District of Columbia v. Heller

The Second Amendment directs, "A well regulated Militia, being necessary to the security of a free State , the right of the people to keep and bear Arms, shall not be infringed." The Supreme Court has never decided whether the right to "keep and bear arms" is an individual right or a right conferred only upon members of a militia.

The Implications of United States v. Miller

The Court last addressed the Second Amendment in 1939, in United States. v. Miller. The Miller Court held:

[i]n the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

Under Miller, when considering whether there is a right to bear a gun, the court should first determine if the weapon "has some reasonable relationship to the preservation or efficiency of a well regulated militia," and next whether it is "of the kind in common use" at the time of the American Revolutionary War.

The Miller Court further held that the National Firearms Act of 1934, which required that certain types of firearms be registered with the Tax Unit (now the Bureau of Alcohol, Tobacco, Firearms and Explosives), was not a violation of the Second Amendment. Since Miller, several state courts have validated state authorized restrictions on firearms so long as the restrictions are reasonable.

At the center of this case lies the debate whether the Second Amendment confers an individual right to bear arms for personal use or if the right is dependant upon an individual's association with an organized military force like the National Guard. The District argues that the right to bear arms is dependant upon association with a "well regulated militia" and does not confer the right "to possess guns for private purposes." Heller argues that the D.C. Circuit Court of Appeals was correct in finding that the phrase "right of the people" in the Second Amendment confers an individual right, as opposed to a collective right bestowed upon a group or militia.

The Interaction of Two Clauses of the Second Amendment

The Second Amendment contains two clauses. The first states "A well regulated Militia, being necessary to the security of a free State ," and the second clause states "the right of the people to keep and bear Arms, shall not be infringed." The parties differ in their interpretation of how the introductory first clause impacts the rights granted in the second clause.

The District, while maintaining that the plain language of both clauses grants a right to bear arms only to those associated with a militia, argues that the lower court's construction "read the opening clause out of the Amendment" by recognizing a right to gun ownership for private use. The District argues that this interpretation of the Amendment contravenes the presumption that each clause in the Constitutional is meant to have effect.

Heller argues that the first clause is simply a preamble or statement of purpose, but that Congress did not intend it to restrict the rights granted in the second clause. Heller contends that the second, or in his terms, the "operative rights-securing clause," is "grammatically and logically independent of the preamble." Thus, it would contravene long-standing rules of construction for the Court to interpret the preamble in such a way as to restrict the rights granted in the operative text.

The definition of "Militia" and "Bear Arms"

The District contends that both clauses of the Second Amendment, read separately or together, indicate that it only confers a right to bear arms on those associated with a militia. The District argues that the use of "militia" in the opening clause restricts the right to bear arms only for military purposes and that this interpretation coincides with the Militia Clause within Article I, Section 8 of the U.S. Constitution. The Militia Clause authorizes Congress

[t]o provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.

Further, the District believes the term, '"well regulated" in the Second Amendment underscore[s] that the "Militia" contemplated by the Framers were organized and trained fighting forces." The District reads the Militia Clause and Second Amendment to require militia members to undergo "military exercises and evolutions before acquiring the degree of perfection which would entitle them to the character of a well-regulated militia."

Heller believes the use of "militia" in the Second Amendment advances the individual right to bear arms. He cites references in the Federalist Papers and in news articles from the Revolutionary War era which use the term militia to describe the general free male populace of the colonies, all of whom were able to bear arms and resist the British government. Heller argues the composition of the militia was thus broader than that in England and the right to bear arms correspondingly broad.

Heller argues that today Congress continues to define militia broadly as " comprising all able-bodied males from 17 to 45, who are or intend to become citizens; and members of the National Guard up to age 64," to advance the idea that the militia need not be exclusively comprised of members currently in the National Guard. Heller contends that for this broadly defined militia to be effective, the ordinary people must possess and be proficient in the use of their private arms. Unlike the District, Heller believes the term, "well regulated," only evokes discipline and training amongst militia members, not the invocation of state control.

The parties also offer differing interpretations of the phrase "bear arms" which support their respective positions on the meaning of militia in the Second Amendment. The District interprets the phrase, "bear arms," as the right to bear military weapons, restricted to members of the militia using guns in a military context. The District tried to associate the word, "keep" with the term, "keep up," a term used in phrases such as "keep up a standing army." The D.C. Circuit disagreed with this argument because it "mocks usage, syntax, and common sense."

Heller believes the term "bear arms" equates to an individual right to "carry" and "possess" arms in one's home. Heller supports this argument by citing several state constitutions and legislative texts where the phrase, "bear arms" confers an individual right. Heller also relies heavily upon a hunting bill drafted by Thomas Jefferson and introduced by James Madison in 1785 before the Virginia legislature. The bill contains the phrase, "the recognizance he shall bear a gun.," and Heller believes this indicates that the term "bear arms" can confer a personal right to bear arms outside a military setting.

The Level of Review: Strict Scrutiny or Rational Basis Review

The Supreme Court may choose to address the appropriate level of judicial review for Second Amendment cases. Heller believes that because this case is based on statutory interpretation, the Court need not determine the level of review. However, he argues that if the Court chooses to entertain the issue, laws impacting Second Amendment rights should be subject to strict scrutiny because the right to bear arms is a fundamental right that should only be infringed by a compelling government interest. The District contends that the Second Amendment gives state and local government the ability to regulate guns, and that this ability is essential to their ability to address the increased threat posed by gun. Therefore, the District argues gun regulations should be subject to a reasonableness review, which looks at the legislature's "actual reasons" for enacting the law.

The District and the Second Amendment

The District argues that the Second Amendment does not apply to laws limited to the District with the same force as it would in one of the fifty states. It contends that Congress passed the Second Amendment to protect the states from federal actions to disarm their militias. Thus, even if the Court finds that there is an individual right to firearms, that right is only protected to the extent federal legislation interferes with the effectiveness of state militias.

Further, the District argues that the Second Amendment does not constrain the ability of the states to regulate firearms. The District concludes that the Second Amendment should not operate to constrain the its power to regulate firearms because first, legislation limited to the District does not implicate the federalism concerns that motivated the passage of the Second Amendment, and second, because it is unreasonable to think the Framers "intended Congress to be more constrained in the seat of federal power than a state would be in it's own territory."

Heller argues that the government of the nation's capitol must obey the Constitution and the Bill of Rights because these texts are the supreme law of the land. He argues that "Congress can exercise general police powers within the District, 'so long as it does not contravene any provisions of the Constitution of the United States .'" More specifically, Heller believes that the District is not a "'Forbidden City' in which federal officials would be shielded from the hazards of interaction with the otherwise-free people of the United States ." Therefore, D.C. can create reasonable regulations so long as those regulations do not infringe upon constitutionally guaranteed rights. Here, Heller believes the three D.C. statutes at question are complete constraints on the right to bear arms and therefore are unconstitutional.

The D.C. Court of Appeals in this case relied upon the Supreme Court's decision in O'Donoghue v. United States, determining that the Constitution and Bill of Rights are fully in effect in the District. The appellate court further held that the District could formulate reasonable gun restrictions since the District is subject to the provisions within the Constitution and Bill of Rights, but that the restrictions in this case were unreasonable because they banned the use of handguns, arms protected by the Second Amendment.