scope,
beyond the fact that it does not prevent the prohibition of private paramilitary
organizations.”103
Regarding the holding in United States v. Miller, the Heller Court rejected the
assertion that the decision in that case established that “the Second Amendment
‘protects the right to keep and bear arms for certain military purposes, but...does not
curtail the legislature’s power to regulate the nonmilitary use and ownership of
weapons.’”104 The Court declared that “Miller did not hold that and cannot be
possibly read to have held that,” given that the decision in Miller was predicated on
the determination that “the type of weapon at issue was not eligible for Second
Amendment Protection.”105 According the to the Heller Court, the holding in Miller
“is not only consistent with, but positively suggests, that the Second Amendment
confers an individual right to keep and bear arms.”106 The Court went on to note that
“[h]ad the [Miller] Court believed that the Second Amendment protects only those
serving in the militia, it would have been odd to examine the character of the weapon
rather than simply note that the two crooks were not militiamen.”107 The Court
concluded its consideration of this issue by stating that “Miller stands only for the
proposition the Second Amendment right, whatever its nature, extends only to certain
types of weapons.”108
Having determined that the Second Amendment confers an individual right, the
Court stressed that “like most rights, the right secured by the Second Amendment is
not unlimited.”109 The Court noted that the right at issue had never been construed
as allowing individuals “to keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose,” and the “majority of the 19th-century courts
to consider the question held that prohibitions on carrying concealed weapons were
102 116 U.S. 252, 264-65 (1886).
103 Heller, 128 S.Ct. at 2813.
104 128 S.Ct. at 2814 (quoting Stevens, J., dissenting).
105 Id. at 2814 (emphasis in original).
106 Id. at 2814.
107 Id. at 2814.
108 Id. at 2814.
109 Id. at 2816.
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lawful under the Second Amendment or state analogues.”110 Moreover, the Court’s
opinion appears to indicate that current federal firearm laws are constitutionally
tenable:
[N]othing in our opinion should be taken to cast doubt on longstanding
prohibitions on the possession of firearms by felons and the mentally ill, or laws
forbidding the carrying of firearms in sensitive places such as schools and
government buildings, or laws imposing conditions and qualifications on the
commercial sale of arms. [fn 26: We identify these presumptively lawful
regulatory measures only as examples; our list does not purport to be
exhaustive.]111
The Court further stressed:
We also recognize another important limitation on the right to keep and carry
arms. Miller said, as we have explained, that the sorts of weapons protected were
those “in common use at the time.” 307 U. S., at 179. We think that limitation is
fairly supported by the historical tradition of prohibiting the carrying of
“dangerous and unusual weapons.” [citations omitted]112
The decision in Heller affirmed the holding in Parker v. District of Columbia,113
wherein the Court of Appeals for the District of Columbia considered the
constitutionality of three provisions of the District’s Firearms Control Regulation
Act: D.C. Code § 7-2502.02, which generally barred the registration of handguns; §
22-4504, which prohibited 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 required that all lawfully owned
firearms be kept unloaded and disassembled or bound by a trigger lock or similar
device.
Applying a Second Amendment analysis that was co-extensive to that of the
Court’s eventual holding, the D.C. Circuit ruled that each challenged restriction
110 Id. at 2816.
111 Id. at 2817.
112 Id. at 2817. The Court’s opinion indicates that current federal restrictions on the
ownership of fully automatic weapons are constitutionally valid: “it may be objected that
if weapons that are most useful in military service-M-16 rifles and the like-may be banned,
then the Second Amendment right is completely detached from the prefatory clause. But as
we have said, the conception of the militia at the time of the Second Amendment’s
ratification was the body of all citizens capable of military service, who would bring the
sorts of lawful weapons that they possessed at home to militia duty.” Id. at 2817. It is
interesting to note that the Court’s analysis on this point does not give any consideration to
the constitutional implications of the role that longstanding, legislatively imposed
restrictions may play in preventing certain types of weapons from being “typically possessed
by law-abiding citizens” or from coming into “common use.”
113 478 F.3d 370 (D.C. Cir. 2007).
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violated the protections afforded by the Second Amendment.114 Addressing this
holding in Parker, the Supreme Court noted in Heller that the District’s approach
“totally bans handgun possession in the home.”115 The Court then declared that the
inherent right of self-defense is central to the Second Amendment right, and that the
District’s handgun ban amounted to a prohibition of an entire class of arms that has
been overwhelmingly utilized by American society for that purpose.116 It is
significant to note that the Court did not specify a governing standard of review for
Second Amendment issues, stating instead that the District’s handgun ban is violative
of “any of the standards of scrutiny that the we have applied to enumerated
constitutional rights.”117 The Court also struck down as unconstitutional the
requirement that any lawful firearm in the home be disassembled or bound by a
trigger lock, as such a requirement “makes it impossible for citizens to use arms for
the core lawful purpose of self-defense.”118 The Court’s opinion did not address the
District’s licensing requirement (§ 22-4504), noting that Heller had conceded that
such a requirement would be permissible if enforced in a manner that is not arbitrary
and capricious.119
Legislative Reaction to Heller.
Subsequent to the Court’s decision, the D.C. Council passed, and Mayor Fenty
signed into law, the Firearms Emergency Amendment Act of 2008. The act amended
D.C. Code § 7.2502.02 to waive the District’s general prohibition on the registration
of a pistol with respect to “[a]ny person who seeks to register a pistol for use in self-
defense within that person’s home.” The act further amended the D.C. Code to
provide that “[n]otwithstanding any other law, a person holding a valid license for
a pistol...shall not be required to obtain a license to carry the pistol within that
person’s home.” The act also amended D.C. Code § 7-2502.03, to establish that the
Chief of Police “shall require any registered pistol to be submitted for a ballistics
identification procedure and shall establish a fee for such procedure,” and to provide
that the Chief of Police “shall register no more than one pistol per registrant during
the first 90 days after the effective date” of the act (as passed on July 15, 2008).
Finally, the act amended D.C. Code § 7-2507.02 to provide, in pertinent part, that
“[e]ach registrant shall keep any firearm in his or her possession unloaded and either
disassembled or secured by a trigger lock, gun safe, or similar device,” except with
114 See n.59-61 and accompanying text, supra.
115 Heller, 128 S.Ct. at 2817.
116 Id. at 2817-18. Earlier in its opinion, the Court stated: “[s]ome have made the argument,
bordering on the frivolous, that only those arms in existence in the 18th century are
protected by the Second Amendment. We do not interpret constitutional rights that way. Just
as the First Amendment protects modern forms of communications, e.g., Reno v. American
Civil Liberties Union, 521 U.S. 844, 849 (1997), and the Fourth Amendment applies to
modern forms of search, e.g., Kyllo v. United States, 533 U.S. 27, 35-36 (2001), the Second
Amendment extends, prima facie, to all instruments that constitute bearable arms, even those
that were not in existence at the time of the founding.” Id. at 2791.
117 Id. at 2817.
118 Id. at 2818.
119 Id. at 2819.
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regard to “[a] firearm while it is being used to protect against a reasonable perceived
threat of immediate harm to a person within the registrant’s home....” The act states
that its provisions will remain in effect for no longer than 90 days, and it has been
reported that the D.C. Council plans to begin work on permanent legislation in
September.120
On July 28, 2008, three plaintiffs (including Dick Heller) filed a lawsuit alleging
that the act is not in compliance with the Court’s decision in Heller.121 The suit
alleges that the District’s preexisting prohibition on the registration of a “Machine
gun” is problematic, given that the D.C. Code defines a “Machine gun” as including
any firearm “which shoots, is designed to shoot, or can be readily converted or
restored to shoot...[s]emiautomatically, more than 12 shots without manual
reloading.”122 This definition effectively limits the universe of handguns that may be
registered under the act to revolvers (as opposed to semiautomatic handguns). The
suit alleges that semiautomatic handguns are among the “arms” that Americans have
chosen to use for self-defense, and that the possession of these firearms is thus
protected by the Second Amendment in light of the Court’s analysis in Heller. The
suit also alleges that the imposition of any fee associated with the “ballistics
identification procedure” required by the act would impermissibly interfere with the
exercise of a fundamental constitutional right. Finally, the suit challenges the act’s
requirement that a registrant keep any firearm in his possession unloaded and either
bound by a trigger lock, gun safe, or similar device except “while it is being used to
protect against a reasonably perceived threat of immediate harm to a person within
the registrant’s home....” In particular, the suit alleges that this requirement prohibits
a person from keeping a functional firearm for use in immediate self-defense, thereby
violating the strictures delineated in Heller.
On July 31, 2008, Representative Travis Childers introduced H.R. 6691, the
Second Amendment Enforcement Act.123 This bill does not specifically address, or
limit itself only to consideration of, the changes made by the D.C. Council in the
Firearms Emergency Amendment Act of 2008. Instead, it appears that H.R. 6691
would effectively repeal the registration scheme and related limitations on firearm
possession that are required under D.C. law.124 A largely identical bill, H.R. 1399, the
120 See Brian Westley, “Lawsuit Filed Against New D.C. Gun Regulations,” USA Today,
July 28, 2008. Available at [http://www.usatoday.com/money/economy/2008-07-28-
4254021157_x.htm].
121 Id. The National Rifle Association has also filed lawsuits against other cities, such as
Chicago, and suburbs thereof, that have instituted bans on handgun possession. The Chicago
suburb of Williamette, Illinois has reportedly suspended enforcement of its handgun ban as
a result of the decision in Heller.
122 D.C. Code § 7-2501.01(10).
123 H.R. 6691, 110th Cong., 2d Sess. (2008).
124 While the changes made by the Firearms Emergency Amendment Act of 2008 are only
in effect for a period of 90 days from the date of enactment, the effect of the amendments
to the D.C. Code that would be made by H.R. 6691 would be the same irrespective of
whether it passed before or after the expiration of this time period.
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District of Columbia Personal Protection Act, was previously introduced on March
8, 2007, by Representative Ross.125
Analysis and Conclusion
The decision in Heller marks the first time in almost 70 years that the Supreme
Court has addressed the nature of the right conferred by the Second Amendment, and
its disposition of the case carries significant, if yet undefined, consequences for future
judicial and legislative consideration of this constitutional provision. As noted by the
Court itself, the decision in Heller does not constitute “an exhaustive historical
analysis...of the full scope of the Second Amendment.”126 Indeed, while the Court’s
opinion is extremely important simply by virtue of its determination that the Second
Amendment protects an individual right to possess a firearm, it leaves unanswered
a host of questions of significant constitutional magnitude.
One such question centers on the standard of scrutiny that should be applied to
laws regulating the possession and use of firearms. In Heller, the Court refused to
establish or identify any such standard, declaring that the challenged provisions were
unconstitutional “[u]nder any of the standards of scrutiny that we have applied to
enumerated constitutional rights.”127 The Court did reject a test grounded in rational
basis scrutiny, stating that “if all that was required to overcome the right to keep and
bear arms was a rational basis, the Second Amendment would be redundant with the
separate constitutional prohibitions on irrational laws, and would have no effect.”128
The Court also explicitly rejected Justice Breyer’s argument, raised in his dissent,
that an “interest-balancing inquiry” that “asks whether the statute burdens a protected
interest in a way or to an extent that is out of proportion to the statute’s salutary
effects upon other important governmental interests” should be applied.129
Responding to this suggestion, the Court stated:
We know of no other enumerated constitutional right whose core protection
has been subjected to a freestanding “interest-balancing” approach. The
very enumeration of the right takes out of the hands of government — even
the Third Branch of Government — the power to decide on a case-by-case
basis whether the right is really worth insisting upon. A constitutional
guarantee subject to future judges’ assessments of its usefulness is no
constitutional guarantee at all.130
Finally, the Court acknowledged the criticism that its ruling leaves “so many
applications of the right to keep and bear arms in doubt,” and that it does “not
125 H.R. 1399, 110th Cong., 1st Sess. (2007). The provisions of H.R. 1399 are essentially
identical to those of H.R. 6691, with the exception of the content of § 6 and § 9 of the
respective bills and § 10 of H.R. 6691.
126 Heller, 128 S.Ct. at 2816.
127 Id. at 2817.
128 Id. at 2817, n.27.
129 Id. at 2821 (quoting Breyer, J., dissenting).
130 Id. at 2821.
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provid[e] extensive historical justification for those regulations of the right” that the
Court described as constitutionally permissible.131 In response, the Court explained:
[S]ince this case represents this Court’s first in-depth examination of the
Second Amendment, one should not expect it to clarify the entire field, any
more than Reynolds v. United States, 98 U.S. 145 (1879), our first in-depth
Free Exercise Clause case, left that area in a state of utter certainty. And
there will be time enough to expound upon the historical justifications for
the exceptions we have mentioned if and when those exceptions come
before us.132
Another issue left unresolved by the Court is whether the Second Amendment
applies to the states. 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.133 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, the Court left unaddressed the issue of whether modern incorporation
principles apply to the Second Amendment. In a footnote to its consideration of the
prior holdings in Cruikshank, Presser, and Miller, the Court stated, “[w]ith respect
to Cruikshank’s continuing validity on incorporation, a question not presented by this
case, we note that Cruikshank also said that the First Amendment did not apply
against the States and did not engage in the sort of Fourteenth Amendment inquiry
required by our later cases.”134 This statement could be interpreted as indicating that
the Court would support the application of modern incorporation doctrine principles
to the Second Amendment. However, in the next sentence, the Court stated: “[o]ur
later decisions in Presser v. Illinois, 116 U.S. 252, 265 (1886) and Miller v. Texas,
153 U.S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the
Federal Government.”135 While this observation could be construed in a neutral
manner, or as implying that these holdings are similarly outdated in light of current
standards governing incorporation, it could be viewed conversely as indicating that
the Court might not support a determination that the Second Amendment applies
below the federal level.
Ultimately, while the decision in Heller has settled, from a legal perspective,
the fundamental constitutional question of the nature of the right protected by the
Second Amendment, 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.
131 Id. at 2821 (quoting Breyer, J., dissenting).
132 Id. at 2821.
133 See n.12-13 and accompanying text, supra.
134 Heller, 128 S.Ct. at 2813, n.23.
135 Id.