The Three Steps in D.C. v. Heller

It’s a pleasure to be back at Concurring Opinions. I much enjoyed guest blogging here last summer, and the management has been kind enough to invite me back for a few months to cover firearms law issues during the pendency of District of Columbia v. Heller, the landmark Supreme Court case on the Second Amendment right to arms. I’ll cover the briefing, the oral argument on March 18, and the decision, which will probably be issued at the end of the term in June. I also hope to discuss some other firearms law topics such as ConocoPhillips v. Henry, a legal challenge to an Oklahoma law giving employees the right to store their self-defense guns in their locked cars while at work.

On to Heller. I commented on the certiorari briefing during my stint last fall with the fine folks at PrawfsBlawg. This post discusses the merits brief filed by D.C. as petitioner. We’re waiting for Mr. Heller’s merits brief next week, and then his crowd of amici in the week to follow.

The general character of the District’s merits brief is what you’d expect of a lead brief in a Supreme Court case of this magnitude — polished, efficiently written, and in many respects reflective of skilled and thoughtful advocacy. What I want to do here is consider the litigating stance of the District in light of the “pressure points” in Heller — the key moves that each side is asking the Supreme Court to make.

Here’s the question presented in Heller, which the Justices themselves drafted as part of the certiorari grant [bracketed text mine]:

Whether the following provisions — D.C. Code §§ 7.2502.02(a)(4) [banning handguns], 22-4504(a) [banning gun carrying, including at home], and 7.2507.02 [requiring all guns to be both unloaded and locked or disassembled] — 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 question suggests that the Court has its eye on the right issues. It breaks down naturally into three interpretive steps: (1) Does the Second Amendment protect a right of individuals?

(2) If so, do individuals enjoy that right regardless of whether they are currently affiliated with a state-regulated militia organization?

(3) If so, then what purposes, of the various purposes for which individuals may wish to keep or bear arms, are constitutionally protected?

Heller wants the Court to answer “yes” to (1) and (2), and to give an answer to (3) that is broad enough to include the purpose of individual self-defense against violent crime. If Heller loses on (1) or (2), he loses his case. But if he wins on both (1) and (2), that may suffice to strike down some of the challenged D.C. gun prohibitions. If Heller prevails on all three steps, it’s almost certain that some of the challenged prohibitions will be held invalid, and Heller may well prevail across the board.

An individual right. Heller is in good shape on the first issue. Indeed, the District of Columbia has endeavored to distinguish its litigating position from the 1970s-style “pure collective rights” view of the Second Amendment. See, e.g., Pet. Br. at 19 (“The question is not whether individuals can enforce the right protected by the Second Amendment. The question instead is whether this right is limited to the possession of militia-related weapons.”); id. at 20 (“The District does not contend that individuals may not ‘keep’ their Arms, but that they may keep them only if they have a militia-related reason for doing so.”).

For several reasons — including the gravitational pull exerted on the Second Amendment by the obviously individual “rights of the People” referred to in the First, Fourth, Ninth and Tenth Amendments — the Supreme Court is likely to reject the pure collective-rights view.

That is itself significant. It would vindicate the view that the pure “collective rights” interpretation — endorsed by the Sixth and Ninth Circuits, and by a number of state supreme courts and commentators — was a blind alley. It will become a matter for reflection that respectable federal judges could once write like this about a constitutional provision that expressly recognizes a “right of the People to keep … Arms”:

Since the Second Amendment right ‘to keep and bear Arms’ applies only to the right of the State to maintain a militia and not to the individual's right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm. United States v. Warin, 530 F.2d 103 (6th Cir. 1976).

Is the individual right to arms conditional on the say-so of a government organization? There’s an odd brilliance to United States v. Miller, 307 U.S. 174 (1939). This brief, opaque opinion decided so little, yet has endured for 69 years as the Supreme Court’s last square pronouncement on the reach of the Second Amendment. Justice McReynolds accomplished his feat of judicial minimalism, in part, by strewing Miller with phrases and cites that give each side in the Second Amendment debate something to point to and something to worry about.

The worst passage in Miller for the District is the Supreme Court’s conclusion that the “militia” referred to in the Second Amendment’s prefatory clause was a popular militia: it historically included “all males physically capable of acting in concert for the common defense”; that its members were “civilians primarily, soldiers on occasion,” and — especially — that they were “expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U.S. at 179 (emphasis added).

That is hard to square with the District’s position that the Second Amendment “protects the possession and use of guns only in service of an organized militia.” Pet. Br. at 8 (emphasis added). In fact, the District’s brief declines to quote the actual language I’ve italicized from Miller above. It softens it by paraphrase as a requirement that militia members were to “obtain specified weaponry … and present [it] when directed.” Pet. Br. at 13.

“Keep.” The Amendment recognizes the right of the people not only to bear arms, but to keep them. “Keep” matters. Much of the Court of Appeals's decision in Parker v. D.C. actually rests on the conclusion that the D.C. gun bans at issue violated Dick Heller’s right to keep arms. See Parker, 478 F.3d at 400 (“[T]he pistol is the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family. … [T]he Second Amendment’s premise is that guns would be kept by citizens for self-protection (and hunting).”); id. (stating that “the District may not flatly ban the keeping of a handgun in the home”).

Proponents of a narrow interpretation of the Second Amendment have traditionally had a hard time with “keep.” It’s sometimes argued that “bear arms” has a specifically military meaning, so “keep” should be read as similarly limited. See Pet. Br. at 9, 16-17. But as Judge Silberman noted in Parker, the right is drafted conjunctively, and the issue is what additional effect to assign to one half of the conjunction. The idea of a “right of the People” to “keep arms” is so easily susceptible of an ordinary-language interpretation — viz., Americans are entitled to possess guns in their homes — that it remains an uphill battle to show that this right is really conditioned on some government organization’s say-so.

Moving into field goal range. So put together the populist conception of the militia in Miller with the text’s recognition of a right of the people to keep arms, and add the gravitational pull on the interpretation of the Second Amendment from the individual “right[s] of the People” in the First, Fourth, and Ninth Amendments. What do you get?

I think Mr. Heller will prevail on issue (2) as well as (1). He’ll convince a majority of the Court that there is an individual constitutional right, good against the federal government, for private citizens, who are not currently affiliated with a formal state or local militia organization, to keep firearms in their homes.

This might be enough to convince the Supreme Court to affirm the Court of Appeals’s invalidation of D.C. Code § 7-2502.02(a)(4), the handgun ban. As Judge Silberman reasoned, at least some kinds of handguns are clearly weapons “in common use” that have a reasonable relationship to militia service. (Consider the Beretta pistol at issue in U.S. v. Emerson — a common commercial firearm, frequently carried by police and legally armed citizens in America, essentially an identical copy of the U.S. military’s standard issue handgun.) The federal government, Parker concluded, can regulate handguns, but it cannot ban a whole class of common firearms with evident militia utility.

However, if this argument is accepted, there would still remain D.C. Code §§ 7-2507.02 and 22-4504, which embody the District’s ban on “keeping” firearms so that they are functional for self-defense — the prohibition of carrying handguns in the home, and the requirement that all guns be kept both unloaded and locked or disassembled, at least until an emergency arises (by which time it may well be too late to use the gun to defend oneself). Even the ban on handguns might, at a stretch, be defended on the ground that allowing rifles and shotguns is sufficient to render District citizens an effective militia. At one point, the District defends its handgun ban in light of District residents' remaining ability to "posses[s] ... shotguns and rifles." Pet. Br. at 54.

NOTE: “Some shotguns and rifles” would be more accurate. A different provision of D.C. law bans citizens from possessing any semi-automatic rifle or shotgun that holds 12 or more rounds, or, evidently, that can be fitted with a magazine that holds 12+ rounds. D.C. Code §§ 7-2501.01(10)(B), 7.2502.02(a)(2). Remarkably, D.C. law defines these thoroughly ordinary semi-automatic firearms as “machine guns.” Id. Since a semi-automatic gun is, by definition, not a fully automatic weapon like a machine gun, D.C.’s statute is hard to understand except as a reflection of legislative ignorance or deception — it’s like passing a statute that defines married men above 5’7” in height as “bachelors.” In any event, the Supreme Court can take judicial notice of these provisions of D.C.’s gun law. The “rifles and shotguns” response will have to be judged in light of the fact that D.C. actually bans virtually all semi-automatic rifles of militia value, too. With a nod to this weekend, we can say that the recognition of an individual right to keep arms will put Heller in field-goal range, but not yet across the line for a touchdown.

The critical inference. Issue (3) still remains: for what purposes are individuals constitutionally entitled to keep arms? Heller must convince the Supreme Court to draw the critical inference: that the constitutionally protected interests encompassed by the Second Amendment individual right to keep arms include keeping them for personal self-defense. This is what makes D.C.’s gun law seem so draconian to most American gun owners; this is the interest that D.C.’s laws so dramatically infringe. And in this context, the District emphasizes what is the most potentially troubling passage in Miller for Mr. Heller: the Supreme Court's statement that the operative clause of the Second Amendment (the right of the people to keep and bear arms) should be "interpreted and applied" with the militia purpose mentioned in its prefatory clause "in view."

What I call “the critical inference” is what Nelson Lund has called the “one hard question” in Heller. The District devotes much of the lead section of its brief on opposing the critical inference. See generally Pet. Br. at 11-35; see id. at 8 (denying that Second Amendment “entitles individuals to have guns for their own private purposes.”); id. at 15 (“Nothing about … the [Second Amendment]’s opening clause … so much as hints that the Amendment is about protecting weapons for private purposes.”); id. at 20 (“Respondent seeks to own a handgun for self-defense in his home. If the Frames had intended the Amendment to protect that use … they would have omitted the opening clause entirely and used non-military language rather than ‘bear Arms.’ ”); id. at 35 (“The Amendment does not protect — and was never intended to protect — a right to own guns for purely private use.”).

Heller and his amici will likely offer a wide range of arguments in favor of the critical inference. This post is very long, so I’ll note just one here: the argument, from classical liberal theorists like Locke and legal commentators like Blackstone, that the right to arms for public self-defense against tyranny arises from the same source as the right to personal self-defense against criminal force. Each right implicates the other. In essence, Heller will argue that the “right to arms” recognized by the Second Amendment should be read broadly enough to include a cluster of overlapping and philosophically related rights to public and private self-defense.

In other words, Mr. Heller will ask the Supreme Court to bring to the Second Amendment a fraction of the interpretive breadth that it has bestowed on the other provisions of the Bill of Rights:

• The First Amendment’s Establishment Clause appears merely to bar Congress from interfering with state religious establishments. However, it has been interpreted to confer a (fully incorporated) individual constitutional right to be free from religious establishment, complete with a custom-tailored exception to the taxpayer standing doctrine to encourage Establishment Clause challenges to legislative action.

• The First Amendment’s Free Speech Clause protects the “freedom of speech, [and] of the press.” It has been interpreted to protect the private possession of works of obscene pornography and at least some forms of virtual child pornography.

• The Fourth Amendment simply states that search warrants shall be subject to requirements of probable cause and particularity. It has been interpreted to presumptively require a warrant for any search or seizure, unless a specific exception applies.

• The Sixth Amendment states that a criminal defendant has the right “to have the Assistance of Counsel for his defense.” It has been interpreted to confer a right, not merely to receive assistance from retained counsel, but to have counsel appointed by the government, free of charge, if a defendant cannot otherwise afford it.

• The Eighth Amendment prohibits cruel and unusual punishment. Although statutes imposing the death penalty for serious felonies were common at the time of the Framing, the Eighth Amendment has been interpreted to prohibit capital punishment for the rape of an adult woman (and probably for child rape).

Heller touches on a ton of issues not mentioned in this post: federalism, Fourteenth Amendment incorporation, the status of the District of Columbia, the Solicitor General's amicus brief, and 2008 election politics among them. I hope to address at least some of these issues in future posts. I look forward to it.

I am so glad that these vital questions are going to the USSC before the liberal upheaval that could happen in the Court over the next few years.

I feel good about this. I agree with this excellent writer that Heller will almost certainly win on points 1 and 2, and if so, point 3 may write itself.

Of course, I expect some sort of "reasonable restrictions" language to be in the decision, the old bazooka/warhead arguments. But if we win, those "reasonable restrictions" will have to be viewed through a whole new set of glasses, and the decision will provide some more insulation against future bans the Dems will cobble together.

Making popcorn for a decision this year! Woo hoo!

I can not imagine in the birth of this Nation that the only authority to possess a firearm was embodied in the GOVERNMENT!

The revolutionary war started when the British soldiers marched to concord to seize the private shot, arms (rifles), gun powder, and cannons from the citizens.

The next US civil war will begin when the GOVERNMENT again attempts to seize private weapons from its citizens, either by US Supreme Court decree, Federal and State legislation, regulations, ordinances, or police power authority.

I would expect similar language in the decision, and that will lead to LOTS of litigation. Every anti-gun state and city will pass either new restrictions or amend old ones to state why they think said restriction is reasonable.

My ultimate hope for this case is that it leads to the repeal of Title 18, Section 922(o), the ban on post-5/19/86 machine guns. That ban is virtually an exact copy of the DC handgun ban (i.e. if you don't have a gun registered with the authorities by X date, then you can't ever register it and it is banned). Ah, but then the "reasonable restriction" argument will be used (along with such choice phrases as "engines of death," "killing machines," "weapons of war," etc.). But that last phrase, "weapons of war," may actually work to our favor. The Miller case basically stated that unless a gun had some utility in the militia, it wouldn't be protected - and since the Court had no "judicial notice" (i.e. evidence presented to it) that a sawed-off shotgun had such utility, Miller and we lost (of course, Miller was dead by the time the decision came down, but that's besides the point). Let's see the Court get away with stating that M4s, M16s, M249s, M2s, M14s, etc. have no such utility - it'll be impossible. 922(o) should fall within a couple of years, resulting in our ability to purchase new full autos for reasonable prices. Get a couple hundred thousand in the hands of the public, and would-be tyrants can kiss their despicable dreams of ruling this nation goodbye (and, after all, ain't that the reason for the 2nd Amendment?).

That, BTW, is exactly why the DOJ filed its despicable brief - the JBTs at the BATFE don't want the NFA registry opened up. They can't stand the idea of us mere citizens owning full autos - such weapons should be onlyfor our "betters," don't you know.

The revolutionary war started when the British soldiers marched to concord to seize the private shot, arms (rifles), gun powder, and cannons from the citizens.

And guns in the hands of private citizens is the only thing that enabled us to stay alive long enough against the Brits for the Froggies to aid us - AND THE FOUNDERS KNEW THIS VERY WELL. How any honest person could believe that the 2nd doesn't protect an individual right to own any weapon up to and including the current infantry weapons of whichever era you are in, is beyond me. Disagreeing with such a view is purely political or emotional, not logical.

I was just speaking with a friend last night about the '86 machine gun law. Said friend is arguably one of the most upstanding, law-abiding people I've ever met, and many of his friends are Sheriff's deputies. He is a person that no one could impugn as being anything other than a shining example of a citizen.

Anyway, his friend who is SWAT said he would build an AR-15 for my buddy. He has always wanted one. My friend told me he had requested it to be selective-fire like the SWAT guns, and he was going to pay the $200 tax.

Not so, said I. He can't make you one. It has to be semi-auto only. Unless you are actually law enforcement, and have the blessing of your chief, you can't have one made. You'll have to pay $10K for an old one. Sorry.

He was flummoxed. But, he said, he can pass the background check and pay the tax. So can I, but you can forget about having a $700 M-16 made for you. You're not an elite. That's the law.

That's ridiculous, he replied. I agree.

Well, you could also own one if you were a Class 3 dealer and persuaded a law-enforcement agency to test one out - then you could legally get a dealer sample and keep it. But good luck becoming a Class 3 dealer - first you have to get an FFL, which since Monica's ex-boyfriend became President is virtually impossible unless you go full time into the business. Oh, and if you manage that one, you can't pass it on to anyone not similarly situated OR one of the elite.

That's ridiculous, he replied.

It is also unconstitutional - as I hope the USSC will confirm a couple years down the line.

It is truly ironic that you and I can go buy an old full auto, but that the law now forbids the BATFE from collecting the $200 NFA tax on new guns. Ironic, not only because you can legally get a full auto (for a steep price, to be sure), but that the USSC has previously ruled that a tax provision in the law that regulates a basic constitutional right can only be valid if, in fact, the tax is collected. Go figure.

One area of information not mentioned in the article is the use of the phrase "the right of the people to keep and bear arms shall not be infringed" as it appears in many early state constitutions.

Nobody could reasonably claim that the individual states were assuring themselves of having the power to arm their organized militias by recognizing such a right.

Most of these references were ratified AFTER the Bill of Rights, clearly indicating that the right protected in the state constitutions was the same right mentioned in the Second Amendment.

Furthermore, several such constitutions contain language that further clarifies the meaning of the phrase. In Texas, I believe, and perhaps a couple of others, the expression of the right includes an explicit exception for regulating concealed carry. If it were really true that "the right of the people" did not include the right to carry concealed, then there would be no need for such an exception.

Illinois, I believe, uses the key phrase describing the right but modifies it with "Subject only to the police power", which phrase would be unneeded if the pre-existing right already permitted the exercise of such power.

The anti-gunners deserve a very bad day at the Supreme Court.

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