No Easy Answers
Friday, February 08, 2008
Congressional Brief in DC v. Heller
Source:
http://www.gurapossessky.com/news/parker/documents/07-290bsacMembersUSSenate.pdf
Hat tip: Volokh Conspiracy: Congressional Brief in DC v. Heller
No. 07-290
In the Supreme Court of
the United States
DISTRICT OF COLUMBIA , ET AL.,
Petitioners
v.
DICK ANTHONY HELLER ,
Respondent
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR AMICI CURIAE 55 MEMBERS OF
UNITED STATES SENATE, THE PRESIDENT OF THE
UNITED STATES SENATE, AND 250 MEMBERS OF
UNITED STATES HOUSE OF REPRESENTATIVES
IN SUPPORT OF RESPONDENT
STEPHEN P. HALBROOK*
10560 Main Street, Suite 404
Fairfax, VA 22030
(703) 352-7276
Counsel for Amici Curiae
*Counsel of Record
QUESTION PRESENTED
Whether the following provisions -- D.C. Code
secs. 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?
i
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . i
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iv
STATEMENT OF INTEREST OF
AMICI CURIAE . . . . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 2
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . 5
I. ORIGINAL INTENT AND EARLY
INTERPRETATION . . . . . . . . . . . . . . . . . 5
A. The Text: Rights of the People vs.
State Powers . . . . . . . . . . . . . 5
B. Drafting the Amendment in 1789 . . . . 9
C. The Freedmen's Bureau Act of 1866 . . 13
II. CONTINUATION OF A CONSISTENT
READING . . . . . . . . . . . . . . . . . . . . 19
A. Regulation in the District
of Columbia . . . . . . . . . . . . . 19
B. The Property Requisition
Act of 1941 . . . . . . . . . . . . . 22
C. The Firearms Owners' Protection Act
of 1986 . . . . . . . . . . . . . . . . 26
III. LEGISLATION IN THE 21ST CENTURY . . . . . . . . 28
A. Protection of Lawful Commerce in
Arms Act . . . . . . . . . . . . . . . 28
B. Disaster Relief & Emergency Assistance
Act Amendment . . . . . . . . . . . . 31
C. The D.C. Personal Protection
Act Bill . . . . . . . . . . . . . . . 34
IV. A HANDGUN BAN IS UNREASONABLE
ON ITS FACE, RENDERING A REMAND
FOR FURTHER PROCEEDINGS
UNNECESSARY . . . . . . . . . . . . . . . . . . 35
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . 37
APPENDIX: THOSE JOINING IN
AMICI CURIAE BRIEF . . . . . . . . . . . . . . . . . . 1a
iv
TABLE OF AUTHORITIES
CASES Page
Nixon v. Administrator of General Services,
433 U.S. 425 (1977) . . . . . . . . . . . . . . . . . . 2
Parker v. District of Columbia, 478 F.3d 370
(D.C. Cir. 2007) . . . . . . . . . . . . . . . . . . . 5
San Antonio Independent School District v.
Rodriguez, 411 U.S. 1 (1973) . . . . . . . . . . . . . 36
CONSTITUTIONS
U.S. Const., Art. I, § 8 . . . . . . . . . . . . . . . 7
U.S. Const., Art. I, § 8, cl. 16 . . . . . . . . . . . 8
U.S. Const., Amendment I . . . . . . . . . . . . . . 6, 7
U.S. Const., Amendment II . . . . . . . . . . . . passim
U.S. Const., Amendment IV . . . . . . . . . . . . . . 6
U.S. Const., Amendment V . . . . . . . . . . . . . . . 7
U.S. Const., Amendment VI . . . . . . . . . . . . . . 6
U.S. Const., Amendment VII . . . . . . . . . . . . . . 6
U.S. Const., Amendment IX . . . . . . . . . . . . . . . 6
U.S. Const., Amendment X . . . . . . . . . . . . . . . 7
U.S. Const., Amendment XIII . . . . . . . . . . . . . 13
U.S. Const., Amendment XIV . . . . . . . . . . . . 15-19
STATUTES AND ORDINANCES
Civil Rights Act, 14 Stat. 27 (1866) . . . . . 13, 16, 19
Department of Homeland Security
Appropriations Act, 2007, P.L. 109-295,
120 Stat. 1355 (2006) . . . . . . . . . . . . . . 31, 33
Firearms Owners' Protection Act, P.L. 99-308,
100 Stat. 449 (1986) . . . . . . . . . . . . . . 4, 26-28
Freedmen's Bureau Act, 14 Stat. 173
(1866) . . . . . . . . . . . . . . . . . . . . 2, 13, 18
Gun Control Act, P.L. 90-618, 82 Stat. 1213
(1968) . . . . . . . . . . . . . . . . . . . . 3, 26, 35
Property Requisition Act, P.L. 274,
55 Stat. 742 (1941) . . . . . . . . . . . . . . 3, 22-25
Protection of Lawful Commerce in Arms Act,
P.L. 109-92, 119 Stat. 2095 (2005) . . . . . . . 4, 28-31
Robert T. Stafford Disaster Relief and Emergency
Assistance Act, in Department of Homeland
Security Appropriations Act, 2007, Title IV, § 557,
P.L. 109-295, 120 Stat 1355 (2006) . . . . . . . 4, 31-34
18 U.S.C. § 922(g) . . . . . . . . . . . . . . . . . . 36
18 U.S.C. § 922(o) . . . . . . . . . . . . . . . . . . 36
18 U.S.C. § 922(p) . . . . . . . . . . . . . . . . . . 36
18 U.S.C. § 922(t) . . . . . . . . . . . . . . . . . . 36
18 U.S.C. § 923 . . . . . . . . . . . . . . . . . . . 36
18 U.S.C. § 926A . . . . . . . . . . . . . . . . . . . 28
42 U.S.C. § 1981 . . . . . . . . . . . . . . . . . . . 16
42 U.S.C. § 5207 . . . . . . . . . . . . . . . . . 31, 32
27 Stat. 116 (1892) . . . . . . . . . . . . . . . . . 19
31 Stat. 1328 (1901) . . . . . . . . . . . . . . . . . 19
34 Stat. 808 (1906) . . . . . . . . . . . . . . . . . 20
47 Stat. 650 (1932) . . . . . . . . . . . . . . . . . 20
57 Stat. 586 (1943) . . . . . . . . . . . . . . . . . 21
67 Stat. 93 (1953) . . . . . . . . . . . . . . . . . . 21
D.C. Code § 1-303.43 . . . . . . . . . . . . . . . . 20
D.C. Code, Chapter 45 . . . . . . . . . . . . . . . . 21
LEGISLATIVE MATERIALS
Cong. Globe . . . . . . . . . . . . . . . . . . . . 14-18
Cong. Rec. . . . . . . . . . . . . . . . . . . . . passim
District of Columbia Personal Protection Act
Bills, H.R. 5013 (2004), S. 1001,
H.R. 1399 (2007) . . . . . . . . . . . . . . . . 4, 34-35
Freedmen's Bureau Bill, H.R. 613 (1866) . . . . . . . 16
House Report 767, 72d Cong., 1st Sess. (1932) . . . . 21
Disaster Recovery Personal Protection Act Bill,
H.R. 5013 (2006) . . . . . . . . . . . . . . . . . . 32
Rpt. No. 1120 [to accompany S. 1579], House
Committee on Military Affairs, 77th Cong.,
1st Sess. (Aug. 4, 1941) . . . . . . . . . . . . . . . 23
Rpt. No. 1214, Conference Report [to accompany
S. 1579], 77th Cong., 1st Sess. (Sept. 25, 1941) . . . 25
viii
The Right to Keep and Bear Arms: Report of the
Subcommittee on the Constitution, Senate
Judiciary Committee, 97th Cong., 2d Sess. (1982) . . . 27
Senate Report 575, 72d Cong., 1st Sess. (1932) . . . . 21
OTHER AUTHORITIES
A. Amar, The Bill of Rights & the Fourteenth
Amendment, 101 YALE L.J. 1193 (Apr. 1992) . . . . . . 13
D. Caplan, Restoring the Balance: The Second
Amendment Revisited, 5 FORDHAM URBAN
L.J. 31 (1976), reprinted in 131 CONG. REC .
S8692 (June 24, 1985) . . . . . . . . . . . . . . . . 27
CREATING THE BILL OF RIGHTS (1991) . . . . . . . . . . 12
DOCUMENTARY HISTORY OF THE FIRST FEDERAL
CONGRESS (1986-1995) . . . . . . . . . . . . . . . 9-11
DOCUMENTARY HISTORY OF THE RATIFICATION
OF THE CONSTITUTION (1976, 2000) . . . . . . . . . 11, 12
FEDERAL GAZETTE , June 18, 1789 . . . . . . . . . . . 10
S. Halbrook, Congress Interprets the Second
Amendment: Declarations by a Co-Equal Branch
on the Individual Right to Keep and Bear Arms,
62 TENNESSEE LAW REVIEW 597 (Spring 1995). . . . . . . 22
S. Halbrook, FREEDMEN , THE FOURTEENTH
AMENDMENT, & THE RIGHT TO BEAR ARMS,
1866-1876 (1998) . . . . . . . . . . . . . . . . . 13-14
S. Halbrook, Second-Class Citizenship and the
Second Amendment in the District of Columbia,
5 GEORGE MASON UNIVERSITY CIVIL RIGHTS
LAW JOURNAL, Nos. 1 & 2, 105 (1995). . . . . . . . . . 19
S. Halbrook, To Keep and Bear Their Private Arms:
The Adoption of the Second Amendment, 1787-1791,
10 N.Ky.L.Rev. 13 (1982), reprinted in 131 Cong. Rec.
S9105 (July 9, 1985) . . . . . . . . . . . . . . . . . 27
James C. Hutson, The Bill of Rights: The Roger
Sherman Draft, in THIS CONSTITUTION (1988) . . . . . 10
JOURNAL OF THE FIRST SESSION OF THE SENATE
(1820) . . . . . . . . . . . . . . . . . . . . . . 12, 13
PAPERS OF JAMES MADISON (1973, 1979) . . . . . . 7, 9, 10
WILLIAM BLACKSTONE , COMMENTARIES . . . . . . . . . . 7
1
STATEMENT OF INTEREST
OF AMICI CURIAE
The Amici Curiae include Senator Kay Bailey
Hutchison, the lead member, and 54 other members of
the United States Senate; the President of the United
States Senate; and 250 members of the United States
House of Representatives. See Appendix herein. As
Federal officials, we have a fundamental interest in
protecting the constitutional rights of our constituents
and the American people in general.1
The Congress has a long history of protecting
the right of the people to keep and bear arms. Like
the rest of the Bill of Rights, the Second Amendment
was proposed to the States by the Congress in 1789.
On several occasions, in different epochs of American
history, the Congress enacted statutory texts which
explicitly declared its understanding of the Second
Amendment as guaranteeing fundamental, individual
rights.
Congress interprets the Constitution in deciding
what laws to pass. As on other issues, this has
historically been the case regarding the Second
Amendment and the District of Columbia. "In the
---
1
No counsel for any party to this case authored this brief
in whole or in part, no such counsel or a party made a monetary
contribution intended to fund the preparation or submission of
the brief, and no person or entity other than the Amici Curiae or
their counsel made such a monetary contribution. This brief is
filed with the written consent of all parties, seven-days notice
having been provided to them of this filing.
2
performance of assigned constitutional duties each
branch of the Government must initially interpret the
Constitution, and the interpretation of its powers by
any branch is due great respect from the others."
Nixon v. Administrator of General Services, 433 U.S.
425, 703 (1977).
The Amici Curiae wish to bring their unique
perspective to this Court's attention to explain to the
Court the historical meaning of the Second
Amendment as understood by the Congress, and why
the District's firearms prohibitions at issue infringe on
the rights of the law-abiding citizens of the District of
Columbia as guaranteed by the Second Amendment.
SUMMARY OF ARGUMENT
The Second Amendment provides: "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." Congress adopted that
wording and proposed it to the States in 1789. It
became part of the Bill of Rights which the States
ratified in 1791. As the text and the drafting history
demonstrate, the Amendment was intended to
guarantee the right of individuals to possess and keep
ordinary firearms.
Following the abolition of slavery, Congress
sought to end the incidents of slavery, including
prohibitions on possession of firearms by African
Americans. In 1866, over two-thirds of Congress
passed the Freedmen's Bureau Act, which declared
3
protection for the "full and equal benefit of all laws
and proceedings concerning personal liberty, personal
security, and . . . estate . . ., including the
constitutional right to bear arms . . . ."
In passing firearms regulations for the District,
Congress has been sensitive to Second Amendment
concerns. An 1892 enactment prohibiting the carrying
of concealed weapons exempted one's place of business
and dwelling house. In 1906, Congress empowered the
District to pass "such usual and reasonable police
regulations" deemed necessary to regulate firearms,
which today remains the District's only delegation to
regulate firearms. A ban on handguns is both unusual
and unreasonable. In 1932 Congress passed a
comprehensive firearms act which remains largely in
place. As the Senate report for that act stated, "the
right of an individual to possess a pistol in his home or
on land belonging to him would not be disturbed by
the bill."
In 1941, Congress enacted the Property
Requisition Act, which authorized the President to
requisition certain types of property. The Act declared
that it must not be construed "to authorize the
requisitioning or require the registration of any
firearms possessed by any individual for his personal
protection or sport" unless prohibited or already
required to be registered, or "to impair or infringe in
any manner the right of any individual to keep and
bear arms . . . ."
The Gun Control Act of 1968 declared that "this
title is not intended to discourage or eliminate the
4
private ownership or use of firearms by law-abiding
citizens for lawful purposes." And in the Firearms
Owners' Protection Act of 1986, over two-thirds of
Congress found that the rights of citizens "to keep and
bear arms under the second amendment to the United
States Constitution" as well as other constitutional
rights "require additional legislation to correct existing
firearms statutes and enforcement policies."
Attempts to ban handguns through litigation led
Congress to enact the Protection of Lawful Commerce
in Arms Act in 2005. Approximately two-thirds of
Congress found that the Second Amendment "protects
the rights of individuals, including those who are not
members of a militia or engaged in military service or
training, to keep and bear arms." The Act precludes
lawsuits against the lawful industry "to preserve a
citizen's access to a supply of firearms and
ammunition for all lawful purposes . . . ."
Confiscations of firearms in the wake of
Hurricane Katrina led Congress in 2006 to amend the
Robert T. Stafford Disaster Relief and Emergency
Assistance Act to forbid seizures of lawful firearms in
disasters. Over two-thirds of the House enacted
Findings that the seizures violated citizens' Second
Amendment rights to have firearms for protection in
the home and elsewhere. The Findings were deleted
when the bill was added to an appropriations bill in
the Senate, but its underlying basis in the Second
Amendment remained understood.
The "District of Columbia Personal Protection
Act," a bill which passed the House in 2004 and is
5
currently pending, includes the Finding that:
"Legislation is required to correct the District of
Columbia's law in order to restore the fundamental
rights of its citizens under the Second Amendment . .
. ."
In sum, historically Congress has interpreted
the Second Amendment as recognizing the right of
law-abiding individuals to keep and bear arms. This
Court should give due deference to the repeated
findings over different historical epochs by Congress,
a co-equal branch of government, that the Amendment
guarantees the personal right to possess firearms.
The District's prohibitions on mere possession
by law-abiding persons of handguns in the home and
having usable firearms there are unreasonable per se.
No purpose would be served by remanding this case
for further fact finding or other proceedings. This
Court should affirm the decision below, Parker v.
District of Columbia, 478 F.3d 370 (D.C. Cir. 2007).
ARGUMENT
I. ORIGINAL INTENT AND EARLY
INTERPRETATION
A. The Text: Rights of the People
vs. State Powers
The Second Amendment provides: "A well
regulated militia, being necessary to the security of a
free state, the right of the people to keep and bear
6
arms, shall not be infringed." This declares a political
principle and then guarantees a substantive right.
The term "the people" is in juxtaposition to the
government, federal or State. Only individuals have
"rights," while the United States and the States have
"powers."
The phrase "the right of the people" also appears
in the First Amendment "Congress shall make no
law . . . abridging . . . the right of the people peaceably
to assemble, and to petition the government for a
redress of grievances." The Fourth Amendment
guarantees: "The right of the people to be secure in
their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated . . . ."
The Ninth Amendment uses the same
phraseology: "The enumeration in the Constitution, of
certain rights, shall not be construed to deny or
disparage others retained by the people."2 These
guarantees protect individuals from government
action, and do not delegate or reserve powers to
governmental bodies.3
---
2
See also U.S. Const., Amend. VI ("the accused shall enjoy
the right to a speedy and public trial"); Amend. VII ("the right of
trial by jury shall be preserved").
3
It violates ordinary word usage to say that "the people"
means only such persons as the government selects, and that one
has a "right" to do something only if commanded by the
government. Yet these are the premises of the "collective rights"
view.
7
The constitutional text distinguishes between
"the people," "the militia," and the "States." The
Second Amendment refers to "a well regulated
militia," but the right to keep and bear arms is
guaranteed to "the people." The Fifth Amendment
requires indictment by a grand jury except "in the
Militia, when in actual service in time of War or public
danger," a class that contrasts with "the people" who
may bear arms under the Second Amendment. The
Tenth Amendment refers to powers "reserved to the
states respectively, or to the people."
The Second Amendment refers to the right to
"keep" arms (such as at home) as well as to "bear"
arms (meaning to carry them). Protected arms include
commonly-kept firearms that one can keep and carry
for lawful purposes, such as ordinary rifles, handguns,
and shotguns, and not crew-served or heavy weapons.
The Amendment declares a well regulated
militia to be necessary to the security of a "free State,"
which means a free country, and is not restricted to a
State government.4
Article I, § 8, declares the "powers" of Congress,
including its sharing of power over the militia with the
---
4
The First Amendment too has "free State" aims. "The
liberty of the press is indeed essential to the nature of a free state
. . . ." 4 W ILLIAM B LACKS TONE , C OM M ENTAR IES *151-152.
"Faithful members of a free State" signed the Memorial and
Remonstrance Against Religious Assessments. 8 PAPERS OF
JAMES MADISON 298-99 (1973).
8
States,5 and the Tenth Amendment declares
undelegated "powers" to be reserved to the States or to
the people. No "rights" are delegated to the United
States or reserved to the States. Only "the people"
individuals have "rights."
Where a State power is reserved or restricted,
the Constitution names the State as the subject entity.
It does not name the people the State may employ or
conscript as the subject entity, other than in
describing the State power. For instance, Congress
has power to provide for organizing the militia,
"reserving to the States respectively, the Appointment
of the Officers . . . ." U.S. Const., Art. I, § 8, cl. 16. It
is not declared that "the right of the Officers of the
militia to be appointed by the States shall not be
infringed." Similarly, the Second Amendment does
not declare that "the right of the persons in the militia
to be armed as required by the States shall not be
infringed." Instead, it recognizes that "the right of the
people to keep and bear arms, shall not be infringed."6
---
5
U.S. Const., Article I, § 8, clause 16 provides that
"Congress shall have power":
To provide for organizing, arm ing, 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 . . . .
6
The lone militiaman compelled by law to render service
would have little or no incentive or means to take political or
9
In sum, the Second Amendment guarantees an
individual right to keep and bear arms. Recognition of
that right promotes the well regulated militia
necessary for a free State's security.
B. Drafting the Amendment in 1789
On June 8, 1789, Rep. James Madison
introduced what would become the Bill of Rights in the
House of Representatives, stating that it would
"expressly declare the great rights of mankind secured
under this constitution."7 In a draft of his speech,
Madison referred to the rights of "freedom of press
Conscience . . . arms" as "private rights."8 His draft of
the arms guarantee stated: "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
---
legal action to protect any such State power. If the States are the
beneficiaries of constitutional protection, they would have the
incentive and the means to guard their prerogatives. When
analyzed closely, the "collective rights" reading of the Second
Amendment is simply implausible.
7
11 DOCUMENTARY HISTORY OF THE FIRST FEDERAL
CONGRESS 820 (1992).
8
12 PAPERS OF JAMES MADISON 193-94 (1979).
10
scrupulous of bearing arms shall be compelled to
render military service in person."9
Ten days later, Federalist Tench Coxe
explained: "As civil rulers, not having their duty to the
people duly before them, may attempt to tyrannize,
and as the military forces which must be occasionally
raised to defend our country, might pervert their
power to the injury of their fellow-citizens, the people
are confirmed by the next article in their right to keep
and bear their private arms."10 Madison endorsed
Coxe's analysis.11
Madison's draft was referred to a House Select
Committee. Roger Sherman, a committee member,
drafted his own amendments, including that "The
militia shall be under the government of the laws of
the respective states, when not in the actual service of
the United States . . . ."12 The Committee reported a
---
9
4 DOCUMENTARY HISTORY OF THE FIRST FEDERAL
CONGRESS 10 (1986).
10
FEDERAL GAZETTE , June 18, 1789, at 2, col. 1.
11
12 PAPERS OF JAMES MADISON 239-40, 257 (1978).
12
18 James C. Hutson, The Bill of Rights: The Roger
Sherman Draft, in THIS CONSTITUTION 36 (1988). Even so, in
debate on the militia bill the following year, Sherman "conceived
it to be the privilege of every citizen, and one of his most essential
rights, to bear arms, and to resist every attack upon his liberty
or property, by whomsoever made. The particular states, like
private citizens, have a right to be armed . . . ." 14 DOCUMENTARY
HISTORY OF THE FIRST FEDERAL CONGRESS 92-3 (1995).
11
revised version of Madison's draft: "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."13
While "a free country" was changed to "a free
state," the adjective "free" was retained, thus
differentiating other textual uses of "State" to denote
the State governments.
In House debate, disagreement was expressed
to the wording of the militia declaration.14 The final
clause was amended to provide that the religiously
scrupulous would not be compelled to bear arms "in
person."15 No objection was expressed to the phrase
---
13
4 DOCUMENTARY HISTORY OF THE FIRST FEDERA L
CONGRESS 28 (1986). One writer saw the Committee
amendments as reflecting the proposals by Samuel Adams in the
Massachusetts ratification convention, which included "that the
said constitution be never construed to authorize Congress . . . to
prevent the people of the United States who are peaceable
citizens, from keeping their own arm s . . . ." 6 DOCUMENTARY
HISTORY OF THE RATIFICATION OF THE CONSTITUTION 1453 (2000).
14
Elbridge Gerry argued: "A well regulated militia being
the best security of a free state, admitted an idea that a standing
army was a secondary one." 11 DOCUMENTARY HISTORY OF THE
FIRST FEDERAL CONGRESS 1287-88 (1992).
15
Id. at 1309. See also id. at 1285-86.
12
"the right of the people to keep and bear arms."16
The Senate revised the House language to
render the militia clause more concise and delete the
objector clause: "A well regulated militia, being the
best security of a free state, the right of the people to
keep and bear arms, shall not be infringed."17 The
Senate rejected a proposal to add "for the common
defence" after "bear arms,"18 making clear that the
right was not limited to that purpose. The Senate
changed "the best security of a free state" to
"necessary to the security of a free state."19 The
Amendment had reached its final form.
Separately from the bill of rights, the Senate
considered structural amendments that affected the
federal-state balance. It rejected the following: "That
---
16
House Speaker Frederick A. Muhlenberg wrote that the
House version "takes in the principal Amendments which our
Minority had so much at Heart." CREATING THE BILL OF RIGHTS
280 (1991). The Minority in the Pennsylvania convention
proposed in part: "That the people have a right to bear arms for
the defense of them selves and their own state, or the United
States, or for the purpose of killing gam e; and no law shall be
passed for disarming the people or any of them, unless for crimes
committed, or real danger of public injury from individuals . . . ."
2 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE
CONSTITUTION 623-24 (1976).
17
JOURNAL OF THE FIRST SESSION OF THE SENATE 71
(1820).
18
Id. at 77.
19
Id.
13
each state, respectively, shall have the power to
provide for organizing, arming, and disciplining its
own militia, whensoever Congress shall omit or
neglect to provide for the same . . . ."20 This highlights
the distinction between the right of the people to have
arms and the state militia power.
In sum, the Second Amendment guarantees "the
right of the people," which includes residents of the
seat of government, to keep and bear arms. This in
turn promotes a well regulated militia, seen as
necessary for a free state's security.
C. The Freedmen's Bureau Act of 1866
Abolition of slavery nationwide by the
Thirteenth Amendment in 1865 did not end the
incidents of slavery, which Congress sought to
eradicate in 1866 with passage of the Civil Rights Act
and the Freedmen's Bureau Act. The latter declared
protection for the "full and equal benefit of all laws
and proceedings concerning personal liberty, personal
security, and . . . estate . . ., including the
constitutional right to bear arms . . . ."21 That text and
the debates on both are key to understanding how
Congress interpreted the Second Amendment only 75
---
20
Id. at 75.
21
14 Stat. 173, 176 (1866).
14
years after it became part of the Constitution in 1791.22
On January 5, 1866, Senator Lyman Trumbull
introduced S. 60, the Freedmen's Bureau Bill, and S.
61, the Civil Rights Bill.23 Both included among "civil
rights or immunities" the right "to have full and equal
benefit of all laws and proceedings for the security of
person and estate."24
To exemplify their concerns, Rep. Zachariah
Chandler endorsed the view that freedom for the
slaves required, among other things: "`The right of the
people to keep and bear arms' must be so understood
as not to exclude the colored man from the term
`people.'"25 Senator Charles Sumner noted a petition of
black South Carolinians "that they should have the
constitutional protection in keeping arms . . . and in
complete liberty of speech and of the press."26
After the Senate passed S. 60, the House
amended it to protect the civil right to "the security of
person and estate, including the constitutional right to
---
22
See A. Amar, The Bill of Rights & the Fourteenth
Amendment, 101 YALE L.J. 1193, 1245 n.228 (Apr. 1992);
STEPHEN P. HALBROOK , FREEDMEN, THE FOURTEENTH
AMENDMENT, & THER IGHT TO BEAR ARMS , 1866-1876, 1-55
(1998).
23
CONG . GLOBE , 39th Cong., 1st Sess. 129 (Jan. 5, 1866).
24
Id. at 209, 211 (Jan. 12, 1866).
25
Id. at 217 (Jan. 12, 1866).
26
Id. at 337 (Jan. 22, 1866).
15
bear arms."27 Senator Trumbull recommended that
the Senate concur, noting that the reference to the
right to bear arms "does not alter the meaning."28
As passed by both Houses, the Freedmen's
Bureau Bill provided that where judicial proceedings
were interrupted, military protection would be
extended to protect all person's "civil rights or
immunities," including "the right . . . to have full and
equal benefit of all laws and proceedings for the
security of person and estate, including the
constitutional right of bearing arms . . . ."29
President Andrew Johnson vetoed the
Freedmen's Bureau Bill, although his objections were
irrelevant to the right to bear arms.30 An override vote
barely failed.31
Meanwhile, the Fourteenth Amendment was
working its way through Congress. Senator Samuel
Pomeroy noted "safeguards of liberty," including: "He
---
27
Id. at 654 (Feb. 5, 1866), 688 (Feb. 6, 1866).
28
Id. at 743 (Feb. 8, 1866).
29
Id. at 748 (Feb. 8, 1866), 775 (Feb. 9, 1866) (passage);
1292 (Mar. 9, 1866) (text). Rep. William Lawrence quoted a
military order that "civil rights and immunities" included: "The
constitutional rights of all loyal and well disposed inhabitants to
bear arm s, will not be infringed . . . ." Id. at 908-09 (Feb. 17,
1866).
30
Id. at 916 (Feb. 19, 1866).
31
Id. at 943 (Feb. 20, 1866).
16
should have the right to bear arms for the defense of
himself and family and his homestead."32
In debate on the Civil Rights Bill, Rep. Bingham
explained that the provisions of the Freedmen's
Bureau Bill "enumerate the same rights and all the
rights and privileges that are enumerated in the first
section of this bill . . . ."33 As passed, the Civil Rights
Act recognized the right of each "to full and equal
benefit of all laws and proceedings for the security of
person and property, as is enjoyed by white citizens .
. . ."34
On May 23, Senator Jacob Howard introduced
the Fourteenth Amendment, referring to "the personal
rights guaranteed and secured by the first eight
amendments of the Constitution; such as . . . the right
to keep and bear arms. . . . The great object of the first
section of this amendment is, therefore, to restrain the
power of the States and compel them at all times to
respect these great fundamental guarantees."35
Also on May 23, the second Freedmen's Bureau
---
32
Id. at 1182 (Mar. 5, 1866).
33
Id. at 1291-92 (Mar. 9, 1866).
34
14 Stat. 27 (1866). This remains the law today. See 42
U.S.C. § 1981.
35
C ONG . G LOBE , 39th Cong., 1st Sess. 2765-66 (May 23,
1866).
17
Bill, H.R. 613, was debated.36 Rep. Eliot observed that
§ 8 which recognized "the constitutional right to bear
arms"37 "simply embodies the provisions of the civil
rights bill."38 He recited a report about black soldiers
returning home to Kentucky: "Their arms are taken
from them by the civil authorities . . . . Thus the right
of the people to keep and bear arms as provided in the
Constitution is infringed . . . ."39 This rendered the
freedmen "defenseless, for the civil-law officers disarm
the colored man and hand him over to armed
marauders."40
On May 29, the House passed the Freedmen's
Bureau Bill and then took up the Fourteenth
Amendment.41 As explained by Rep. George W. Julian,
the constitutional amendment was needed to uphold
the Civil Rights Act, which
is pronounced void by the jurists and
courts of the South. Florida makes it a
misdemeanor for colored men to carry
---
36
Id. at 2773 (May 23, 1866). The bill had been reported
by Rep. Eliot on behalf of the Select Committee on Freedmen's
Affairs. Id. at 2743 (May 22, 1866).
37
Id. at 3412 (June 26, 1866).
38
Id. at 2773 (May 23, 1866).
39
Id. at 2774.
40
Id. at 2775.
41
Id. at 2878 (May 29, 1866).
18
weapons without a license to do so from
a probate judge, and the punishment of
the offense is whipping and the pillory. .
. . Cunning legislative devices are being
invented in most of the States to restore
slavery in fact.42
Both Houses passed the second Freedmen's
Bureau Bill, which was again vetoed. The House
overrode the veto by 104 to 33, or 76%, 43 and the
Senate did so by 33 to 12, or 73%.44 As finally passed
into law, § 14 of the Freedmen's Bureau Act provided
that in States where judicial proceedings were
interrupted or which had not been restored to the
Union:
the right . . . to have full and equal
benefit of all laws and proceedings
concerning personal liberty, personal
security, and the acquisition, enjoyment,
and disposition of estate, real and
personal, including the constitutional
right to bear arms, shall be secured to
and enjoyed by all the citizens of such
State or district without respect to race
or color or previous condition of slavery.45
42
Id. at 3210 (June 17, 1866).
43
Id. at 3850 (July 16, 1866).
44
Id. at 3842.
45
14 Stat. 173, 176-77 (1866).
19
The same section extended military jurisdiction to all
cases "concerning the free enjoyment of such
immunities and rights."
The same more than two-thirds of Congress
which enacted this language also approved the more
general language of the Civil Rights Act and the
Fourteenth Amendment. Congress viewed the Second
Amendment as recognizing individual rights to all,
including freed slaves, and as not being limited to
militias, some of which violated such rights.
II. CONTINUATION OF A
CONSISTENT READING
A. Regulation in the District of Columbia
In legislating for the District of Columbia,
Congress has been sensitive to Second Amendment
rights.46 In 1892, Congress made it an offense in the
District to carry a pistol concealed about one's person,
with exemptions for one's place of business and
dwelling house, and a concealed carry permit available
on showing the "necessity" thereof.47
Quoting the Second Amendment, Senator Roger
---
46
See generally Stephen P. Halbrook, Second-Class
Citizenship and the Second Amendment in the District of
Columbia, 5 G EORGE M AS ON U NIVER S ITY C IVIL R IGHTS L AW
J OUR NAL , Nos. 1 & 2, 105 (1995).
47
27 Stat. 116 (1892). "Necessity" would be changed to
"necessary self-defense." 31 Stat. 1328 (1901).
20
Q. Mills objected: "You render the citizens of the
country more defenseless by depriving them of the
natural right to carry the arms which are necessary to
secure their persons and their lives."48 Senator
Edward O. Wolcott responded that "this bill is
intended to apply to the criminal classes. . . . It is not
intended to affect the constitutional right of any
citizen who desires to obey the law."49
In 1906, Congress authorized the District to
pass "all such usual and reasonable police regulations
. . . as they may deem necessary for the regulation of
firearms," which remains the sole enabling legislation
empowering it to regulate firearms.50 Yet the District's
prohibitions at issue are highly unusual and
unreasonable.51
Congress passed a comprehensive firearms act
for the District in 1932.52 It prohibited carrying a
concealed pistol on or about one's person without a
license, which would be issued to a person with good
reason to fear injury to his person or property or other
---
48
C ONG . R EC . 5788 (July 6, 1892).
49
Id. at 5789.
50
34 Stat. 808, 809 (1906). Codified at D.C. Code § 1-
303.43.
51
Other than the District, Chicago is the only other city
nationwide which bans handguns. In addition, not a single State
bans handguns.
52
47 Stat. 650 (1932).
21
proper reason.53 A person who was convicted of a
crime of violence could not possess a pistol.54
The Senate report noted that "the right of an
individual to possess a pistol in his home or on land
belonging to him would not be disturbed by the bill."55
The House report stated that it would "meet the
legitimate needs of all who are charged with the duty
of protecting and defending life and property as well as
those citizens who require firearms for protection or
for sport . . . ."56
The 1932 act has remained in place with various
amendments. In 1943, Congress made it unlawful for
a person to "carry either openly or concealed on or
about his person" a pistol, with exceptions for one's
home and business or under a permit.57 In 1953,
Congress extended the prohibition on possession of
pistols to all felons and to drug addicts.58
Elements of the above provisions passed by
Congress remain in Chapter 45 of the D.C. Code. The
provisions at issue were enacted by the District, and
they upset the balance enacted by Congress.
---
53
Id. at 651.
54
Id.
55
Senate Report 575, 72d Cong., 1st Sess., 3 (1932).
56
House Report 767, 72d Cong., 1st Sess., at 2 (1932).
57
57 Stat. 586 (1943).
58
67 Stat. 93, 94 (1953).
22
B. The Property Requisition Act of 1941
The Property Requisition Act of 1941, passed
just weeks before the attack on Pearl Harbor,
authorized the President to requisition property for
national defense. The Act declared that it must not be
construed "to authorize the requisitioning or require
the registration of any firearms possessed by any
individual for his personal protection or sport (and the
possession of which is not prohibited or the
registration of which is not required by existing law),"
or "to impair or infringe in any manner the right of
any individual to keep and bear arms . . . ."59 The
Report of the House Committee on Military Affairs
included this explanation:
It is not contemplated or even inferred
that the President, or any executive
board, agency, or officer, would trespass
upon the right of the people in this
respect. There appears to be no occasion
for the requisition of firearms owned and
maintained by the people for sport and
recreation, nor is there any desire or
intention on the part of the Congress or
---
59
P.L. 274, 55 Stat. 742 (Oct. 16, 1941). See generally
Stephen P. Halbrook, Congress Interprets the Second Amendment:
Declarations by a Co-Equal Branch on the Individual Right to
Keep and Bear Arms, 62 TENNESSEE LAW REVIEW 597, 618-31
(Spring 1995).
23
the President to impair or infringe the
right of the people under section 2 [sic] of
the Constitution of the United States,
which reads, in part as follows: `the right
of the people to keep and bear arms shall
not be infringed.' However, in view of
the fact that certain totalitarian and
dictatorial nations are now engaged in
the willful and wholesale destruction of
personal rights and liberties, our
committee deem it appropriate for the
Congress to expressly state that the
proposed legislation shall not be
construed to impair or infringe the
constitutional right of the people to bear
arms. . . . [T]here is no disposition on the
part of this Government to depart from
the concepts and principles of personal
rights and liberties expressed in our
Constitution.60
In debate, Rep. Edwin Arthur Hall of New York
noted: "Before the advent of Hitler or Stalin, who took
power from the German and Russian people, measures
were thrust upon the free legislatures of those
countries to deprive the people of the possession and
use of firearms, so that they could not resist the
encroachments of such diabolical and vitriolic state
police organizations as the Gestapo, the Ogpu, and the
---
60
Rpt. No. 1120 [to accompany S. 1579], House Committee
on Military Affairs, 77th Cong., 1st Sess., at 2 (Aug. 4, 1941).
24
Cheka." He opposed taking away "the individual
rights and liberties of citizens of this Nation by
depriving the individual of the private ownership of
firearms and the right to use weapons in the
protection of his home, and thereby his country."61
Senator Tom Connally of Texas favored "safeguarding
the right of individuals to possess arms."62
The conference committee deleted the ban on
registration, but kept the declaration against
infringing the right to bear arms.63 Rep. Paul Kilday
of Texas warned that "registration of firearms is only
the first step. It will be followed by other
infringements of the right to keep and bear arms until
finally the right is gone."64 The Second Amendment
protects "our right to bear arms as private citizens,"
Rep. Lyle H. Boren of Oklahoma stated.65
---
61
87 CONG. REC., 77th Cong., 1st Sess., 6778 (Aug. 5,
1941).
62
Id. at 6811 (Aug. 6, 1941).
63
Id. at 7097 (Aug. 13, 1941). Even so, Rep. A.J. May of
Kentucky explained that "the right to keep means that a man can
keep a gun in his house and can carry it with him . . . and the
right to bear arms means that he can go hunting . . . ." Id. at
7098.
64
Id. at 7101.
65
Id. See also id. at 7102 (Rep. John W. Patman of Texas)
("The people have a right to keep arms; therefore . . . they can
properly protect them selves."); id. at 7103 (Rep. John J.
Sparkman of Alabama) ("The Constitution guarantees to every
25
A motion to recommit the bill to committee
passed by 154 to 24,66 and the committee restored the
prohibition on firearm registration.67 As enacted into
law, the Property Requisition Act conditioned the
President's power to requisition property with military
uses as follows:
Nothing contained in this Act shall be
construed
(1) to authorize the requisitioning
or require the registration of any
firearms possessed by any individual for
his personal protection or sport (and the
possession of which is not prohibited or
the registration of which is not required
by existing law), [or]
(2) to impair or infringe in any
manner the right of any individual to
keep and bear arms . . . .68
Once again, at a critical time in American
history, the Congress clarified its understanding that
the Second Amendment guarantees individual rights.
---
citizen the right to keep and bears arms").
66
Id. at 7164 (Aug. 13, 1941).
67
Rpt. No. 1214, Conference Report [to accompany S.
1579], 77th Cong., 1st Sess., at 2 (Sept. 25, 1941).
68
P.L. 274, 55 Stat. 742 (1941).
26
C. The Firearms Owners' Protection
Act of 1986
In enacting the Gun Control Act of 1968,
Congress provided comprehensive regulations, but
rejected bills to prohibit or to require registration of
firearms.69 The Act declared:
it is not the purpose of this title to place
any undue or unnecessary Federal
restrictions or burdens on law-abiding
citizens with respect to the acquisition,
possession, or use of firearms appropriate
to the purpose of hunting, trap shooting,
target shooting, personal protection, or
any other lawful activity, and that this
title is not intended to discourage or
eliminate the private ownership or use of
firearms by law-abiding citizens for
lawful purposes.70
When experience proved the need for reform,
Congress enacted the Firearms Owners' Protection Act
of 1986 (FOPA). In doing so, Congress again declared
by law the individual character of the rights protected
by the Second Amendment:
The Congress finds that--
---
69
E.g., 114 C ONG . R EC . 22248-49 (July 19, 1968) (rejection
by House of bill to require registration of handguns); 27427 (Sept.
18, 1968) (rejection by Senate of bill to require registration of
firearms).
70
§ 101, P.L. 90-618, 82 Stat. 1213 (1968).
27
(1) the rights of citizens--
(A) to keep and bear arms under
the second amendment to the United
States Constitution; [(B)-(D) deleted] . . .
require additional legislation to correct
existing firearms statutes and
enforcement policies . . . .71
The finding that the Second Amendment
guarantees "the rights of citizens" to keep and bear
arms was supported by a scholarly report by the
Senate's Subcommittee on the Constitution, which
concluded that "the history, concept, and wording of
the second amendment to the Constitution of the
United States, as well as its interpretation by every
major commentator and court in the first half-century
after its ratification, indicates that what is protected
is an individual right of a private citizen to own and
carry firearms in a peaceful manner."72
The legislative record is replete with expressed
intentions to protect the Second Amendment rights of
---
71
§1(b), P.L. 99-308, 100 Stat. 449 (1986). It also
reaffirmed the above 1968 declaration.
72
The Right to Keep and Bear Arms: Report of the
Subcommittee on the Constitution, Senate Judiciary Committee,
97th Cong., 2d Sess., 12 (1982). See also David Caplan, Restoring
the Balance: The Second Amendment Revisited, 5 FORDHAM
URBAN L.J. 31 (1976), reprinted in 131 CONG. REC. S8692 (June
24, 1985); Stephen P. Halbrook, To Keep and Bear Their Private
Arms: The Adoption of the Second Amendment, 1787-1791, 10
N.K Y .L.R EV . 13 (1982), reprinted in 131 CONG. REC. S9105 (July
9, 1985).
28
individuals. As an example, FOPA preempted state
laws which prohibit interstate travel with lawful
firearms.73 Senator Steve Symms of Idaho explained:
"The intent of this amendment . . . is to protect the
second amendment rights of law-abiding citizens
wishing to transport firearms through States which
otherwise prohibit the possession of such weapons."74
Similarly, Rep. Tommy Robinson of Arkansas stated
that "our citizens have a constitutional right to bear
arms . . . and to travel interstate with those
weapons."75
The Firearms Owners' Protection Act passed the
Senate by a vote of 79 to 15, or 84%.76 The bill passed
the House by a vote of 292 to 130, or 69%.77
III. LEGISLATION IN THE 21ST CENTURY
A. Protection of Lawful Commerce in Arms Act
In the Protection of Lawful Commerce in Arms
Act of 2005 ("PLCAA"), Congress once again declared
the individual character of Second Amendment rights
---
73
18 U.S.C. § 926A.
74
131 CONG. REC. S9114 (July 9, 1985).
75
132 CONG. REC. H1695 (Apr. 9, 1986).
76
131 CONG. REC. S9175 (July 9, 1985).
77
132 CONG. REC. H1753 (Apr. 10, 1986).
29
and sought to preclude firearms, particularly
handguns, from being banned through litigation.78
Municipalities sued the firearms industry claiming
that the lawful manufacture and distribution of
firearms is a public nuisance. PLCAA begins with the
following Findings:
(1) The Second Amendment to the
United States Constitution provides that
the right of the people to keep and bear
arms shall not be infringed.
(2) The Second Amendment to the
United States Constitution protects the
rights of individuals, including those who
are not members of a militia or engaged
in military service or training, to keep
and bear arms.79
The lawsuits sought damages and injunctive
relief against the firearms industry for injuries caused
by criminals and other third parties who misuse
firearms.80 Yet the manufacture, possession, sale, and
use of firearms is strictly regulated by law.81 Besides
unreasonably burdening interstate and foreign
commerce, imposition of liability "threatens the
diminution of a basic constitutional right and civil
---
78
P.L. 109-92, 119 Stat. 2095 (2005).
79
Id., § 2(a).
80
Id., § 2(a)(3).
81
Id., § 2(a)(4).
30
liberty."82
Purposes of PLCAA include "to preserve a
citizen's access to a supply of firearms and
ammunition for all lawful purposes, including hunting,
self-defense, collecting, and competitive or recreational
shooting."83
Senator John Thune of South Dakota noted that
the bill protected law-abiding gun owners, dealers, and
manufacturers "who are having that second
amendment right infringed upon by those who are
trying to destroy an industry that, for a couple of
centuries now, has provided quality workmanship in
accordance with Federal and State laws."84 The bill
passed the Senate by a vote of 65 to 31, or just under
68%.85
Rep. Sam Graves of Missouri noted: "This law is
necessary to prevent a few state courts from
undermining our Second Amendment rights
guaranteed by the Constitution."86 Rep. Joe Schwarz
of Michigan averred that the Second Amendment's
purposes are: "First, to ensure that citizens would
have the tools to protect their families and their homes
and, second, to ensure that an armed militia could be
---
82
Id., § 2(a)(6).
83
Id., § 2(b)(2).
84
151 CONG. REC. S9378 (July 29, 2005).
85
Id. at S9396.
86
151 CONG. REC. H9006-07 (Oct. 20, 2005).
31
called up to defend the country in emergencies."87 The
bill passed the House by a vote of 283 to 144, or just
over 66%.88
B. Disaster Relief & Emergency
Assistance Act Amendment
In 2006, Congress amended the Robert T.
Stafford Disaster Relief and Emergency Assistance Act
to forbid confiscation of lawful firearms in disasters.89
The enactment prohibits any federal agent or person
receiving federal funds from seizing "any firearm the
possession of which is not prohibited under Federal,
State, or local law," from requiring "registration of any
firearm for which registration is not required by
Federal, State, or local law"; and from prohibiting a
firearm "in any place or by any person where such
possession is not otherwise prohibited by Federal,
State, or local law."90 An exception exists for the
temporary surrender of a firearm for entry in
transportation for rescue or evacuation.91 An
---
87
Id. at H9009.
88
Id. at H9010.
89
Department of Homeland Security Appropriations Act,
2007, Title IV, § 557, P.L. 109-295, 120 Stat 1355, 1391, 1392
(2006), codified at 42 U.S.C. § 5207.
90
42 U.S.C. § 5207(a).
91
42 U.S.C. § 5207(b).
32
individual aggrieved by a violation of this provision
has a private right of action against a person who
subjects the individual "to the deprivation of any of the
rights, privileges, or immunities secured by this
section."92
The bill passed the House as H.R. 5013, the
Disaster Recovery Personal Protection Act, by a vote
of 322 yeas and 99 nays,93 or 76%. As passed, the bill
included Findings recounting that in the wake of
Hurricane Katrina, law enforcement was overwhelmed
and citizens were threatened by criminal violence,
adding:
(4) Many of these citizens lawfully
kept firearms for the safety of
themselves, their loved ones, their
businesses, and their property, as
guaranteed by the Second Amendment,
and used their firearms, individually or
in concert with their neighbors, for
protection against crime.
(5) In the wake of Hurricane
Katrina, certain agencies confiscated the
firearms of these citizens in
contravention of the Second Amendment,
depriving these citizens of the right to
keep and bear arms and rendering them
helpless against criminal activity.
---
92
42 U.S.C. § 5207(c).
93
152 Cong. Rec. H5755, H5814 (July 25, 2006).
33
(6) These confiscations were
carried out at gunpoint by nonconsensual
entries into private homes, by traffic
checkpoints, by stoppage of boats, and
otherwise by force. . . .
(11) These confiscations and
prohibitions, and the means by which
they were carried out, deprived the
citizens of Louisiana not only of their
right to keep and bear arms, but also of
their rights to personal security, personal
liberty, and private property, all in
violation of the Constitution and laws of
the United States.94
H.R. 5013 was referred to the Senate and was
then inserted as an amendment to an appropriations
bill.95 As a drafting practice, appropriations bills do
not include findings, and the Findings in this bill were
thus deleted. But the bill remained grounded in the
Second Amendment. As explained by chief sponsor
Senator David Vitter (La.), "the language we do have
on the Senate floor . . . protects fundamental second
---
94
Id.
95
152 Cong. Rec. S7455, S7489 (July 13, 2006)
(amendment No. 4615 to H.R. 5441, which passed as the
Department of Homeland Security Appropriations Act, 2007,
supra).
34
amendment rights."96
In sum, this is yet another instance in which the
Congress enacted legislation to protect the
fundamental, individual right of law-abiding citizens
to keep and bear arms.
C. The D.C. Personal Protection Act Bill
Bills have been pending in Congress that would
repeal the provisions at issue here. The "District of
Columbia Personal Protection Act," a bill to restore
Second Amendment rights in the District of Columbia,
passed the House by a vote of 250 to 171 in 2004.97 In
the current session of Congress, similar pending bills
include S. 1001, sponsored by Senator Kay Bailey
Hutchison (R-Tex.), and H.R. 1399, sponsored by Reps.
Mike Ross (D-Ark.) and Mark Souder (R-Ind.).98
The Findings set forth in § 2 of each version of
the above bills include: "The Second Amendment to
the United States Constitution protects the rights of
individuals, including those who are not members of a
militia or engaged in military service or training, to
---
96
Id. at S7494. He added: "It [the Katrina emergency] is
exactly that very reason that this second amendment right to
bear arms and use legally possessed firearms in defense of
yourself, your life, and your property is so crucial . . . ." Id.
97
150 Cong. Rec. H7758, H7777 (Sept. 29, 2004).
98
S. 1001 currently has 44 bipartisan cosponsors, and H.R.
1399 currently has 242 bipartisan cosponsors
35
keep and bear arms." The District's law-abiding
citizens are deprived of handguns that are commonly
kept by law-abiding persons throughout the United
States for lawful defense, which exacerbates the
District's high murder rate. The Federal Gun Control
Act and the District's criminal laws currently punish
possession and use of firearms by felons. The Findings
conclude: "Legislation is required to correct the
District of Columbia's law in order to restore the
fundamental rights of its citizens under the Second
Amendment to the United States Constitution and
thereby enhance public safety."
Although the above bills have not been enacted
into law, the Findings represent yet another instance
in which a House of Congress expressed the view that
the Second Amendment protects individual rights.
IV. A HANDGUN BAN IS UNREASONABLE
ON ITS FACE, RENDERING A REMAND FOR
FURTHER PROCEEDINGS UNNECESSARY
Congress has historically viewed the Second
Amendment as protecting from infringement the right
of the people at large to keep and bear arms. It has
further regarded ordinary, commonly-possessed rifles,
handguns, and shotguns to be constitutionally-
protected arms. It has also passed regulations for
engaging in firearms businesses and to require
background checks on firearm transferees, and has
restricted certain dangerous categories of persons from
36
possession of firearms.99 None of these laws is called
into question by the lower court's limited holding.
The standard for whether a right is
"fundamental" is whether it is "explicitly or implicitly
protected by the Constitution, thereby requiring strict
judicial scrutiny." San Antonio Independent School
Dist. v. Rodriguez, 411 U.S. 1, 17 (1973). The right of
the people to keep arms is obviously such a right. Yet
even if this Court applied a lower "reasonableness" test
as the standard of review, the District's handgun ban
is unreasonable on its face. The lower court's
categorical approach in holding a prohibition on
handguns to be unconstitutional per se was correct.
Where Congress has sought to restrict certain
firearms, some of which may have other characteristics
which overlap with handguns, it has defined them in
terms of specific categories.100 A holding by this Court
that the District's pistol ban violates the Second
Amendment would not apply to such firearms which
are restricted under other categories.
This case involves nothing more than the right
of law-abiding persons to keep common handguns and
usable firearms for lawful self-defense in the home.
Accordingly, no purpose would be served by remanding
this case for further fact finding or other proceedings.
---
99
18 U.S.C. § 923 (licencing), § 922(t) (background checks),
and § 922(g) (prohibited persons).
100
E.g., 18 U.S.C. § 922(o) (non-grandfathered
machineguns), § 922(p) (firearms not detectable by X-ray).
37
CONCLUSION
This Court should affirm the judgment of the
court of appeals.
Respectfully submitted,
55 MEMBERS OF THE UNITED STATES SENATE, THE
PRESIDENT OF THE UNITED STATES SENATE, AND 250
MEMBERS OF THE UNITED STATES HOUSE OF
REPRESENTATIVES
AMICI CURIAE
STEPHEN P. HALBROOK*
10560 Main Street, Suite 404
Fairfax, VA 22030
(703) 352-7276
Counsel for Amici Curiae
*Counsel of Record
APPENDIX:
THOSE JOINING IN AMICI CURIAE BRIEF
The following members of the United States
Congress, and President of the United States Senate
Richard B. Cheney, join in this amici curiae brief:
Senate
Senator A. Lamar Alexander (TN, R)
Senator A. Wayne Allard (CO, R)
Senator John A. Barrasso (WY, R)
Senator Max S. Baucus (MT, D)
Senator Robert F. Bennett (UT, R)
Senator Christopher S. Bond (MO, R)
Senator Samuel D. Brownback (KS, R)
Senator James P. D. Bunning (KY, R)
Senator Richard M. Burr (NC, R)
Senator Robert P. Casey, Jr. (PA, D)
Senator C. Saxby Chambliss (GA, R)
Senator Thomas A. Coburn (OK, R)
Senator W. Thad Cochran (MS, R)
Senator Norman Coleman, Jr. (MN, R)
Senator Susan M. Collins (ME, R)
Senator Robert P. Corker, Jr. (TN, R)
Senator John Cornyn, III (TX, R)
Senator Larry E. Craig (ID, R)
Senator Michael D. Crapo (ID, R)
Senator James W. DeMint (SC, R)
Senator Elizabeth H. Dole (NC, R)
1a
Senator Pete V. Domenici (NM, R)
Senator Michael B. Enzi (WY, R)
Senator Russell D. Feingold (WI, D)
Senator Lindsey O. Graham (SC, R)
Senator Charles E. Grassley (IA, R)
Senator Judd A. Gregg (NH, R)
Senator Charles T. Hagel (NE, R)
Senator Orrin G. Hatch (UT, R)
Senator Kay Bailey Hutchison (TX, R)
Senator James M. Inhofe (OK, R)
Senator John H. Isakson (GA, R)
Senator Timothy P. Johnson (SD, D)
Senator Jon L. Kyl (AZ, R)
Senator Blanche L. Lincoln (AR, D)
Senator Melquiades R. Martinez (FL, R)
Senator John S. McCain, III (AZ, R)
Senator A. Mitchell McConnell (KY, R)
Senator Lisa A. Murkowski (AK, R)
Senator E. Benjamin Nelson (NE, D)
Senator C. Patrick Roberts (KS, R)
Senator Kenneth L. Salazar (CO, D)
Senator Jefferson B. Sessions, III (AL, R)
Senator Richard C. Shelby (AL, R)
Senator Gordon H. Smith (OR, R)
Senator Olympia J. Snowe (ME, R)
Senator Arlen Specter (PA, R)
Senator Theodore F. Stevens (AK, R)
Senator John E. Sununu (NH, R)
Senator Jon Tester (MT, D)
Senator John R. Thune (SD, R)
Senator David B. Vitter (LA, R)
Senator George V. Voinovich (OH, R)
2a
Senator James H. Webb, Jr. (VA, D)
Senator Roger F. Wicker (MS, R)
House of Representatives
Representative Robert B. Aderholt (AL-04, R)
Representative W. Todd Akin (MO-2, R)
Representative Rodney M. Alexander (LA-5, R)
Representative Jason Altmire (PA-4, D)
Representative Michael A. Arcuri (NY-24, D)
Representative Joe Baca (CA-43, D)
Representative Michele M. Bachmann (MN-6, R)
Representative Spencer T. Bachus, III (AL-6, R)
Representative Brian Baird (WA-3, D)
Representative Richard H. Baker (LA-6, R)
Representative J. Gresham Barrett (SC-3, R)
Representative John J. Barrow (GA-12, D)
Representative Roscoe G. Bartlett (MD-6, R)
Representative Joe L. Barton (TX-6, R)
Representative Marion Berry (AR-1, D)
Representative Judith B. Biggert (IL-13, R)
Representative Brian P. Bilbray (CA-50, R)
Representative Gus M. Bilirakis (FL-9, R)
Representative Robert W. Bishop (UT-1, R)
Representative Sanford D. Bishop (GA-2, D)
Representative Marsha W. Blackburn (TN-7, R)
Representative Roy D. Blunt (MO-7, R)
Representative John A. Boehner (OH-8, R)
Representative Josiah R. Bonner, Jr. (AL-1, R)
Representative Mary Bono Mack (CA-45, R)
Representative John N. Boozman (AR-3, R)
3a
Representative D. Daniel Boren (OK-2, D)
Representative Leonard L. Boswell (IA-3, D)
Representative Frederick C. Boucher (VA-9, D)
Representative Charles W. Boustany, Jr. (LA-7, R)
Representative F. Allen Boyd, Jr. (FL-2, D)
Representative Nancy Boyda (KS-2, D)
Representative Kevin P. Brady (TX-8, R)
Representative Paul C. Broun (GA-10, R)
Representative Henry E. Brown, Jr. (SC-1, R)
Representative Virginia Brown-Waite (FL-5, R)
Representative Vernon G. Buchanan (FL-13, R)
Representative Michael C. Burgess (TX-26, R)
Representative Danny L. Burton (IN-5, R)
Representative Stephen E. Buyer (IN-4, R)
Representative Kenneth S. Calvert (CA-44, R)
Representative David L. Camp (MI-4, R)
Representative John B. T. Campbell, III (CA-48, R)
Representative Christopher B. Cannon (UT-3, R)
Representative Eric I. Cantor (VA-7, R)
Representative Shelley M. Capito (WV-2, R)
Representative Dennis A. Cardoza (CA-18, D)
Representative Christopher P. Carney (PA-10, D)
Representative John R. Carter (TX-31, R)
Representative Steven J. Chabot (OH-1, R)
Representative A. Benjamin Chandler, III (KY-6, D)
Representative J. Howard Coble (NC-6, R)
Representative Stephen I. Cohen (TN-9, D)
Representative Thomas J. Cole (OK-4, R)
Representative K. Michael Conaway (TX-11, R)
Representative James H. S. Cooper (TN-5, D)
Representative Joseph D. Courtney (CT-2, D)
Representative Jerry F. Costello (IL-12, D)
4a
Representative Robert E. Cramer, Jr. (AL-5, D)
Representative Ander Crenshaw (FL-4, R)
Representative Barbara L. Cubin (WY-AL, R)
Representative R. Enrique Cuellar (TX-28, D)
Representative John A. Culberson (TX-7, R)
Representative Artur G. Davis (AL-7, D)
Representative David Davis (TN-1, R)
Representative Geoffrey C. Davis (KY-4, R)
Representative Lincoln E. Davis (TN-4, D)
Representative Thomas M. Davis, III (VA-11, R)
Representative J. Nathan Deal (GA-9, R)
Representative Peter A. DeFazio (OR-4, D)
Representative Charles W. Dent (PA-15, R)
Representative Lincoln Diaz-Balart (FL-21, R)
Representative Mario Diaz-Balart (FL-25, R)
Representative John D. Dingell (MI-15, D)
Representative Joseph S. Donnelly (IN-2, D)
Representative John T. Doolittle (CA-4, R)
Representative David T. Dreier (CA-26, R)
Representative Thelma D. Drake (VA-2, R)
Representative John J. Duncan, Jr. (TN-2, R)
Representative T. Chester Edwards (TX-17, D)
Representative Brad Ellsworth (IN-8, D)
Representative Jo Ann H. Emerson (MO-8, R)
Representative Philip S. English (PA-3, R)
Representative R. Terry Everett (AL-2, R)
Representative Mary C. Fallin (OK-5, R)
Representative Thomas C. Feeney, III (FL-24, R)
Representative Jeff Flake (AZ-6, R)
Representative J. Randy Forbes (VA-4, R)
Representative Jeffrey L. Fortenberry (NE-1, R)
Representative Virginia A. Foxx (NC-5, R)
5a
Representative Trent Franks (AZ-2, R)
Representative Elton W. Gallegly (CA-24, R)
Representative E. Scott Garrett (NJ-5, R)
Representative James W. Gerlach (PA-6, R)
Representative Gabrielle Giffords (AZ-8, D)
Representative Kirsten R. Gillibrand (NY-20, D)
Representative J. Phillip Gingrey (GA-11, R)
Representative Louis B. Gohmert, Jr. (TX-1, R)
Representative Virgil H. Goode, Jr. (VA-5, R)
Representative Robert W. Goodlatte (VA-6, R)
Representative Barton J. Gordon (TN-6, D)
Representative Kay M. Granger (TX-12, R)
Representative Samuel B. Graves, Jr. (MO-6, R)
Representative R. Eugene Green (TX-29, D)
Representative Ralph M. Hall (TX-4, R)
Representative Richard N. Hastings (WA-4, R)
Representative Robin C. Hayes (NC-8, R)
Representative Dean Heller (NV-2, R)
Representative T. Jeb Hensarling (TX-5, R)
Representative Walter W. Herger (CA-2, R)
Representative Stephanie M. Herseth Sandlin (SD-AL, D)
Representative Brian M. Higgins (NY-27, D)
Representative Baron P. Hill (IN-9, D)
Representative David L. Hobson (OH-7, R)
Representative Paul W. Hodes (NH-2, D)
Representative Peter Hoekstra (MI-2, R)
Representative T. Timothy Holden (PA-17, D)
Representative Kenny C. Hulshof (MO-9, R)
Representative Duncan L. Hunter (CA-52, R)
Representative Robert D. Inglis (SC-4, R)
Representative Darrell E. Issa (CA-49, R)
Representative R. Samuel Johnson (TX-3, R)
6a
Representative Timothy V. Johnson (IL-15, R)
Representative Walter B. Jones, Jr. (NC-3, R)
Representative James D. Jordan (OH-4, R)
Representative Steven L. Kagen (WI-8, D)
Representative Paul E. Kanjorski (PA-11, D)
Representative Richard A. Keller (FL-8, R)
Representative Ronald J. Kind (WI-3, D)
Representative Steven A. King (IA-5, R)
Representative John H. Kingston (GA-1, R)
Representative John P. Kline, Jr. (MN-2, R)
Representative Joseph C. Knollenberg (MI-9, R)
Representative J. Randy Kuhl, Jr. (NY-29, R)
Representative Douglas L. Lamborn (CO-5, R)
Representative Nicholas V. Lampson (TX-22, D)
Representative Thomas P. Latham (IA-4, R)
Representative Steven C. LaTourette (OH-14, R)
Representative Robert E. Latta (OH-5, R)
Representative C. Jeremy Lewis (CA-41, R)
Representative Ron E. Lewis (KY-2, R)
Representative John E. Linder (GA-7, R)
Representative Frank D. Lucas (OK-3, R)
Representative Daniel E. Lungren (CA-3, R)
Representative Cornelius H. McGillicuddy, IV (FL-14, R)
Representative Timothy E. Mahoney (FL-16, D)
Representative Donald A. Manzullo (IL-16, R)
Representative Kenny E. Marchant (TX-24, R)
Representative James C. Marshall (GA-8, D)
Representative James D. Matheson (UT-2, D)
Representative Kevin O. McCarthy (CA-22, R)
Representative Michael T. McCaul (TX-10, R)
Representative Thaddeus G. McCotter (MI-11, R)
Representative James O. McCrery, III (LA-4, R)
7a
Representative Patrick T. McHenry (NC-10, R)
Representative John M. McHugh (NY-23, R)
Representative D. Carmichael McIntyre, II (NC-7, D)
Representative Howard P. McKeon (CA-25, R)
Representative Cathy McMorris Rodgers (WA-5, R)
Representative Malcolm R. Melancon (LA-3, D)
Representative John L. Mica (FL-7, R)
Representative Michael H. Michaud (ME-2, D)
Representative Candice S. Miller (MI-10, R)
Representative Gary G. Miller (CA-42, R)
Representative Jefferson B. Miller (FL-1, R)
Representative Harry E. Mitchell (AZ-5, D)
Representative Alan B. Mollohan (WV-1, D)
Representative Jerry Moran (KS-1, R)
Representative Timothy F. Murphy (PA-18, R)
Representative John P. Murtha, Jr. (PA-12, D)
Representative Marilyn N. Musgrave (CO-4, R)
Representative Sue W. Myrick (NC-9, R)
Representative Robert R. Neugebauer (TX-19, R)
Representative Devin G. Nunes (CA-21, R)
Representative James L. Oberstar (MN-8, D)
Representative Solomon P. Ortiz (TX-27, D)
Representative Ronald E. Paul (TX-14, R)
Representative Stevan E. Pearce (NM-2, R)
Representative Michael R. Pence (IN-6, R)
Representative Collin C. Peterson (MN-7, D)
Representative John E. Peterson (PA-5, R)
Representative Thomas E. Petri (WI-6, R)
Representative Charles W. Pickering, Jr. (MS-3, R)
Representative Joseph R. Pitts (PA-16, R)
Representative Todd R. Platts (PA-19, R)
Representative L. Ted Poe (TX-2, R)
8a
Representative Earl R. Pomeroy (ND-AL, D)
Representative Jon C. Porter, Sr. (NV-3, R)
Representative Thomas E. Price (GA-6, R)
Representative Deborah D. Pryce (OH-15, R)
Representative Adam H. Putnam (FL-12, R)
Representative George P. Radanovich (CA-19, R)
Representative Nick J. Rahall, II (WV-3, D)
Representative Dennis R. Rehberg (MT-AL, R)
Representative David G. Reichert (WA-8, R)
Representative Richard G. Renzi (AZ-1, R)
Representative Silvestre Reyes (TX-16, D)
Representative Thomas M. Reynolds (NY-26, R)
Representative Ciro D. Rodriguez (TX-23, D)
Representative Harold D. Rogers (KY-5, R)
Representative Michael D. Rogers (AL-3, R)
Representative Michael J. Rogers (MI-8, R)
Representative Dana T. Rohrabacher (CA-46, R)
Representative Peter J. Roskam (IL-6, R)
Representative Ileana C. Ros-Lehtinen (FL-18, R)
Representative Michael A. Ross (AR-4, D)
Representative Edward R. Royce (CA-40, R)
Representative Paul D. Ryan (WI-1, R)
Representative Timothy J. Ryan (OH-17, D)
Representative John T. Salazar (CO-3, D)
Representative William T. Sali (ID-1, R)
Representative Jean Schmidt (OH-2, R)
Representative F. James Sensenbrenner, Jr. (WI-5, R)
Representative Peter A. Sessions (TX-32, R)
Representative John B. Shadegg (AZ-3, R)
Representative John M. Shimkus (IL-19, R)
Representative J. Heath Shuler (NC-11, D)
Representative William F. Shuster (PA-9, R)
9a
Representative Michael K. Simpson (ID-2, R)
Representative Adrian M. Smith (NE-3, R)
Representative Lamar S. Smith (TX-21, R)
Representative Mark E. Souder (IN-3, R)
Representative Zachary T. Space (OH-18, D)
Representative Clifford B. Stearns (FL-6, R)
Representative Bart T. Stupak (MI-1, D)
Representative John M. Sullivan (OK-1, R)
Representative Thomas G. Tancredo (CO-6, R)
Representative John S. Tanner (TN-8, D)
Representative G. Eugene Taylor (MS-4, D)
Representative Lee R. Terry (NE-2, R)
Representative W. McClellan Thornberry (TX-13, R)
Representative W. Todd Tiahrt (KS-4, R)
Representative Patrick J. Tiberi (OH-12, R)
Representative Michael R. Turner (OH-3, R)
Representative Frederick S. Upton (MI-6, R)
Representative Timothy Walberg (MI-7, R)
Representative Gregory P. Walden (OR-2, R)
Representative James T. Walsh (NY-25, R)
Representative Timothy J. Walz (MN-1, D)
Representative Zachary P. Wamp (TN-3, R)
Representative David J. Weldon, Jr. (FL-15, R)
Representative Gerald C. Weller (IL-11, R)
Representative Lynn A. Westmoreland (GA-3, R)
Representative W. Edward Whitfield (KY-1, R)
Representative Charles A. Wilson (OH-6, D)
Representative Heather A. Wilson (NM-1, R)
Representative Addison G. Wilson (SC-2, R)
Representative Robert J. Wittman (VA-1, R)
Representative Frank R. Wolf (VA-10, R)
Representative Donald E. Young (AK-A)
10a
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