Can DC Legally Stop Residents From Owning Handguns? (SCOTUS amicus brief)

The case of District of Columbia et al v. Dick Anthony Heller has put the question of the Second Amendment before the Supreme Court for the first time in more than half a century. In an amicus brief filed with the Court 15 historians argue that the DC law is consistent with the Amendment's history. An excerpt of the brief appears below.

The central question is whether the Second Amendment protects a private right to keep handguns and other firearms, independent of an individual’s membership in a state-regulated militia. As a problem for constitutional historians, the question can be elaborated and restated in this way: Did the framers and ratifiers of the Amendment believe they were constitutionally entrenching an individual right to keep arms for personal protection? Or did they conceive the Amendment to achieve a different end, by affirming that a “well-regulated militia” of citizen-soldiers would preserve “the security of a free state,” principally by lessening the need for a republican government to depend on a standing army?

Historians can best assess these claims by reconstructing the context within which the adopters of the Amendment acted. Recovering that context involves more than snatching a line from Blackstone’s Commentaries or Madison’s 46th Federalist, or ringing endless changes on the references to hunting and fowling in the Dissent of the Anti-Federalist minority in the Pennsylvania ratification convention. It instead involves explaining how a popular right to keep and bear arms figured in the ratification debates of 1787-1788; how that debate was in turn shaped by the Militia Clause of Art. I, §8; and why that clause appeared to threaten key Anglo-American political ideas dating to the Glorious Revolution of 1688-1689. Setting the context for the Second Amendment also requires exploring analogous provisions in the parliamentary Bill of Rights of 1689 and the declarations of rights that accompanied the first state constitutions.

Once explored, this context establishes that the private keeping of firearms was manifestly not the right that the framers of the Bill of Rights guaranteed in 1789. Though Anglo-American political tradition did indeed value the idea of an armed populace, it never treated private ownership of firearms as an individual right. The right stated in the seminal English Bill of Rights of 1689 vested not in individuals but in Parliament, which remained free to determine “by law” which Protestant subjects could own which weapons and how they could be used. Nor did the first American constitutions and declarations of rights include clauses protecting private use of firearms.

The right to keep and bear arms became an issue in 1787-1788 only because the Constitution proposed significant changes in the governance of the militia, an institution previously regulated solely by state law. Anti-Federalists argued that Congress would abuse its proposed authority to organize, arm, and discipline the militia by allowing that venerated institution to atrophy from neglect and lack of funding. A national government that could command permanent armed forces with its own resources would gain an engine for tyranny. Republican political thinking had long regarded standing armies as a danger to liberty, and a militia of citizen soldiers as one of its greatest bulwarks. Anti-Federalists rehearsed these arguments, and several ratification conventions—notably Virginia and New York—adopted resolutions affirming that the right to keep and bear arms, when tied to service in the militia, merited constitutional protection. Nothing in the ratification debates of 1787-1788, however, indicated that the exercise of this right required limiting the customary police powers of state and local government.

Federalist supporters of the Constitution dominated the First Congress that met in the spring of 1789. In framing the Second Amendment, they simultaneously sought to assuage the expressed Anti-Federalist concern about the maintenance of the militia while preserving congressional authority over its organization, arming, and discipline. They rejected language that would have modified that authority, including a qualifying provision, proposed by the House of Representatives, defining the militia as “composed of the body of the people.” Acceptance of that definition would impair congressional authority to determine how extensive membership in the militia should be.

Nothing in this argument challenges the idea that eighteenth-century Americans had ready access to firearms, or that they valued the concept of a well-armed citizenry. Individuals were legally free to purchase and keep weapons as they could other property; but like other forms of property, the keeping of firearms was subject to extensive legal regulation. What is at dispute is whether legal rights of private ownership were what the Second Amendment constitutionally entrenched. During this period, Americans were hardly shy about identifying and discussing such fundamental rights as representation, trial by jury, or freedom of conscience, or the natural rights to life, liberty, and property. The fact that references to the keeping of firearms are so few and terse, or that the modern academic controversy over the Second Amendment has been forced to squeeze so much modern interpretive blood from so few evidentiary turnips, is itself an indicator of how minor a question this was at the time. The same cannot be said about the role of the militia in the constitutional order. That was the subject that was patently in dispute in 1787-1789, and that is why the exceptional preamble to the Second Amendment is a true guide to its original meaning.

Even after the parliamentary Bill of Rights of 1689 allowed certain classes of Protestant subjects to keep arms, British constitutional doctrine and practice subjected the limited right therein recognized to extensive legal regulation and limitation.

The closest English antecedent to the American notion of a right to bear arms appears in the Bill of Rights, the parliamentary reenactment in December 1689 of the Declaration of Rights that the new monarchs, William and Mary, accepted seven months earlier after the Glorious Revolution forced James II to vacate his throne. Knowledgeable Americans were familiar with the Bill of Rights and the circumstances of its creation. Americans saw the English document as part of a common constitutional tradition, a binding pledge by the Crown to acknowledge the legal supremacy of Parliament and thereby respect the rights of the people.

That link between parliamentary supremacy and popular rights is critical to understanding the import of Article VII of the Bill of Rights, which provided “That the Subjects which are Protestants may have Armes for their defence Suitable to their Condition and as allowed by Law.” The formal grievance that Article VII answered was that James II had violated settled law “By causing several good Subjects being Protestants to be disarmed at the same time when Papists were both armed and Employed contrary to Law.” Bill of Rights (1689) reprinted in 5 The Founders’ Constitution 1-2 (Philip Kurland and Ralph Lerner, eds. 1987). The authors of the Bill of Rights were reacting to the efforts of Charles II and James II to maintain Stuart rule through a standing army increasingly officered and manned by Irish Catholics. Commissioning Catholics as military officers did indeed violate the Test Act, which required officeholders to swear an oath denying Catholic doctrine on transubstantiation. In the paranoiac atmosphere of the 1680s, James’s open practice of Catholicism and the birth of his male heir made the fear of a Catholic restoration all the more ominous.

The arms-bearing right that the Bill of 1689 affirmed, then, was a response to this specific situation, tied to the belief that an armed Protestant population would safeguard the realm against a Catholic restoration. It did not establish a general right of all persons to keep weapons, and especially firearms, for purposes of individual defense. An earlier version of Article VII could be read to grant the right to all Protestants. But that expansive possibility was checked when the House of Lords added the crucial qualifying language, “Suitable to their Condition and as allowed by Law.” (Lois Schwoerer, To Hold and Bear Arms: The English Perspective 76 Chicago-Kent L Rev. 30-48 (2000). The first qualification tracked a long history of legislation making the possession of weapons, and again especially firearms, dependent on the holders’ social and economic status. The second qualification was a reference to the Game Law of 1671, which allowed lords of manors to appoint gamekeepers to “take and seize all such guns” used by “divers disorderly persons” to hunt and trap “game intended to be preserved” for the higher classes of English society. 6 English Historical Documents 466-467 (Andrew Browning, ed., 1988). Adoption of the Bill of Rights did not affect Parliament’s capacity to regulate who could or could not possess firearms. In fact, when a new Game Act was adopted in 1693, the House of Commons rejected (169-65) a proposal allowing “every Protestant to keep a musket in his House for his defence not withstanding this or any other Act.” Many members voting had sat in Parliament in 1689; they evidently did not read Article VII as establishing a broad-gauged right all Protestants could claim. Schwoerer, Hold and Bear Arms, supra at 50-51.

The notion that Article VII made ownership of firearms a fundamental right immune to substantive regulation fails for a broader reason. The lasting constitutional significance of the Bill of Rights was not only to identify certain rights of the subject that merited protection, but also to lay down the basic premises that shaped British constitutionalism thereafter: that the monarch could not make law simply by royal edict, but that he must rule lawfully, with the consent of Parliaments freely elected and frequently assembled. The concept of parliamentary supremacy, as exercised through the king-in-Parliament, was the great principle the Bill of Rights vindicated. The liberty Englishmen cherished would be secured by confirming that a Parliament respectful of their rights and representative of society would have sovereign authority to make law. Article VII endorsed the idea that well-to-do Protestants might keep arms against the threat of a Catholic restoration, but as the formula “according to law” made clear, this imposed no limit on the reach of parliamentary power.

That understanding also informed a much-cited passage from Sir William Blackstone’s Commentaries (1765). “The fifth and last auxiliary right of the subject . . . is that of having arms for their defence, suitable to their condition, and such as are allowed by law,” Blackstone wrote, citing the Bill of Rights. This was “indeed, a publick allowance under due restraints, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.” 1 William Blackstone, Commentaries *139. Notwithstanding the reference to “self-preservation,” this passage cannot be construed to assert an unregulated private right of self-defense, for two reasons. First, Blackstone’s corpus of five “subordinate” or “auxiliary” rights involve the subject’s relation to public authority, respectively through the constitution of Parliament; the limitation on royal prerogative; access to courts of justice; the right to petition; and finally, the right to arms as a security against oppression. Id. at *136-139. Second, the phrases “suitable to their condition, and such as are allowed by law,” and “under due restraints” denote the regime of parliamentary regulation that the Bill of Rights made the fundamental principle of British constitutionalism. Blackstone was an unequivocal defender of that regime. “So long therefore as the English constitution lasts,” Blackstone wrote in the very next chapter, “we may venture to affirm, that the power of parliament is absolute and without control.” Id. at 157. Whatever principle the Bill of Rights stated always lay within the power of Parliament to apply and regulate, and thus to modify or limit. In this sense, the Bill of Rights did not establish a catalogue of rights in the modern, positivist, constitutionally-entrenched sense of the term. Like the clauses of Magna Carta, all of its provisions were subject to modification, control, and repeal by subsequent Parliaments. So long as Parliament sat, Blackstone envisioned no situation under which the auxiliary right of resistance could be invoked. ...

robertpaulsen said: "Well, we have the 5th Circuit and the DC Circuit on our side. "

I think you mean that the 5th Circuit and DC Circuit are on my side. Your "side" is that the Second Amendment only protects people who are members of a "well-regulated Militia". You're not on my side.

robertpaulsen said: "Geez Louise. That's why I don't answer your questions."

You do answer my questions. But I get a lot of DIFFERENT answers and many are WRONG. How can you state that the DC Circuit decision was not wrong in one posting and then turn around and say that the Supreme Court would be wrong to agree with it? Words have meanings, you know.

By the time World War II began, stocks of shotguns were too small to support the mobilization and new orders were placed. The well regarded Winchester Model 12 trench and riot guns were again procured with a total of more than 80,000 guns ordered by the U.S. Government by 1945, more than any other combat shotgun of the time. Collectors will notice that there was a change in the ventilated heat shield during WW II from the WW I design of six rows of holes to only 4 rows starting in 1942.

"If this was the case it would have been shown that short barreled shotguns are part of the military"

Yes, short barreled shotguns were and are part of the military. Prior to the Miller case, short barreled shotguns, called "trench guns" (below) were used in WWI. They were pump action and had a 20" barrel, sling swivels, barrel shroud, and bayonet mount.

But that doesn't describe Mr. Miller's weapon. His was more like:

I doubt that any court would conclude that Mr. Miller's weapon had a "reasonable relationship to the preservation or efficiency of a well regulated militia".

"Why on God's earth would one (and only the second) of the amendments deal with state rights?"

It doesn't. It deals with individual rights -- those individuals who are part of a well regulated state Militia.

robertpaulsen said: "You asked me how they SHOULD rule?"

My use of the word "should" was to invite you to carry out your own process to decide what decision an ideal Supreme Court would make, based on your own determination of what "ideal" would be.

You DID answer that the correct ruling would be that "the Second Amendment only protects people who are members of a well regulated Militia".

You posted: "I don't believe [the Second Amendment] protects the people of DC unless they're members of a well regulated Militia."

But you also posted, "I would never say the DC Circuit Court was wrong."

Now, why would you not say that the DC Circuit was WRONG? It is completely opposed to what you believe that an ideal Supreme Court SHOULD decide.

Well, like I said nuts and no commen sense. That is not a picture of the Miller weapon and it would have been germainder as to what it looked like. The second amendment does not say state malitia and all members of society that can be drafted are part of the malitia. The maliita act was note even passed by congress until several decades after the the Bill of Rights was ratified. All the other bill of rights from free speeech, assembly, trial by jury are not dependent upon a special membership in anything other than being a citizen. Only a vermin would offer such trite arguments who had an agenda to take away a basic right of self defense. Mo matter guns will always be part of life and society and any government that defies the basic right of the people will ultimately be pruned from the tree of liberty.

"You DID answer that the correct ruling would be"

I did not say "correct" or "incorrect". I did not say "right" or "wrong". You either stop this $hit or we are done.

You pressed me for an answer as to what they SHOULD rule. And I responded how the court SHOULD rule based on the various factors I listed.

"That is not a picture of the Miller weapon"

No, but it's close and it demonstrates the difference between a military weapon and one used by a criminal. It was described to the court as a sawed off "double barrel 12-gauge Stevens shotgun".

"The second amendment does not say state malitia"

It doesn't say it, but that's what it refers to.

"The maliita act was note even passed by congress until several decades after the the Bill of Rights was ratified"

The Militia Act of 1792 was passed one year after the Bill of Rights was ratified.

"Only a vermin would offer such trite arguments who had an agenda to take away a basic right of self defense"

Your individual gun rights are protected by your state.

robertpaulsen said: I did not say "correct" or "incorrect". I did not say "right" or "wrong". You either stop this $hit or we are done.

Then I guess we are "done", whatever that means.

If you post nonsense about the Second Amendment I intend to challenge it. You refuse to admit that the "right" and "correct" decision is the one that YOU would make. You have the attitudes of a four-year-old with far too much access to conflicting court cases.

robertpaulsen said: "Try challenging it without putting words in my mouth, twisting what I say, or substituting your words for mine."

Okay. I'll try.

From post 116: "I don't believe [the Second Amendment] protects the people of DC unless they're members of a well regulated Militia."

But somehow this does not mean that the DC Circuit was "wrong"? It does not mean that the DC Circuit was "incorrect"? It does not mean that the DC Circuit disagrees with you?

Words have meanings. When you clearly state what you believe the Second Amendment protects, and the DC Court says it means something different, then one of you, at the very least, is WRONG. And certainly, at the very least, one of you is INCORRECT. And certainly, YOU and the DC Court do not agree.

"When you clearly state what you believe the Second Amendment protects, and the DC Court says it means something different, then one of you, at the very least, is WRONG."

I would like you to clearly state what you believe this picture represents:

Be careful! You don't want to make the WRONG choice! Or the INCORRECT choice!

I see a dual color rectangular image which is intended to ambiguously present two possible visual interpretations;the outline is of a white chalice or the profiles of two black figures facing each other. Such figures are commonly encountered in psychology textbooks.

Is this your clever way of trying to say that YOUR understanding of the Second Amendment and that of the DC Court are just ways to view a genuinely ambiguous issue, and that there is no correct view of the Second Amendment? That you find the DC Court's decision regarding the meaning to be just as valid as yours?

No wonder you post so much nonsense.

robertpaulsen said: Your individual gun rights are protected by your state.

That is the dumbest response I could imagine. My right to bare arms is protected by the second amendment so it can't be taken away by any government period! Federal, State, Local, any form of government is prohibited from taking my right to bare arms away. Nor can the judicial branch, executive, or legislative. The second amendment affirms my inalienable right granted by God to self defense and the right perpetually to bare arms. It is the reason and the protection for free men in a free state.

Your thinking was the same as King George and he just didn't get it either until the bullets started flying at Concord and Lexington. My right to bare arms is not granted by government. It is a natural right granted by God and irrevocable. The bill of rights affirms those rights that government in any form can never infringe upon let alone take away. End of discussion!

You can pry my gun from my dead hands but you had better bring a lot of thugs with you because your gonna need them. The first will drop from 1,000 yards off and they will keep falling until you run out of thugs or I run out of ammunition which is not likely. Hundreds of thousands of free men will join me until the tree of liberty has no more thugs left standing in its shade.

"Is this your clever way of trying to say that YOUR understanding of the Second Amendment and that of the DC Court are just ways to view a genuinely ambiguous issue, and that there is no correct view of the Second Amendment? That you find the DC Court's decision regarding the meaning to be just as valid as yours?"

The courts interpret the U.S. Constitution. Ever since Marbury v Madison, their interpretation stands as the meaning.

Like the chalice/faces example, there is no right or wrong, correct or incorrect. It just is.

So If I was to tell you that I see four people and two dogs I would be neither correct nor incorrect because there just is four people and two dogs!
So all of your thoughts are neither correct nor incorrect they just are????????? Are what? Are your thoughts nothing?
The moon is really green cheese because “it just is.” According to you that is a correct statement.

robertpaulsen said: "Ever since Marbury v Madison, their interpretation stands as the meaning. "

So, if the Supreme Court contradicts the DC Court, then the DC Court decision will be WRONG?

And since the DC Court decision already contradicts the Miller Court, then the DC Court is already WRONG?

robertpaulsen said: "Ever since Marbury v Madison, ..."

What about prior to Marbury? Did the Constitution have no meaning simply because the Supreme Court had not claimed the role that they now claim?

If the Supreme Court ruled that involuntary servitude was legal in all cases, would that be the meaning of the Constitution?

Is there no Supreme Court ruling that would constitute tyranny?

Your latest postings explain a whole lot about you, but very little about the Constitution.

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