D.C. vs.

Heller
The Supreme Court Gun Control Case

Media Briefing Book

Heller - Media Briefing Book

Introduction ..................................................................................................................... 2 What is the "Heller" case?............................................................................................... 2 Background on the conflict ........................................................................................... 2 When is the case being heard?.................................................................................... 3 Why did the Supreme Court agree to hear the case? .................................................. 3 What is the question the Supreme Court is asking?........................................................ 3 What are the D.C. laws in question? ............................................................................ 4 What are the competing theories about the Second Amendment? ................................. 4 What do constitutional scholars say about these differing theories? ............................ 5 How did the individual rights theory obtain the alternate name of the "standard model"? ........................................................................................................................ 7 What is the historical origin of the Second Amendment? ................................................ 7 What were the "keep and bear arms" clauses suggested by the states? ..................... 8 What were the different drafts of the Second Amendment? ......................................... 9 Were any additions suggested to the Second Amendment during congressional debate? ...................................................................................................................... 10 Doesn't the word "state" define the Second Amendment as a government power?... 10 What has the Supreme Court previously said about the Second Amendment? ............ 11 U.S. v. Cruikshank (1876): ......................................................................................... 11 U.S. v. Miller (1939):................................................................................................... 11 U.S. v Emerson (2001)............................................................................................... 12 Common questions about the Heller case..................................................................... 13 Would a ruling certifying an individual right to own firearms invalidate state and local laws? .......................................................................................................................... 13 Could a different case be filed to test state laws if the Supreme Court declares an individual right to own a firearm?................................................................................ 13 Would a ruling in favor of an individual rights theory overturn any federal court rulings? ................................................................................................................................... 13 Where does the "militia" clause of the Second Amendment fit into the Heller case? . 13 Doesn't the "well-regulated" phrase restrict the right to bear arms to only the organized militia? ....................................................................................................... 14 Some gun owners rights organizations are upset with the Bush Administration and the Solicitor General. Why is that? ............................................................................ 15 Resources ..................................................................................................................... 16 Court filings ................................................................................................................ 16 D.C. gun control laws ................................................................................................. 16 Lower court decision .................................................................................................. 16 Journalist resources on Second Amendment and firearm regulation policy ............... 16 State "keep and bear arms" clauses enacted shortly after the Bill of Rights .............. 16 Contacting the author of this briefing book .................................................................... 17

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Introduction
The U.S. Supreme Court is hearing a case that will define the meaning of the Second Amendment to the U.S. Constitution. This case is referred to as the Heller case, or fully "District of Columbia, et al., Petitioners v. Dick Anthony Heller." Disagreement on the meaning of the Second Amendment arose during the last part of the 20th Century. The odd wording of the amendment has led various factions to interpret this amendment in very different ways. This briefing book is both a quick study guide and a reference work for members of the media. The issues of the Heller case and of the Second Amendment are complex, requiring an understanding of the varying views of the Second Amendment, the history of its composition, as well as key rulings by courts over the years. This book should help answer the most common questions you will ask concerning the Heller case, and will reduce the time needed to complete your assignments. We have included external resources for reporters who want to dig more deeply into the subject. Where possible, links to authoritative source materials are included.

What is the "Heller" case?

The Heller case was specifically designed to test the meaning of the Second Amendment through the Supreme Court. By asking a very narrow question ("does the Second Amendment protect an individual right") and testing specific prohibitions enacted in Washington D.C. (a federal territory), the case had a high probability of being appealed to, and accepted by the Supreme Court. The case has been accepted by the Supreme Court and will be decided before the end of June, 2008.

Background on the conflict

After obtaining a small degree of home rule in 1973, the city of Washington D.C. enacted various gun control laws, including bans on handguns and storage laws for long guns (rifles and shotguns). Firearm bans and laws requiring owners to render long guns inoperable while kept at home may violate both the "keep" and bear" terms used in the Second Amendment. Why do some people refer to this case as the "Parker" case ? When the lawsuit was first filed in District Court, the case involved a number of plaintiffs (citizens) suing the Washington D.C. city government. The first plaintive name on the list at the original filing was Parker, and by convention the case was called Parker v. D.C. For reasons unimportant to the pending Heller case, many of the original plaintiffs did
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not have standing before the Supreme Court based on the questions the court sought to address. Heller was the only remaining plaintiff and thus, and thus "Parker v. D.C." became "Heller v. D.C.". Since the city appealed the case to the Supreme Court, they became the plaintiffs and the case has become known as "D.C. v. Heller". (The original plaintiff list was Shelly Parker, Dick Anthony Heller, Tom G. Palmer, Gillian St. Lawrence, Tracey Ambeau and George Lyon). The minutia behind the loss of plaintiffs For a person to have "standing" (the legal right to argue a case) in a federal court on constitutional issues, they must have suffered an actual restriction of an assumed civil liberty. Most of the original plaintiffs were in fear of being prosecuted if they violated D.C.'s bans on firearms, but had not attempted to acquire the firearms in question. Thus, they either (a) had not been denied a right because they did not try to exercise that right, or (b) had not been arrested and charged for having acquired/kept a firearm against city law. Dick Heller -- a security guard by profession -- had applied for a handgun ownership permit, which the city denied. Thus he retained standing in federal court, and became the namesake of the case.

When is the case being heard?

As of this writing, the scheduled date for oral arguments is Tuesday, March 18, 2008.

Why did the Supreme Court agree to hear the case?

The Heller case was specifically designed to be reviewed by the Supreme Court. It sought to challenge the city's restrictions, and ask a very narrow constitutional question. Cases with single, narrow questions are exactly the types of cases the Supreme Court accepts. In designing the Heller case, issues of state rights/powers were avoided because the District of Columbia is essentially a federal territory and not covered by the rules of federalism (state powers). The case also examined specific restrictions that the Second Amendment speaks to, namely the concepts of "the people", as well as the acts of "keeping" and "bearing" arms. In addition, the D.C. Circuit Court had no precedent ruling on the nature of the Second Amendment, and thus the plaintiffs avoided battling lower court precedents. Another compelling reason that caused the Supreme Court to take the case is that lower courts have issued conflicting rulings on the meaning of the Second Amendment. For example, the 5th Circuit Court has ruled that the Second Amendment guarantees an individual civil right to own firearms (U.S. v. Emerson) while the 9th Circuit Court has ruled that it does not (Silveira v. Lockyer). Such disharmony between sister courts creates an urgent issue requiring Supreme Court intervention.

What is the question the Supreme Court is asking?

When accepting the case (issuing a writ of certiorari), the court distilled and rephrased

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the core questions of the Parker/Heller case. This is not unusual for the court to do according to David Hardy, a lawyer who has taken cases to the Supreme Court and is an Associate Editor of the Arizona Law Review. Hardy notes that the court often rephrases questions in order to narrow the constitutional issue. The Supreme Court has asked plaintiffs and defendants to argue this question: Whether the following provisions, D.C. Code 7-2502.02(a)(4), 22-4504(a), and 7-2507.02, violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes. Some court watchers have speculated that this rephrasing assumes the Court believes that people have an individual right to own firearms (note how the Court asks if the "rights of individuals" have been violated). However, the court often rephrases question simply to set the stage for arguments. Thus making an assumption about the predisposition of the court is unwise. We will address some interesting issues concerning how the court phrased the question after we review the various interpretations of the Second Amendment, some court case history, and some common misconceptions therein.

What are the D.C. laws in question?

D.C. Code 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 create the following prohibitions: Ban on handguns: With the exception of handguns in ownership before the law was passed ("grandfather" exemption), all private ownership of handguns are banned unless specifically licensed by the city. This ban included ownership and possession on private property (i.e., within the home). Ban on carry: D.C. code prohibits carrying of any firearm (handgun, rifle, shotgun, etc.) anywhere, including on private property (in one's home). Quite literally, it is against the law in D.C. to transport a functioning hunting rifle from your bedroom to your living room as you prepare for a hunting trip. Ban functioning firearms: The city restricts possession of a functioning firearm, including grandfathered handguns. All firearms must be made inoperable using trigger locks, or by disassembling key components of the firearm. There are exceptions for firearms at a place of business, but any firearms in a home must be incapacitated.

What are the competing theories about the Second Amendment?

There are three basic theories of the Second Amendment. Any reporter who wants a complete discussion of the three theories should obtain a copy of the decision of U.S. v.

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Emerson which examined all competing theories in detail (U.S. Court of Appeals in United States v. Emerson, 2001 U.S. App. LEXIS 22386 -- 5th Cir. 2001). Be warned the decision is 125 pages of dense discussion on constitutional law. A PDF of the decision can be had at http://www.ca5.uscourts.gov/opinions/pub/99/9910331.cr0.wpd.pdf The Second Amendment as ratified by the states reads as follows: 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. (There is an academic quibble about the inclusion of an extra comma in the version voted on by the U.S. House and Senate, but which does not appear in the version ratified by the states. These arguments are largely immaterial and academically arcane.) For guidance, the two major halves of the amendment are known as the "justification" or "militia" clause, and the "rights" clause (i.e., the justification clause is "A well regulated militia being necessary to the security of a free State", and the rights clause is "the right of the people to keep and bear arms shall not be infringed"). Constitutional scholars use these terms frequently. The three major competing theories are commonly known as: Individual rights theory: This theory is also called the "standard model", a term borrowed from physical science disciplines. This theory holds that the Second Amendment protects the right of individual persons to own and use a firearm in legal pursuits (it is worth noting that nobody assumes convicted criminals, whose due process rights have been exercised, have any right to own a firearm). States rights (collective) theory: This is occasionally referred to as the "collective rights" theory and holds that the Second Amendment protects the power of each state to form militias. Sophisticated states rights (collective) theory: This theory holds that the right to own a firearm is available to individuals, but only in regard to military service (i.e., militia service). Very recently another theory called the "Narrow Individual Right" has been proffered. This theory holds that the Second Amendment prohibits disarming anyone in the militia while they are on duty. It is unlikely that the court will consider this theory due to lack of depth of constitutional scholarship, but more importantly because very few constitutional scholars take it seriously.

What do constitutional scholars say about these differing theories?

Given that constitutional law commentators codified each of these theories, you can find some degree of support for all of them. What is interesting and important is the amount of research that has recently been devoted to the Second Amendment and the

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consensus view. Until 1989, hardly anything had been written about the Second Amendment in peer reviewed law journals. Some early researchers (David Hardy, Dave Kopel, etc.) had published on the Second Amendment in smaller law journals. In 1989 Sanford Levinson published a paper in the Yale Law Journal titled "The Embarrassing Second Amendment" (a digital copy is available http://www.constitution.org/mil/embar2nd.htm). It is worth noting that Levinson refers to himself as a "liberal" and a "card-carrying A.C.L.U. member who doesn't own a gun." In academia, there is a truism that says "publish or perish." Constitutional scholars noticed Levinson's paper, and that very little had been written on the Second Amendment in its 200 year history. This ignited a huge and sustained level of scholarly research on the origins of the Second Amendment, creating an incredible body of evidence, most of which the Supreme Court will have to review. Scholars from the right, left and middle With few exceptions, constitutional law scholars appear to support the standard model interpretation. One way of understanding the breadth of acceptance is to examine the spread of political dispositions of these scholars. For example: Eugene Volokh (right of center): (http://www.law.ucla.edu/volokh/) Volokh holds an endowed chair at UCLA Law School. Volokh is considered to be politically right-of-center, and he once published a newsletter of the same name. He testified before the Senate Subcommittee on the Constitution on the subject of the Second Amendment, and concluded it protected an individual right. In that testimony Volokh writes "I found that the historical evidence ... overwhelmingly points to one and only one conclusion: The Second Amendment does indeed secure an individual right to keep and bear arms." Lawrence Tribe (left of center): http://www.law.harvard.edu/faculty/directory/ facdir.php?id=74 Tribe holds a chair at Harvard Law School and has been an advocate for left-of-center defense of constitutional issues. Though a relatively new perspective for Tribe, he concludes that "The people's 'right' to be armed cannot be trumped by the [Second] Amendment's preamble" (i.e., the militia clause) and "the federal government may not disarm individual citizens without some unusually strong justification." (Note his last sentence relates to a later discussion in this briefing about "strict scrutiny" review of law wherein Tribe appears to be at odds with the U.S. Solicitor General and the District of Columbia) Akhil Reed Amar (non-political): http://www.law.yale.edu/faculty/AAmar.htm Amar holds a chair in Yale's school of Law and Political Science. Amar is considered by his peers as an "academic's academic" and rarely takes public political positions -- an unusually quiet scholar though he describes himself as "a liberal/progressive on many issues." I had the opportunity to ask Amar if the Second Amendment protected an individual right to keep and bear arms, or if it

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protected a state's power to form militias. His answer was "Both."

How did the individual rights theory obtain the alternate name of the "standard model"?
Glenn Reynolds, Professor of Law at the University of Tennessee (http://www.law.utk.edu/FACULTY/facultyreynolds.htm), coined the phrase in 1995, using a term from physical sciences to describe his belief that the consensus opinion about the meaning of the Second Amendment favored the individual rights theory. (see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=960788) Though perhaps premature, it appears that Reynolds was correct. In 2001 a participating scholar on UCLA's Firearms Regulation Professors list reported on his "review of literature", where he cataloged all papers that took a position on the Second Amendment and were published in peer reviewed law journals. Papers supporting the individual rights theory were 30 times more numerous than those promoting any states rights alternative. It should be noted that the "standard model" is slightly different than the "individual rights" model, but in a meaningless way. The standard model supports both an individual right to keep and bear arms as well as the state's power to form militias. Most scholars see no duality between these two goals, and indeed believe they were intended to be mutually supportive.

What is the historical origin of the Second Amendment?

There are many ways of reviewing the origin of any part of the Constitution, including the Second Amendment. Most of the deeply academic approaches (English Common Law, grammatical exposition, etc.) will not be relevant to the Supreme Court's decision making process. Since the Second Amendment was an addition to the Constitution, and formulated after the Constitution was ratified, the mechanics of its origin will be the primary element in the Supreme Court's analysis. The Second Amendment came into existence as part of the entire Bill of Rights at the insistence of the Anti-Federalists. Many of the founders were reluctant to create a new and powerful national government without certain protections, and extracted from their opponents (the Federalists) a guarantee that such protections would be created. Congress followed through on that agreement and convened to create the Bill of Rights. The Second Amendment was developed in three phases: Proposals from the states: States sent to Congress suggested amendments, including the "keep and bear arms" clauses in their own constitutions. Editing and reduction: Congress merged and edited the submitted amendments. Each revision shows how Congress sought to simplify and narrow

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the meaning of the amendment (for example, the elimination of a "conscientious objector" clause in the Second Amendment). Congressional changes: During debate in Congress, proposals were made to alter the text (and meaning) of the Second Amendment. These proposed changes are instructive in seeing what was rejected.

What were the "keep and bear arms" clauses suggested by the states?
When congress convened to draft the Bill of Rights, the states provided over 190 proposed amendments, most of which were copied directly from state constitutions. This is important because seeing the original language of the state constitutions and the specifically proposed amendments provides clarity of the original intent of the Second Amendment. The 13 original states borrowed heavily from one another when writing their constitutions, and because of this there were four basic "keep and bear arms" clauses (the clauses were exactly the same or very similar from state to state). The variations of these "keep and bear arms" amendments that representatives brought with them to congress during the Bill of Rights creation process included: Pennsylvania (1776): That the people have a right to bear arms for the defense of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination, to, and governed by, the civil power. (Pennsylvania simplified their constitution in 1790 to read The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.) Vermont (1777): That the people have a right to bear arms for the defense of themselves and the State -- and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power. Massachusetts (1780): The people have a right to keep and to bear arms for the common defense. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it. North Carolina (1776): That the people have a right to bear arms, for the defense of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power. ("Keep and bear arms" clauses that appeared in state conventions after the Bill of Rights was created are also instructive in that they show the conventional

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understanding of the Second Amendment near its creation. These are included in the "Resources " section at the end of this book. In almost every instance the clause reads "every citizen has a right to bear arms in defense of himself") When the Federal Constitution was ratified, five of the ratifying states sent demands for a Bill of Rights to Congress. All these demands included a right to keep and bear arms. The relevant parts of these written demands are: New Hampshire: Twelfth[:] Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion. Virginia: Seventeenth, That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defense of a free State. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and governed by the Civil power. New York: ... That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defense of a free State; That the Militia should not be subject to Martial Law except in time of War, Rebellion or Insurrection. That Standing Armies in time of Peace are dangerous to Liberty, and ought not to be kept up, except in Cases of necessity; and that at all times, the Military should be under strict Subordination to the civil Power. North Carolina: Almost identical to Virginia's demand, but with "the body of the people, trained to arms" instead of "the body of the people trained to arms." Rhode Island: Almost identical to Virginia's demand, but with "the body of the people capable of bearing arms" instead of "the body of the people trained to arms," and with a "militia shall not be subject to martial law" proviso as in New York.

What were the different drafts of the Second Amendment?

James Madison had the duty of drafting the Bill of Rights from proposed amendments submitted by the states. The initial version of the Second Amendment read as follows, and it is worth noting that the structure strongly resembles the enumerated list of rights appearing in the First Amendment: The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person. The second draft of the Second Amendment saw a rearrangement of the justification and rights clauses, but no change in the intents and purposes therein:

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A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed, but no person religiously scrupulous shall be compelled to bear arms. Four further revisions removed objectionable concepts (such as the conscientious objector clause) and reduced the total word count to its current parsimonious form.

Were any additions suggested to the Second Amendment during congressional debate?
Yes. Though notes of congressional debates concerning the Bill of Rights are occasionally incomplete, there is a complete history of proposed changes to wording and the votes taken. On the Second Amendment, there is only one that might have affected any assumed individual right. On September 9, 1789, a member of the Senate proposed adding "for the common defense" onto the draft of the Second Amendment. In other words, the proposed wording of the amendment would have read: A well regulated militia being the security of a free State, the right of the people to bear arms for the common defense, shall not be infringed. (note that the version being debated at that time lacked the words being necessary, which were added by the House) The proposed change was voted down. This is instructive because some believe that the current wording of the amendment exists specifically for collective/common/mutual defense, and has no bearing on individual self defense. However, the Senate considered adding this restriction and rejected it.

Doesn't the word "state" define the Second Amendment as a government power?
Though not relevant to the Heller case (being a case covering only Federal territories like the District of Columbia), it is an interesting question. The consensus view promoted in the "standard model" theory is that the two are not incompatible. The standard model maintains that the Second Amendment sought to ensure both an individual right to own firearms for various purposes (self defense, hunting, sports, etc.) as well as maintaining the existing militia structure. Another interpretation is that the word "state" refers not to the individual state governments, but to the concept of organized society. In other words, some theorize that a "free State" means "free government." Proponents of this theory note that congress used the singular form of the word "state" in the Second Amendment (i.e., "of a free State" as opposed to "of the free states"). This argument may be important. Throughout the Constitution, the plural form is used when describing the demarcation of powers between the federal government and the states. Also worth noting is that Congress (at that time at least) was composed of the well educated elite. Their debates of the minutia of the language within the Bill of Rights
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indicate that careful phrasing of each amendment was important. Use of singular and plural forms of a word would have been considered.

What has the Supreme Court previously said about the Second Amendment?
Federal courts have discussed the Second Amendment many times. In most cases, the analysis was not central to the case (for example, in the infamous Dred Scott case, the court listed all the rights African Americans would acquire if emancipated, and in that list they included the right to own firearms). The Supreme Court has only weighed in a couple of times, and unfortunately their past rulings create more confusion than clarity.

U.S. v. Cruikshank (1876):

Cruikshank was adjudicated by the Supreme Court in 1876, less than 100 years after the Bill of Rights was ratified, but before constitutionally protected rights were routinely enforced against the states via 14th Amendment (a process known as "incorporation"). Thus the ruling is both informative and adds to common confusion. In this case, both the First Amendment "right of the people peaceably to assemble" and the Second Amendment right of individuals "bearing arms for a lawful purpose" were tested. On both issues, the Supreme Court ruled that these were individual rights. They also ruled that the amendments were (at the time) prohibitions against Congress only. However, the court also maintained it was incumbent upon the states to defend these rights, saying "The very highest duty of the States, when they entered into the Union under the Constitution, was to protect all persons within their boundaries in the enjoyment of these 'unalienable rights with which they were endowed by their Creator.'" Thus the decision in Cruikshank said in effect it is an individual right, but only provides protection against acts of Congress, but the states have the duty to defend these rights as well. The issue became more confusing when in later years the 14th Amendment was commonly used to bar states from denying other enumerated constitutional rights (such as Jim Crow laws). The Supreme Court has not yet heard a modern case testing 14th Amendment incorporation of the Second Amendment against the states.

U.S. v. Miller (1939):

Constitutional scholars often claim that judges are frustrated writers, as evidenced by the length and rambling nature of their rulings. One "con law" wag said of the Miller case "It is a shining example of judicial inarticulation." The back story on U.S. v. Miller is that Miller had violated a tax law, one that required anyone owning a certain type of firearm (in this case a shotgun with a short barrel) to pay a "transfer tax" (a tax collected every time the firearm's ownership was transferred). Miller was a bootlegger, and was thus unaccustomed to paying taxes though he did

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have a sawed-off shotgun in his possession. When arrested he was charged with failing to pay the required transfer tax on the firearm. (It is interesting to note that when the Federal government wanted to restrict criminal access to sawed-off shotguns, they recognized potential conflicts with the Second Amendment and decided instead to impose a prohibitively expensive tax when buying or selling such firearms.) (It is also worth noting that Miller himself was not represented in court. He was missing and found dead shortly thereafter, and his lawyer did not appear in court to argue his case. Thus most constitutional law scholars hold the entire opinion suspect since there were no defense arguments.) Miller's defense in the lower courts was that such a tax violated Miller's Second Amendment rights to own a firearm. Thus the individual right was tested in lower courts, which found the tax to be an unconstitutional restriction. The Supreme Court reviewed one side of the question, and made no firm conclusions. The court decided two things: 1) If the firearm in question had any military usefulness, then it would definitely violate the militia clause of the Second Amendment, and through that would assuredly violate all potential rights (individual rights or state powers). 2) The firearm in question had not been shown to have or lack a military use. The Supreme Court remanded the case back to lower courts to review that question, in effect asking "Does a short barreled shotgun have any use by soldiers, and thus militia members?" The lower courts never did decide this issue because Miler was dead, and without a living defendant, they had no reason to continue. To summarize the Miller case: the Supreme Court never decided for or against the individual rights theory. It remained an open question. The case can be found at http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=92&pa ge=542

U.S. v Emerson (2001)

This is a recent case decided in the 5th Circuit Court. Though not reaching the Supreme Court, it is important for several reasons: 1) It was decided after most of the recent (post 1989, post-Levinson) research and thus had the greatest amount of academic input of any Second Amendment case. 2) The Court produced a detailed examination of all major theories (individual, states, sophisticated states). 3) Made a definitive determination of the meaning of the Second Amendment.

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(We will note that the 9th and 10th Circuit Courts also opined on the Second Amendment in the post 1989/Levinson era, and came to a different conclusion than the 5th Court. However, the 9th's decision was redacted -- erasing a citation the court originally claimed as authoritative. Somehow the 9th Circuit Court was unaware that a book they cited as authoritative had earlier been peer-judged to be an academic fraud. Court watchers feel the decision -- being based on known fraudulent materials and being quietly edited afterwards -- lacks serious consideration. The court in U.S. v. Emerson concluded that the Second Amendment secures an individual right.

Common questions about the Heller case

Would a ruling certifying an individual right to own firearms invalidate state and local laws?
No, or at least not immediately. Remember that this case was filed in a federal territory, and was designed only to ask the question of the meaning within the Constitution. Unless the Supreme Court violates its standard doctrine of reviewing narrow questions of law -- which is highly unlikely -- then the state law issue will not be debated. For any ruling to invalidate state laws, a constitutional right must be "incorporated" against the state via the 14th Amendment ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"). The Heller case is not asking if any state law abridges presumed Second Amendment rights of citizens. Thus, state laws will not be affected by a decision in this case.

Could a different case be filed to test state laws if the Supreme Court declares an individual right to own a firearm?
Yes. Though beyond the scope of this briefing book, it is conceivable that a case could be filed to test a state or local firearm ban. Since such local bans are rare, few people are anticipating such a case.

Would a ruling in favor of an individual rights theory overturn any federal court rulings?
No, because very few lower court rulings deal with firearm issues in federal territories. It is conceivable that lower courts, while deciding other federal legislation, may lean on the Supreme Court's decision in Heller, but this depends on the issues of those future cases, which are unknown at this time. For now, little would change outside of Washington D.C.

Where does the "militia" clause of the Second Amendment fit into the Heller case?
Nobody is certain at this point. The court made specific mention of the militia aspect

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when they rephrased the questions posed in the case. The court asked: Whether the following provisions, D.C. Code 7-2502.02(a)(4), 22-4504(a), and 7-2507.02, violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes. The word "militia" has deep historical definitions as well as modern ones. Both the founders and early militia acts stated that the militia was composed of all able bodied men (even in the early days freed blacks were, in some states, part of the militia). George Mason, one of the Framers of the U.S. Constitution, said, "Who are the Militia? They consist now of the whole people, except for a few public officers." "State rights" theorists claim the militia is the National Guard, though this does not have historical support. Aside from founder's statements and the "keep and bear arms" clauses of early state constitutions, and the fact that the National Guard wasn't created until the 20th century, we have Federal Militia Acts (1792, 1862, 1903) as markers as to the definition of the militia. In these acts, the federal government explicitly recognized the embodiment of every person capable of bearing arms as a member of the militia. One recent argument centers on the seeming conflict of the concept. The Bill of Rights was in response to the fears of the Anti-Federalists who felt there were insufficient checks on the power of the new federal government. If the militia were to be controlled by the federal government (indeed, the federal government can call-up state militias for national service), and if the right to own a firearm was tied explicitly to a militia membership, then the check on federal power disappeared. This is a conflict of logic not easily dismissed and tends to deny the collective power theory. (Side note: Jon Roland of the Constitution Society is fond of noting that the classical Latin definition of the word "militia" was "defensive activity" or "military service." He also notes that the founding fathers were well educated in Latin, and that the primal meaning of the "militia" would have been on their minds. Thus he contends that Congress and the ratifying states used the word militia not as a description of an organization, but as an action -- that well organized militia meant a well orchestrated defense.) The militia has always been composed of all citizens, though in recent times the militia has been divided into two components: the "organized militia" (National Guard, et al) and the "unorganized militia" (everyone else). This distinction has been codified in various federal militia acts. If the court agrees with the historical and enduring definition of the militia being composed of the entire adult population, then a decision confirming an individual right will not be affected by the Second Amendment's justification clause.

Doesn't the "well-regulated" phrase restrict the right to bear arms to only the organized militia?
There is considerable debate on this, though proponents of the standard model interpretation claim it makes no difference (their argument is that the militia is composed
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of all people, and at worst it is government's job to ensure they are ready for service). The phrase "well regulated" has a historical base, which will be an important consideration. The phrase first appeared prominently in a 1698 treatise by Andrew Fletcher titled A Discourse of Government with Relation to Militias. This work was very popular among American revolutionaries, and it is highly likely that most of the founders had read it. In Fletcher's book, the term "well regulated" was equated with "well-behaved" or "disciplined". This traditional use of the word "regulate" creates confusion with the modern use of the word which means "to control" (as used in the phrase "government regulation"). The historical origin of the phrase, as well as the contemporaneous use of the word when the Bill of Rights was drafted, indicates that the Second Amendment was not created to empower government control over a right to keep and bear arms, but to ensure some form of citizen soldiery through organizational powers. David Hardy claims that this meaning makes sense within the context of the Second Amendment. He notes that the phrase was widely used during colonial times, and even appeared in such concepts as gentlemen having "well-regulated tastes". Noting that "well-regulated" meant "orderly", then he concludes: "The flow of the Second Amendment becomes utterly clear: Law-abiding [wellregulated] gun owners being necessary to the security of a free State ...."

Some gun owners rights organizations are upset with the Bush Administration and the Solicitor General. Why is that?
Get ready for some legal minutia! Over time the courts have created various levels of "scrutiny" in terms of their review of violations of civil liberties. Strict scrutiny is the strictest standard of judicial review, followed by intermediate scrutiny and rational basis review. The higher the level of scrutiny, the greater the burden is on the government to show why the law should be allowed to stand. In the Heller case, the lower court used strict scrutiny in deciding that the Second Amendment confirmed an individual right. To pass strict scrutiny, and thus to restrict any right of an individual, a law must satisfy several tests: It must be justified by a compelling governmental interest (i.e., something crucial like national security, as opposed to something merely preferred). The law must be narrowly tailored to achieve that goal or interest (i.e., no broad, catch-all legislation). It must be the least restrictive means for achieving that interest (i.e., if other forms of achieving the goal are available and do not infringe on "the people's" freedom, then the more restrictive law is voidable). What made gun owners rights groups angry was that the Solicitor General agreed with
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the city of D.C. who contended that the Circuit Court should not have applied strict scrutiny standards to the gun bans (the Solicitor General's filing on the Heller case can be found at http://armsandthelaw.com/archives/07-290tsacUnitedStates.pdf). Some people feel this opens the case for the Supreme Court to tacitly agree that the Second Amendment protects an individual right to own a gun, but that in future cases a lesser standard be applied in review, or even that the Heller case be remanded (sent back) to the Circuit Court to determine if the city has substantial compelling interests. The court does not have to rule on the level of scrutiny used by the Circuit Court, and may not.

Resources
Court filings
All of the documents filed in Parker and Heller have been archived at http://dcguncase.com/blog/case-filings/

D.C. gun control laws

The relevant sections of D.C. municipal code in question in the Heller case are online at http://dcguncase.com/blog/dc-gun-laws/

Lower court decision

The District Court ruled that the Second Amendment codifies an individual right, which resulted in the city appealing the case to the Supreme Court. The decision of the lower court can be obtained at the court's web site at http://pacer.cadc.uscourts.gov/docs/ common/opinions/200703/04-7041a.pdf (PDF file).

Journalist resources on Second Amendment and firearm regulation policy

Eugene Volokh of UCLA Law School maintains a list of various experts in the fields of constitutional law, criminology, and gun control policy at http://www.gunscholar.org/

State "keep and bear arms" clauses enacted shortly after the Bill of Rights
Kentucky (1792): That the right of the citizens to bear arms in defense of themselves and the State shall not be questioned. Tennessee (1796): That the freemen of this State have a right to keep and to bear arms for their common defense. Kentucky (1799): That the rights of the citizens to bear arms in defense of themselves and the State shall not be questioned.

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Ohio (1802): That the people have a right to bear arms for the defense of themselves and the State; and as standing armies, in time of peace, are dangerous to liberty, they shall not be kept up, and that the military shall be kept under strict subordination to the civil power. Indiana (1816): That the people have a right to bear arms for the defense of themselves and the State, and that the military shall be kept in strict subordination to the civil power.

Mississippi (1817): Every citizen has a right to bear arms, in defense of himself and the State. Connecticut (1818): Every citizen has a right to bear arms in defense of himself and the state. Maine (1819): Every citizen has a right to keep and bear arms for the common defense; and this right shall never be questioned. Alabama (1819): That every citizen has a right to bear arms in defense of himself and the state. Missouri (1820): That the people have the right peaceably to assemble for their common good, and to apply to those vested with the powers of government for redress of grievances by petition or remonstrance; and that their right to bear arms in defense of themselves and of the State cannot be questioned.

Contacting the author of this briefing book

Guy Smith, guy@GunFacts.info

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