The Supreme Decision (Amicus filed to D.C. Gun Ban Case)

I don't know if this will post properly since I couldn't copy the pdf file. I found it interesting and informative to read the pro-2ndAmendment brief which was filed by 54 Senators and Senate President Dick Cheney in support of the D.C. District Court's decision on the D.C. gun laws.

Lots of great arguments for the proposition that the 2nd Amendment protects an individual right in the Amicus brief.

Apparently 54 Senators agree with the Amicus' conclusion that it does protect an individual right and not a corporate right of the state. That seems to bode well for the Senate to reject future proposed gun control laws that are certain to be introduced in a future Democrat majority Congress if Obama or Hillary win in November.

The best argument I’ve ever seen about the original intent of the 2nd Amendment. From an article I posted earlier...

“The Bill of Rights, then, as any history book will confirm, came into being to satisfy the single most suspicious, vociferous, and relentless foes of the new federal government.
That is the all-important context in which the Bill of Rights was created. The Anti-Federalists, men filled to varying degrees with fear, mistrust, and loathing of the new federal government, insisted on a bill of rights as additional shackles imposed on that new government. Knowing this alone, knowing that the famous Bill exists only to please those most apprehensive of the new government, definitively ends any confusion or debate surrounding the meaning of the Second Amendment.
There is simply no way on Earth the Anti-Federalists would have surrendered to the new and mistrusted government the right to own any gun they wanted at any time they wanted in any number they wanted.
To believe differently, to believe that the Second Amendment actually gives the federal government the authority to regulate firearms, one must believe the absolutely unbelievable. One must believe that the Anti-Federalists, fearing and loathing federal power, compelled Madison to compose this laundry list of rights, this list of things over which the government was to have no authority, and very near the very top of the list, these people in fear of the federal government desired a clause that reads, “Despite the fact that Article I, Section 8 prohibits you federal government people from infringing on our firearms rights, we hereby correct that mistake and surrender to you a right which we previously held, but wish now to give away.”
We must further believe that James Madison was such a monumentally incompetent and abysmal writer that, when trying to give the federal government this new authority to regulate the private ownership of firearms, the last fourteen words of the amendment read, “the right of the people to keep and bear arms shall not be infringed.”
We must also believe that revolutionary American history conceals some hitherto unknown and utterly undocumented groundswell of public desire for gun control.
Picture in your mind for a moment the rough-and-tumble individualist who gave birth to this nation, a man who had tamed a wilderness, fought Indian wars on and off for 180 years, and successfully faced down the world’s mightiest empire. Hold a picture of that man in your head for a moment and then try to imagine him being told that this new federal government would have the power to regulate his ownership of firearms in any manner it saw fit, including imprisoning him for possession of any firearm for any reason at any time.
No honest or serious man could ever claim to believe that any part of the American electorate desired federal gun control, let alone the Anti-Federalists who forced the creation of the Bill of Rights.”

That’s fine for lawyers who are used to reading that kind of paper, but I think it’s much easier for most other people to read and understand in the PDF file on the NRAILA linked site.

No honest or serious man could ever claim to believe that any part of the American electorate desired federal gun control, let alone the Anti-Federalists who forced the creation of the Bill of Rights.”

The problem is that the antigun crowd aren't honest or serious men, or women either as Sarah Brady exemplifies.

As an aside, I have an idea that would make the case moot in D.C., even though I’m in favor of individual gun rights in the rest of the country.

But D.C. itself should be a federal reservation. That is, the government should buy up the entire district and restore it to the quality our national capital should have.

The benefits would be lots of room for government buildings, monuments, memorials and open space. Security would be much better, vehicles could be limited to public transport and VIP only, with moving sidewalks to transport pedestrian traffic in high volume areas.

Other than foreign embassies, private concerns for hotels, restaurants, etc., would be leased.

So instead of a crime-ridden ghetto with filth and drugs, D.C. would be the idealized place it has long been imagined.

Let’s make the politicians more isolated and elitist than they are already. A shining city on a hill with no rif raf “citizens” allowed.

I might buy your idea if all government employees and politicians had to live out of the district.

So when do they lower the boom? Somehow I thought this would be settled in March.

To the shame of all the politicians and lawyers involved in D.C. v. Heller, regardless of the stream of insights concerning the 2nd A. as it relates to this case, pro and con, little mention is being made of the 14th Amendment, in my opinion. And when the 14th A. is mentioned, it is often only a passing reference to the 14th Amendment.

The truth of the matter is that no discussion of our 2nd A. protected personal rights is complete without an explanation of how it relates to the 14th Amendment. In fact, the bottom line where D.C. v. Heller and the 2nd A. is concerned is that this case was actually decided in favor of Heller when the 14th A. was ratified, in my opinion. More specifically...

John Bingham, the main author of Sec. 1 of the 14th Amendment, included the 2nd A. when he read the first eight amendments as examples of constitutional statutes containing privileges and immunities that the 14th A. applied to the states. So there is no doubt in my mind that the 2nd and 14th Amendments protect the right to keep and bear arms from the federal and state governments as much as any other personal right protected by other constitutional privileges and immunities.

See the 2nd A. in the middle column of the following page from the Congressional Globe, a precursor to the Congressional Record. The page is a part of one of Bingham's discussions about the 14th Amendment.

http://tinyurl.com/y3ne4n

Note that the referenced page is dated for more than two years after the ratification of the 14th Amendment. So Bingham was evidently reassuring his colleagues about the scope and purpose of the ratified 14th Amendment.

The bottom line is that pro-gun control (aka gun elimination) factions must lead the states to exercise their Article V power to amend the Constitution to loosen the "...shall not be infringed." wording of the 2nd A. in order to enforce gun-control laws to the extent that they are now doing or trying to do, in my opinion.

Actually, that is the idea. Residency only for the President, the VP and security personnel at the WH and Executive Office Building; foreign embassies; and short term stay hotels like the Watergate Complex.

Everyone else enters and leaves the city on a daily basis using public transportation. Temporary permits can be issued for tent camps in the parks as they are today.

Importantly, in the days of Woodrow Wilson, when he nationalized the railroads, every government bureaucrat who could, which was a lot of them, ordered their own personal railroad car to come to D.C. The resulting rail jam took almost two years to clear.

Therefore, the only private cars allowed in the district should be limited to the President, VP and cabinet with security; foreign ambassador owned vehicles; otherwise a limited, assigned fleet of government owned vehicles to transport court justices, senior bureaucrats, congressmen, dignitaries and as directed by the federal reservation authority.

While this would eliminate most of the private cars and trucks from the city, there would still be fleets of taxis and other conveyances.

Large parking and shuttle areas outside of the city would bring in the vast numbers of visitors that flow in and out on a daily basis. The lack of private vehicles is designed to *increase* the flow of the public into and out of the city.

The overall desired effect is to gentrify those parts of the city in disrepair, eliminate the ghetto areas, repair the infrastructure, expand the size of government buildings, clean up and keep the city cleaner, and get more of the public into and out of the city on a daily basis.

(Stamp comment New Stamp ThorntoS 1/14/2008 5:38:59 PM blank) No. 07-290 No. 07-290 s DISTRICT OF COLUMBIA, ET AL., PETITIONERS v. DICK ANTHONY HELLER ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BRIEF FOR THE UNITED STATES AS AMICUS CURIAE PAUL D. CLEMENT Solicitor General Counsel of Record ALICE S. FISHER Assistant Attorney General STEPHEN R. RUBENSTEIN JEFFREY S. BUCHOLTZ Chief Counsel Acting Assistant Attorney General Bureau of Alcohol, Tobacco, Firearms and Explosives GREGORY G. GARRE Department of Justice Deputy Solicitor General Washington, D.C. 20226-0001 MALCOLM L. STEWART Assistant to the Solicitor General Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 QUESTION PRESENTED QUESTION PRESENTED (I) In the Supreme Court of the United States No. 07-290 DISTRICT OF COLUMBIA, ET AL., PETITIONERS v. DICK ANTHONY HELLER ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BRIEF FOR THE UNITED STATES AS AMICUS CURIAE INTEREST OF THE UNITED STATES Congress has enacted numerous laws regulating firearms. Those statutes include restrictions on private possession of types of firearms that are particularly susceptible to criminal misuse. The United States has a substantial interest in the constitutionality and effective implementation of those laws. The United States also is responsible for prosecuting adult defendants charged with violating D.C. Code § 22-4504(a) (prohibiting carrying of pistol without license), and has frequently prosecuted adults charged with violating D.C. Code § 7-2502.01(a) (prohibiting possession of unregistered firearms). See generally D.C. Code § 23-101(c)-(d). (1) 2 2 1. Congress has enacted numerous laws governing the sale, transportation, and possession of various categories of firearms. a. Congress has generally prohibited the private possession of particularly dangerous types of firearms, including certain types of handguns. Possession of machineguns is generally prohibited by 18 U.S.C. 922(o), and the definition of “machinegun,” see 18 U.S.C. 921(a)(23); 26 U.S.C. 5845(b), encompasses some weapons that fall within the D.C.-law definition of “pistol.” See p. 4, infra. A similar restriction as to “semiautomatic assault weapon[s]” was in effect until 2004. See 18 U.S.C. 922(v)(1) (repealed 2004 pursuant to preexisting sunset provision). Federal law also restricts the possession of firearms—including handguns—that, under specified circumstances, are undetectable by metal detectors or x-ray machines. See 18 U.S.C. 922(p) (2000 & Supp. V 2005). b. Federal law also restricts the possession of firearms by various categories of individuals whom Congress has deemed unfit to possess such weapons. The most frequently applied provision generally prohibits the possession of firearms by any person “who has been convicted in any court of[] a crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. 922(g)(1). Section 922(g) also generally prohibits the possession of firearms by fugitives from justice; unlawful users of controlled substances; persons who have been adjudicated as mental defectives or committed to mental institutions; aliens illegally present within the United States; persons dishonorably discharged from the armed forces; persons who have renounced their United States citizenship; persons subject to restraining 3 3ner or child; and persons convicted of misdemeanor crimes of domestic violence (unless such convictions have been expunged, etc.). 18 U.S.C. 922(g)(2)-(9). In addition, Congress has prohibited the private possession of firearms at particular locations. See, e.g., 18 U.S.C. 930 (2000 & Supp. V 2005) (federal government facilities); 40 U.S.C. 5104(e)(1)(A) (Supp. IV 2004) (Capitol Grounds and Capitol Buildings); 49 U.S.C. 46505(b)(1) (“concealed dangerous weapon” “when on, or attempting to get on, an aircraft”). c. Federal law also regulates the manufacture, sale, and importation of firearms. The Gun Control Act of 1968 (GCA), Pub. L. No. 90-618, 82 Stat. 1213, prohibits any person from engaging in the business of importing, manufacturing, or dealing in firearms without a license. See 18 U.S.C. 923 (2000 & Supp. V 2005); see also 18 U.S.C. 922(a) (2000 & Supp. V 2005). The GCA also substantially restricts the importation of firearms and prohibits the receipt of firearms imported in violation of law. See 18 U.S.C. 922(l). d. In 2001, the Attorney General adopted the position that the Second Amendment protects an individual right to possess firearms for a lawful private purpose unrelated to service in a militia, and that such right— like other constitutional rights—is subject to reasonable restrictions. See U.S. Br. in Opp. at 19-20 n.3, Emerson v. United States, 536 U.S. 907 (2002) (No. 01-8780); id. at appendix (attaching Attorney General memorandum); U.S. Br. in Opp. at 5 n.2, Haney v. United States, 536 U.S. 907 (2002) (No. 01-8272). Consistent with that view and the Department’s enforcement responsibilities, the Attorney General made clear that the United States 4 4tionality, under the Second Amendment, of all existing federal firearms laws.” Attorney General memorandum. 2. This case involves four related gun-control measures applicable only in the District of Columbia. First, D.C. Code § 7-2502.01(a) generally makes it unlawful for any person to possess an unregistered firearm within the District. Second, D.C. Code § 7-2502.02(a)(4), which was enacted by the D.C. City Council in 1976, generally bars the registration of any “[p]istol,” which is defined as “any firearm originally designed to be fired by use of a single hand.” D.C. Code § 7-2501.01(12). Together, those provisions effectively ban the private possession of handguns, with relatively minor exceptions not implicated here. Third, D.C. Code § 22-4504 prohibits carrying a pistol without a license. Fourth, D.C. Code § 7-2507.02 requires that all lawfully owned fire- arms—both pistols and long guns—must be kept “unloaded and disassembled or bound by a trigger lock or similar device unless [the] firearm is kept at [the registrant’s] place of business.” 3. Respondent is a District of Columbia special police officer who is permitted to carry a handgun while on duty as a guard at the Federal Judicial Center. Pet. App. 4a. Wishing to possess a handgun in his home for the purpose of self-defense, respondent applied for a registration certificate. Id. at 4a, 120a. Relying on D.C. Code § 7-2502.02(a)(4), the D.C. government denied that application. Pet. App. 4a, 120a. Respondent (along with five other plaintiffs whose claims are not at issue here) then filed suit in federal district court under 42 U.S.C. 1983, challenging the constitutionality of the D.C. laws discussed above. Pet. App. 4a, 71a. 5 5fense within his own home, but is prevented from doing so only by [petitioners’] active enforcement of unconstitutional policies.” J.A. 51a. Respondent further alleged that the D.C. firearm provisions discussed above effectively prohibit “the private ownership and possession of handguns and functional firearms within the home” and therefore violate his rights under the Second Amendment. J.A. 57a. “At a minimum,” he contended, “the Second Amendment guarantees individuals a fundamental right to possess a functional, personal firearm, such as a handgun or ordinary long gun (shotgun or rifle) within the home.” J.A. 54a. The district court granted petitioners’ motion to dismiss the complaint. Pet. App. 71a-83a. The court held that the Second Amendment does not secure any “individual right to bear arms separate and apart from service in the Militia.” Id. at 83a; see id. at 73a-83a. The court concluded that, “because none of the plaintiffs have asserted membership in the Militia, plaintiffs have no viable claim under the Second Amendment.” Id. at 83a. 4. The court of appeals reversed. Pet. App. 1a-70a. a. Looking to the text, context, and history of the Second Amendment, the court of appeals held that the Second Amendment protects an individual right to keep and bear firearms unrelated to militia operations. Pet. App. 12a-44a. The court held that the Second Amendment applies to legislation enacted by the D.C. City Council, reasoning that “the Bill of Rights are in effect in the District.” Id. at 45a; see id. at 44a-48a. The court further held that, as applied to handgun possession in 6 6 The court of appeals adopted a two-part test, under which a particular weapon is a Second Amendment “Arm[]” if it (i) bears a “reasonable relationship to the preservation or efficiency of a well regulated militia,” and (ii) is “of the kind in common use at the time” the Second Amendment was adopted. Pet. App. 50a-51a (quoting United States v. Miller, 307 U.S. 174, 178, 179 (1939)). The court concluded that the handgun respondent sought to possess was covered under both of those prongs. Id. at 51a. The court rejected petitioners’ contention that, because D.C. law allows respondent to possess other types of firearms, the ban on handguns does not violate the Second Amendment. Id. at 53a. The court explained: “Once it is determined—as we have done—that handguns are ‘Arms’ referred to in the Second Amendment, it is not open to the District to ban them.” Ibid. The court further held that D.C. Code § 7-2507.02—the trigger-lock provision—is unconstitutional because it also “bars [respondent] from lawfully using a handgun for self protection in the home.” Pet. App. 55a.1 b. Judge Henderson dissented. Pet. App. 56a-70a. She would have held that, because the District of Colum- The court of appeals observed that, because respondent did “not claim a legal right to carry a handgun outside his home,” the court was not required to “consider the more difficult issue whether the District can ban the carrying of handguns in public, or in automobiles.” Pet. App. 54a. The court also appeared to accept the legitimacy of D.C.’s requirement that privately-owned firearms be registered. The court observed that such registration requirements “might be thought consistent with a ‘well regulated Militia’” because “[t]he registration of firearms gives the government information as to how many people would be armed for militia service if called up.” Id. at 52a. 7 7trict. See id. at 70a. SUMMARY OF ARGUMENT A. The court of appeals correctly held that the Second Amendment protects an individual right to possess firearms unrelated to militia operations. By its plain text, the Second Amendment secures a “right,” a term that the Constitution consistently uses to refer to individual freedoms rather than state prerogatives. The text also makes clear that the right is not limited to members of a select body (like today’s National Guard) but extends to “the people” generally. The Second Amendment’s placement within the Bill of Rights, and its use of a phrase (“the people”) that has acquired a settled meaning in surrounding constitutional provisions, reinforces the most natural reading of the Amendment’s text. The Second Amendment’s prefatory language, which refers to the “necess[ity]” of a “well regulated Militia,” does not negate the Amendment’s operative guarantee. It was common in constitutional and statutory provisions at the time of the Framing for prefatory language to identify a goal or principle of wise governance narrower than the operative language used to achieve it. The logical connection between militia operations and a general right of private gun ownership was particularly clear when the Second Amendment was adopted, since the Framing-era “Militia” was not a select body like today’s National Guard, but instead comprised the free white male citizenry of fighting age, whose members were expected to bring their own weapons when called to service. 8 8Although the court of appeals correctly held that the Second Amendment protects an individual right, it did not apply the correct standard for evaluating respondent’s Second Amendment claim. Like other provisions of the Constitution that secure individual rights, the Second Amendment’s protection of individual rights does not render all laws limiting gun ownership automatically invalid. To the contrary, the Second Amendment, properly construed, allows for reasonable regulation of firearms, must be interpreted in light of context and history, and is subject to important exceptions, such as the rule that convicted felons may be denied firearms because those persons have never been understood to be within the Amendment’s protections. Nothing in the Second Amendment properly understood—and certainly no principle necessary to decide this case—calls for invalidation of the numerous federal laws regulating firearms. When, as here, a law directly limits the private possession of “Arms” in a way that has no grounding in Framing-era practice, the Second Amendment requires that the law be subject to heightened scrutiny that considers (a) the practical impact of the challenged restrictions on the plaintiff’s ability to possess firearms for lawful purposes (which depends in turn on the nature and functional adequacy of available alternatives), and (b) the strength of the government’s interest in enforcement of the relevant restriction. Cf. Burdick v. Takushi, 504 U.S. 428, 434 (1992). Under that intermediate level of review, the “rigorousness” of the inquiry depends on the degree of the burden on protected conduct, and important regulatory interests are typically sufficient to justify reasonable restrictions. Ibid. 9 9sion could be read to hold that the Second Amendment categorically precludes any ban on a category of “Arms” that can be traced back to the Founding era. If adopted by this Court, such an analysis could cast doubt on the constitutionality of existing federal legislation prohibiting the possession of certain firearms, including machineguns. However, the text and history of the Second Amendment point to a more flexible standard of review. Just as the Second Congress expressed judgments about what “Arms” were appropriate for certain members of the militia, Congress today retains discretion in regulating “Arms,” including those with military uses, in ways that further legitimate government interests. Under an appropriate standard of review, existing federal regulations, such as the prohibition on machineguns, readily pass constitutional muster. C. Given that the D.C. Code provisions at issue ban a commonly-used and commonly-possessed firearm in a way that has no grounding in Framing-era practice, those provisions warrant close scrutiny under the analysis described above and may well fail such scrutiny. However, when a lower court has analyzed a constitutional question under a standard different from the one adopted by this Court, the Court’s customary practice is to remand to permit further consideration (and any appropriate fact finding or legal determinations) by the lower courts in the first instance. Several factors counsel in favor of following the Court’s customary practice here, particularly the lack of case law from this Court fleshing out the potentially relevant doctrines and sub- doctrines that might inform the Second Amendment analysis. Accordingly, after taking the foundational 10 steps discussed above, the better course would be to remand the case for further proceedings consistent with the Court’s opinion. ARGUMENT As the court of appeals correctly held, the Second Amendment protects an individual right to possess firearms, including for private purposes unrelated to militia operations. But like other constitutional rights, that individual right is subject to reasonable restrictions, must be applied in light of context and history, and does not provide any protections to individuals who have never been understood to be within the Amendment’s protections. The D.C. laws at issue here ban a commonly- used and commonly-possessed firearm. The ban is not unconstitutional just because it takes a categorical approach, but it is subject to heightened judicial scrutiny. This Court should affirm the court of appeals’ threshold determination that the Second Amendment protects an individual right, but it should adopt a more flexible standard of review. A. THE SECOND AMENDMENT PROTECTS AN INDIVIDUAL RIGHT TO POSSESS FIREARMS, INCLUDING FOR PURPOSES UNRELATED TO MILITIA OPERATIONS The Second Amendment states: “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.” Relying primarily on the Amendment’s prefatory language, petitioners contend that the Second Amendment “protects the possession and use of guns only in service of an organized militia.” Pet. Br. 8; see id. at 11-35. That is incorrect. 11 1. The Text Of The Second Amendment, And Its Placement Within The Bill of Rights, Strongly Indicate That The Amendment Protects An Individual Right a. As the court of appeals explained, “[i]n determining whether the Second Amendment’s guarantee is an individual one, or some sort of collective right, the most important word is the [term] the drafters chose to describe the holders of the right—‘the people.’” Pet. App. 18a. The term “the people” would not naturally be used to refer to a select body like today’s National Guard. Rather, as used in the Bill of Rights, it is a “term of art” that “refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990). The Second Amendment’s use of the word “right” is likewise highly significant. “Setting aside the Second Amendment, not once does the Constitution confer a ‘right’ on any governmental entity, state or federal. Nor does it confer any ‘right’ restricted to persons in governmental service, such as members of an organized military unit.” Whether the Second Amendment Secures an Individual Right, Op. Off. Legal Counsel 11 (Aug. 24, 2004) (OLC Opinion) . Rather, the Constitution consistently uses the term to secure the rights of individuals as against governmental overreaching. See ibid. “It would be a marked anomaly if ‘right’ in the Second Amendment departed from such uniform usage throughout the Constitution.” Ibid. b. The placement of the Second Amendment within the Bill of Rights, and particularly within Amendments One to Four (Three to Six, as proposed), reinforces the 12 most natural reading of the Amendment’s text. The surrounding Amendments are unambiguously intended, and have consistently been construed, to place particular spheres of individual private activity beyond the reach of the national government. See Pet. App. 22a; OLC Opinion 35-36. If the purpose of the Second Amendment were to define the respective prerogatives of the federal and state governments with regard to collective military action, its placement would be odd indeed. That is particularly so because the federal-state division of authority over militia operations had already been addressed by Article I, Section 8, Clause 16 of the Constitution, which had taken effect only 15 months before the Bill of Rights was submitted to the States for ratification. See OLC Opinion 39. In addition, the Framers’ use of the phrase “the people” in the Second Amendment is consistent with their use of that “term of art” in other provisions of the Bill of Rights—the First and Fourth Amendments—that unquestionably protect individual rights. See Verdugo- Urquidez, 494 U.S. at 265. The basic structure of the Second Amendment is also similar to other provisions, like the Fourth Amendment, that protect individual rights. While each individual right guaranteed by the Constitution must be interpreted in its own light, it is telling that the wording of the Second Amendment comports with other Bill of Rights provisions long understood to secure individual rights. c. It is also significant that the Second Amendment refers, not to “a right of the people,” but to “the right of the people to keep and bear Arms.” The Framers’ use of the definite article indicates that the Amendment was intended to secure a pre-existing right rather than to create a new one. See Pet. App. 20a. Because the gov 13 ernment of England did not have a federal structure, and because the Constitution was intended to refashion the division of authority between the state and national governments, a constitutional provision defining the respective state and federal roles in the sphere of militia operations could not plausibly have been viewed as protecting some pre-existing right. Rather, the pre-existing right secured by the Second Amendment could only have been the common-law right to possess firearms, which was not limited to possession for collective purposes. See pp. 17-19, infra; Pet. App. 21a. In Robertson v. Baldwin, 165 U.S. 275 (1897), this Court explained: The law is perfectly well settled that the first 10 amendments to the constitution, commonly known as the “Bill of Rights,” were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain well-recognized exceptions, arising from the necessities of the case. In incorporating these principles into the fundamental law, there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed. Thus, the freedom of speech and of the press (article 1) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; [and] the right of the people to keep and bear arms (article 2) is not infringed by laws prohibiting the carrying of concealed weapons. 14 Id. at 281-282. The Court in Robertson thus read the Second Amendment in pari materia with other Bill of Rights provisions that indisputably protect individual freedoms, and it construed the Amendment as securing a pre-existing right “inherited from our English ancestors”— a right that was individual in nature and wholly unrelated to the distinct federal structure created by the Constitution.2 2. The Second Amendment’s Reference To The Necessity Of A “Well Regulated Militia” Does Not Limit The Substantive Right That The Amendment Secures In arguing that the individual right protected by the Second Amendment may be exercised only in connection with militia operations, petitioners emphasize that the Amendment’s prefatory language “speaks only of militias, with not a hint about private uses of firearms.” Br. 8. Petitioners’ reliance on that language is misplaced. a. The Second Amendment’s prefatory language (“A well regulated Militia, being necessary to the security of a free State”) reflects that the Framers regarded the furtherance of militia operations as a particularly salient benefit of private firearm ownership, but it does not limit the scope of the Amendment’s substantive guarantee. While protection of the militia was a principal object The Robertson Court’s reference to concealed-weapon bans as evincing the qualified nature of the Second Amendment right further indicates that Court did not view the basic right as limited to firearm possession in furtherance of militia service. If the Court had so understood the Second Amendment, it would presumably have identified the requirement of militia-relatedness as the major limiting principle. The Robertson Court’s analysis likewise bolsters the court of appeals’ conclusion that the Second Amendment, no less than other provisions of the Bill of Rights, is applicable to the District of Columbia. See note 5, infra. 15 of the Second Amendment, the Framers sought to achieve that goal not by defining a new right limited to active militia service or even to militia members, but by giving constitutional status to the pre-existing common- law “right of the people to keep and bear Arms.” As Thomas M. Cooley explained, “[t]he meaning of the [Second Amendment] undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose.” Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America 297-298 (1898). At the time the Second Amendment was adopted and ratified, moreover, “[i]t was quite common for prefatory language [in constitutional or statutory provisions] to state a principle of good government that was narrower than the operative language used to achieve it.” Pet. App. 34a; see Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. Rev. 793, 814-821 (1998) (listing examples roughly contemporaneous with the Second Amendment); OLC Opinion 20. The interpretive significance of such prefatory language was well established. To the extent that a particular provision’s substantive scope was otherwise unclear, the prefatory language could be used to resolve the ambiguity; but an introductory declaration or statement of purpose could not supersede the plain meaning of the operative guarantee. See ibid.; United States v. Emerson, 270 F.3d 203, 234 n.32 (5th Cir. 2001), cert. denied, 536 U.S. 907 (2002). Cf. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998) (explaining that “statutory prohibitions often go beyond the principal evil” that motivated the law); Gonzales v. Oregon, 546 U.S. 243, 288 (2006) (find 16 ing “no reason to think” that a statute’s “principal concern” is its “exclusive concern”). b. If the term “well regulated Militia” is understood to refer to a select corps akin to today’s National Guard, protection of “the right of the people to keep and bear Arms” might appear to be an extravagant means of furthering militia operations. See Antonin Scalia, A Matter of Interpretation 137 n.13 (1997) (explaining that, if the Second Amendment term “Militia” is construed to refer to a select body, the Amendment “produces a guarantee that goes far beyond its stated purpose”). The Framers, however, had a much broader conception of the militia. See, e.g., Act of May 8, 1792 (Second Militia Act), ch. 33, § 1, 1 Stat. 271; Pet. App. 29a; OLC Opinion 27. As this Court has explained, “[t]he signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense.” United States v. Miller, 307 U.S. 174, 179 (1939). The Court further explained that “ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” Ibid. Given the composition of the militia and the manner of its armament at the time the Second Amendment was ratified, no sharp distinction could have been drawn between private and militia-related gun possession. While the Founding-era militia was not entirely coextensive with “the people” at large, extending the Second Amendment’s substantive protections to the general populace is consistent with the scope of the surrounding provisions of the Bill of Rights and directly furthers militia 17 operations as well. There is consequently no reason to suppose that the Amendment’s drafters intended either “Militia” or “the people” to be given anything other than its prevailing construction at the time the Amendment was adopted.3 c. In three related respects, the Framers regarded the individual right protected by the Second Amendment as central to the preservation of liberty. First, the Framers’ view that a “well regulated Militia” was “necessary to the security of a free State” was not based simply on a belief that the militia would be effective in preventing insurrection or invasion. In addition, many expressed profound concern that the obvious alternative mechanism for averting such dangers—a large standing army—would facilitate oppression by the federal government. Preservation of the militia was seen as a means of reducing the need and the rationale for such a force. See, e.g., Emerson, 270 F.3d at 240, 272; OLC Opinion 66-67 (discussing, inter alia, amendment proposed by Virginia convention expressly linking Under current federal law, the “militia of the United States” includes “all able-bodied males at least 17 years of age and * * * under 45 years of age” who are United States citizens or have declared their intention to become citizens, as well as female citizens who are members of the National Guard. 10 U.S.C. 311(a); see D.C. Code § 49-401 (defining D.C. militia). The requirements that each militia member procure appropriate weaponry, imposed by statute for the first century of the Republic, were repealed in 1901. See Perpich v. DoD, 496 U.S. 334, 341 (1990). The militia is now divided into the “organized militia,” which consists of the National Guard and the Naval Militia, and the “unorganized militia,” which includes all other members. 10 U.S.C. 311(b)(1) and (2). While membership in the militia no longer entails a legal obligation to possess firearms, militia members are potentially subject to being called to service in specified (albeit highly unusual) circumstances. See 10 U.S.C. 331, 332. 18 right to keep and bear arms with concerns over standing armies). As Alexander Hamilton explained, “[i]f the federal government can command the aid of the militia in those emergencies which call for the military arm in support of the civil magistrate, it can the better dispense with the employment of a different kind of force.” The Federalist No. 29, at 183 (Clinton Rossiter ed. 1961). Second, Framing-era discussions of the need for the Second Amendment frequently described an armed citizenry as a deterrent to abusive behavior by the federal government itself. See, e.g., Emerson, 270 F.3d at 237-240; Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637, 649 (1989). Justice Story stated that “[t]he right of the citizens to keep, and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist, and triumph over them.” Joseph Story, Commentaries on the Constitution of the United States § 1001, at 708 (1987). In that regard, the Framers frequently contrasted American society with the perceived tendency of European governments to disarm their populations in order to facilitate oppressive rule. See, e.g., The Federalist No. 46, at 299 (James Madison); Emerson, 270 F.3d at 240 n.53; OLC Opinion 63 n.258. Third, the Anglo-American common-law tradition recognized the importance of private firearm possession as a bulwark against private depredations. Thus, Black- stone identified the three “principal or primary” rights of English subjects as “the right of personal security, the right of personal liberty, and the right of private property.” 1 William Blackstone, Commentaries *129. 19 Blackstone further recognized, however, that the recognition of those principal rights would be illusory “if the constitution had provided no other method to secure their actual enjoyment.” Id. at *140-*141. Among the “auxiliary” rights that Blackstone recognized as necessary to preserve those primary rights was the right of English subjects “of having arms for their defence, suitable to their condition and degree, and such as are allowed by law.” Id. at *143-*144. Blackstone described the right to possess arms as “a public allowance under due restrictions, 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.” Id. at *144. Thus, by constitutionalizing the preexisting common-law right to possess firearms, the Second Amendment served in part to protect the individual’s lawful right to possess a firearm for self-defense.4 In Miller, the Court observed that the Second Amendment should be “interpreted and applied” in light of what the Court described as the “obvious purpose to assure the continuation and render possible the effectiveness of [militia] forces.” 307 U.S. at 178. Applying that principle, the Court rejected a challenge to federal restrictions on the licensing and control of sawed-off shotguns given “the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia.” Ibid. Although the Court did not expressly address the issue, the decision in Miller is consistent with the conclusion that the Second Amendment confers an individual right of some character. Indeed, the Court considered Miller’s Second Amendment claim without suggesting, much less holding, that he had no basis to press such a claim. In addition, the Court did not place any significance on whether the underlying indictment in Miller alleged that the defendants were involved in any military or militia service (which it did not). See Emerson, 270 F.3d at 224-227. Although the Court’s decision (following the government’s own brief in Miller) supports a mode of analysis that 20 B. LIKE RIGHTS CONFERRED BY SURROUNDING PROVISIONS OF THE BILL OF RIGHTS, THE INDIVIDUAL RIGHT GUARANTEED BY THE SECOND AMENDMENT IS SUBJECT TO REASONABLE RESTRICTIONS AND IMPORTANT EXCEPTIONS For the reasons stated above, the court of appeals was correct in concluding that the Second Amendment protects an individual right. As the court of appeals further recognized (Pet. App. 51a), however, it does not follow that “the government is absolutely barred from regulating the use and ownership of pistols” or other firearms. See Robertson, 165 U.S. at 281 (The various liberties secured by the Bill of Rights “ha[ve], from time immemorial, been subject to certain well-recognized exceptions, arising from the necessities of the case.”). Rather, the Second Amendment, properly construed, allows for reasonable regulation of firearms, must be applied in light of context and history, and does not provide any protections to certain individuals, such as convicted felons, who have never been understood to be within the Amendment’s coverage. In those respects, the Second Amendment right is like rights conferred by the surrounding provisions of the Bill of Rights and enjoyed by individuals. Given the unquestionable threat to public safety that unrestricted private firearm posses- interprets the Second Amendment in light of the relationship between the regulated firearms and “the preservation or efficiency of a well regulated militia” (ibid.), the Court did not express any holding on whether or to what extent the Amendment applies only to “militia related” activities. Accordingly, although the Court’s discussion of the Second Amendment in Miller differs in some respects from the analysis described in this brief, Miller presents no precedential barrier to adopting that approach. 21 sion would entail, various categories of firearm-related regulation are permitted by the Second Amendment under that constitutional understanding, as illustrated by the existing federal laws regulating firearms.5 1. Congress Has Authority To Prohibit Particular Types Of Firearms, Such As Machineguns a. While the court of appeals correctly recognized that the Second Amendment both secures individual rights and allows “reasonable restrictions” (Pet. App. 51a), it appears to have adopted a categorical test. The court of appeals concluded that, “[o]nce it is determined * * * that handguns are ‘Arms’ referred to in the Second Amendment, it is not open to the District to ban them.” Pet. App. 53a. Such a categorical approach would cast doubt on the constitutionality of the current federal machinegun ban, as well as on Congress’s general authority to protect the public safety by identifying and proscribing particularly dangerous weapons. See p. 2, supra. Indeed, the court’s unqualified determination that “handguns are ‘Arms,’” Pet. App. 53a; see id. at 51a, does not exclude certain automatic weapons covered The court of appeals correctly concluded that the Second Amend- ment—like the surrounding provisions of the Bill of Rights—applies to the District of Columbia. See Pet. App. 44a-48a; O’Donoghue v. United States, 289 U.S. 516, 539-541 (1933); Robertson, 165 U.S. at 281-282. Although the Second Amendment may have limited or no application to special federal enclaves such as military bases, where the government has always enjoyed greater leeway in regulating the private conduct of individuals who voluntarily enter, that rationale would not extend to the whole of the District of Columbia. Indeed, petitioners’ argument (Br. 35-40) that the District is unique compared to the States when it comes to the Second Amendment is seriously undercut by the fact that the District has its own militia statute. D.C. Code § 49-401; see Act of Mar. 3, 1803, ch. 20, 2 Stat. 215 (providing for organization of D.C. militia). 22 by 18 U.S.C. 922(o) that fall within the D.C.-law definition of “pistol.” And because automatic rifles like the M16 are now standard-issue military weapons for rankand- file soldiers, the court’s reference to the “lineal descendant[ s]” of the weapons used in Founding-era militia operations, see Pet. App. 51a, on its face would cover machineguns and other firearms that represent vast technological improvements over the “Arms” available in 1791. See ibid. b. The text and history of the Second Amendment strongly indicate that the Amendment does not categorically foreclose legislative prohibitions on particular categories of “Arms.” The question remains whether the restriction is reasonable. The right protected by the Second Amendment is a right to “keep and bear Arms,” not a right to possess any specific type of firearm. A ban on a type or class of firearms, such as machineguns, is not unconstitutional just because it is categorical. A number of factors—including whether a particular kind of firearm is commonly possessed, poses specific dangers, or has unique uses, as well as the availability of functional alternatives—are relevant to the constitutional analysis. History also supports that conclusion. Because Founding-era militia members were expected to procure their own firearms and to bring those guns when called to service, see p. 16, supra, the militia could not have been “well regulated” if individuals had unrestricted freedom to choose which “Arms” they would possess. Rather, it was essential to the effective operation of the militia as then constituted that government officials be authorized to specify the weapons that individual members would be required to procure and maintain. The Amendment’s text and history thus suggest that the 23 substantive right secured did not guarantee an unfettered choice of “Arms.” That inference is strongly reinforced by the Second Militia Act of 1792. Because of its vintage, that Act provides significant contemporaneous evidence of the Framers’ views as to the scope of the right that the Second Amendment secures. In addition to requiring (with limited exceptions) that all “free able-bodied white male citizen[s]” between 18 and 45 years old be enrolled in the militia, the Second Militia Act prescribed in considerable detail the type and quantity of firearms and ammunition that different classes of militia members were to procure and bring when called to service. See Second Militia Act, § 1, 1 Stat. 271-272; Pet. App. 29a, 49a-50a. Congress’s enactment of that statute confirms that the Framers did not understand the right secured by the Second Amendment to include unrestricted freedom of choice among “Arms.” Indeed, Congress could certainly have made clear—consistent with the Second Amend- ment—that certain “Arms” would be disruptive of a “well regulated Militia” if wielded by certain classes of militia members and so should not be brought when the militia was called to service. Other historical evidence is to the same effect. Blackstone described the right secured by the English constitution as the right of English subjects “of having arms for their defence, suitable to their condition and degree, and such as are allowed by law.” 1 Blackstone, supra, *143-*144 (emphasis added). Blackstone further characterized the right as “a public allowance, under due restrictions, of the natural right of resistance and self-preservation.” Id. at *144 (emphasis added). Accordingly, when a law directly limits or prohibits the private possession of “Arms” in a way that has no 24 grounding in Framing-era practice, the Second Amendment requires that the law be subject to heightened judicial scrutiny, but not to the type of per se rule suggested by the court of appeals. See Pet. App. 53a.6 In conducting the appropriate inquiry, the reviewing court should consider (a) the practical impact of the challenged restrictions on the plaintiff’s ability to possess firearms for lawful purposes (including the nature and practical adequacy of the available lawful alternatives), and (b) the strength of the government’s interest in enforcement of the relevant restriction. Cf. Burdick v. Takushi, 504 U.S. 428, 434 (1992). Under that approach, the “rigorousness of [the] inquiry” (ibid.) depends on the extent to which a law burdens Second Amendment rights, and important regulatory interests are typically sufficient to justify reasonable restrictions on such rights. See ibid.; Timmons v. Twin City Area New Party, 520 U.S. 351, 358-359 (1997). The federal prohibitions on the possession of particular types of firearms, such as machineguns, readily pass such scrutiny. Those prohibitions are carefully targeted The difference between the court of appeals’ standard and the standard advocated here can be analogized to the difference in approach between the concurring and majority opinions in McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995). While the concurrence surveyed the historical evidence of anonymous electioneering during the Founding era and advocated a categorical rule of protection, see id. at 358-367 (Thomas, J., concurring in the judgment), the Court invalidated the law by applying a more broadly applicable standard of review (there, strict scrutiny) that would allow some restrictions on anonymous electioneering speech, see id. at 348-353, 357. Whatever the merits of the competing views in McIntyre, a per se rule is clearly out of place in the Second Amendment context in light of the co-existence of the Second Amendment and reasonable restrictions on firearms dating back to the Founding. See, e.g., Robertson, 165 U.S. at 281-282. 25 to firearms that have little or no legitimate private purpose, they permit possession for lawful purposes of a broad class of firearms other than those regulated, and the government’s interest in regulating firearms like the machinegun to protect the public safety is paramount. 2. Congress Has Substantial Authority To Ban The Private Possession Of Firearms By Persons Whom Congress Deems Unfit To Keep Such Weapons Heightened judicial scrutiny is not appropriate forall laws regulating the possession of firearms. As is true for other constitutional rights, in some contexts the underlying right has little or no application at all (e.g., “fighting words” are not entitled to First Amendment protection). As the court of appeals recognized, some individuals, like convicted felons, simply do not enjoy Second Amendment rights. Pet. App. 52a. Because such individuals fall outside the protection of the Second Amendment, a law restricting gun ownership by felons need not satisfy the heightened scrutiny appropriate for laws prohibiting the possession of categories of guns by law-abiding citizens. Abundant historical evidence makes clear that Section 922(g)(1)’s ban on firearm possession by felons—by far the most frequently applied of the prohibitions currently contained in 18 U.S.C. 922(g) (see pp. 2-3, supra)— is consistent with the Framers’ intent. “Felons simply did not fall within the benefits of the common law right to possess arms. * * * Nor does it seem that the Founders considered felons within the common law right to arms or intended to confer any such right upon them. All the ratifying convention proposals which most explicitly detailed the recommended right-to-arms amendment excluded criminals and the violent.” Don B. Kates, 26 Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 266 (1983); see, e.g., Robert Dowlut, The Right to Arms: Does the Constitution or the Predilection of Judges Reign?, 36 Okla. L. Rev. 65, 96 (1983) (“Colonial and English societies of the eighteenth century, as well as their modern counterparts, have excluded infants, idiots, lunatics, and felons [from possessing firearms].”).7 The courts of appeals in the instant case and Emerson, which both correctly recognized that the Second Amendment secures an individual right, also recognized that the right simply does not extend to felons. See Pet. App. 52a; Emerson, 270 F.3d at 261 (“[I]t is clear that felons * * * may be prohibited from possessing firearms.”). The validity of Section 922(g)(1) thus does not depend on the satisfaction of heightened scrutiny or on any empirical showing. 3. Congress Has Authority To Regulate The Manufacture, Sale, And Flow Of Firearms In Commerce Licensing requirements such as those contained in the GCA (see p. 3, supra) generally do not present the same Second Amendment concerns as a direct prohibition on the possession of firearms by individuals. The Amendment’s text and history suggest that the Framers were more concerned with securing the right of individuals to “keep and bear Arms” than with limiting the gov- The current federal ban on possession of firearms by any person “who has been adjudicated as a mental defective or who has been committed to a mental institution,” 18 U.S.C. 922(g)(4), likewise has a precise analog in Framing-era practice. And, of course, to the extent that federal law limits access to firearms by certain groups in the absence of a Framing-era analog, those restrictions would be subject to scrutiny under the Second Amendment, but would not be barred by any categorical rule. 27 ernment’s ability to regulate the manufacture or sale of such arms. Government restrictions on the importation and interstate transportation of firearms, see p. 3, supra, are even further afield from the Framers’ concerns. In addition, as in the context of other individual rights, regulation of firearm-related commercial activities may present distinct constitutional considerations. See, e.g., New York v. Burger, 482 U.S. 691 (1987) (recognizing exception to Fourth Amendment warrant requirement for administrative searches of certain business premises); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557 (1980) (holding that commercial speech is entitled to reduced protection under the First Amendment). Accordingly, there is no basis here for questioning the constitutionality of the GCA’s licensing provisions or federal limits on importation or transport of firearms. In any event, this case, which involves private possession, provides no opportunity for the Court to expound on the different principles that might govern efforts to regulate the commercial trade in firearms. C. THE COURT SHOULD REMAND THIS CASE TO THE LOWER COURTS TO PERMIT THEM TO ANALYZE THE CONSTITUTIONALITY OF THE D.C. LAWS AT ISSUE UNDER THE PROPER CONSTITUTIONAL INQUIRY As discussed, a general prohibition on the possession of a type or class of firearms is subject to heightened judicial scrutiny that balances the impact of the challenged restrictions on protected conduct and the strength of the government’s interest in enforcement of the relevant restriction. The greater the scope of the prohibition and its impact on private firearm possession, the more difficult it will be to defend under the Second Amendment. 28 Cf. Burdick, 504 U.S. at 434. Under that analysis, the D.C. ban may well fail constitutional scrutiny. The court of appeals appears to have applied instead a categorical rule, and the best course would be to remand for application of the proper standard of review in the first instance. 1. The heightened judicial scrutiny described above is materially different from the more categorical approaches taken by the district court and the court of appeals. The district court dismissed respondent’s complaint based on the erroneous view that the Second Amendment does not secure any individual right “separate and apart from service in the Militia,” Pet. App. 83a, and thus did not engage in intermediate scrutiny or indeed in any consideration (or fact-finding) on the constitutionality of the D.C. laws. The court of appeals appears to have erred in the opposite direction. Based on its determination that “handguns are ‘Arms’ referred to in the Second Amendment,” the court of appeals appears to have ruled categorically that “it is not open to the District to ban them.” Ibid.; see pp. 21-22, supra. 2. When this Court announces a legal standard significantly different from that applied by the court of appeals, the preferred course generally is to remand the case to allow the lower courts to apply the correct standard in the first instance. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995) (“Because our decision today alters the playing field in some important respects, we think it best to remand the case to the lower courts for further consideration in light of the principles we have announced.”); O’Leary v. BrownPac.- Maxon, Inc., 340 U.S. 504, 508 (1951) (“When this Court determines that a Court of Appeals has applied an incorrect principle of law, wise judicial administration 29 normally counsels remand of the cause to the Court of Appeals with instructions to reconsider the record.”). That exercise of restraint is simply an application of the principle that the Court ordinarily “do[es] not decide in the first instance issues not decided below.” NCAA v. Smith, 525 U.S. 459, 470 (1999). Adherence to the Court’s customary practice would be appropriate here. First and foremost, the Court’s resolution of the extent to which the Second Amendment secures an individual right and, if so, its identification of the appropriate standard of review will be a substantial constitutional undertaking. Few issues in constitutional law have generated more historical research and scholarly comment, and of course the ratio of such historical and scholarly comment to extant Supreme Court doctrine has no parallel. Unlike most of the surrounding provisions of the Bill of Rights, there is scant case law interpreting the scope of the Second Amendment, much less precedent fleshing out and applying various principles or sub-doctrines giving effect to that right, as this Court has developed in other contexts. This Court’s most extensive treatment of the Second Amendment is contained in a five-page discussion in an opinion issued nearly 70 years ago, which lacks any extended analysis or explication of Second Amendment rights. Miller, supra. Much of petitioners’ briefing, and presumably an even greater percentage of amicus filings, will concentrate on these threshold issues. If the Court takes the foundational steps discussed above, there would be virtue in remanding the case for application of a proper standard of review and permitting Second Amendment doctrine to develop in an incremental and prudent fashion as is necessary to decide particular cases that may arise. Allowing lower courts 30 to develop doctrines to address issues concerning the scope of the Second Amendment, its application to a variety of circumstances, and the relevance of particular historical materials has much to recommend it. When lower courts differ as to the proper resolution of concrete and particularized disputes, the Court can grant plenary review and develop the law incrementally, as it does in other contexts. On the other hand, broad-based pronouncements in the context of adjudicating the details of a law that is far from typical could unduly skew the future course of Second Amendment adjudication. 3. Applying the heightened judicial scrutiny described above to the specific claims raised by respondent might warrant consideration of additional legal or factual issues that the court of appeals did not need to reach under its analysis. In contending that the challenged D.C. laws unconstitutionally prevent him from possessing functional firearms for personal self-defense in the home, respondent has focused throughout this litigation on the combined effect of the handgun ban and the trigger-lock provision. See J.A. 54a (complaint) (alleging that the challenged D.C.-law provisions violate respondent’s Second Amendment “right to possess a functional, personal firearm, such as a handgun or ordinary long gun (shotgun or rifle) within the home”) (emphasis added); J.A. 57a-58a; Br. in Opp. 2, 18-23 (emphasizing that respondent’s challenge is to combined effect of D.C. laws on handguns and long guns). The determination whether those laws deprive respondent of a functional firearm depends substantially on whether D.C.’s trigger-lock provision, D.C. Code § 7-2507.02, can properly be interpreted (as petitioners contend, see Br. 56) in a manner that allows respondent to possess a func 31 tional long gun in his home.8 And if the trigger-lock provision can be construed in such a manner, the courts below would be required to address the factual is- sue—not fully explored during the prior course of the litigation—whether the firearms that are lawfully available to respondent are significantly less suited to the identified lawful purpose (self-defense in the home) than the type of firearm (i.e., a handgun) that D.C. law bars respondent from possessing.9 To the extent necessary, further consideration of those questions should occur in the lower courts, which would be in the best position to determine, in light of this Court’s exposition of the proper standard of review, whether any fact-finding is necessary, and to place any 8 The court of appeals suggested that, because D.C. Code § 7-2507.02 does not expressly authorize use of a firearm even in lawful self-defense in the home, respondent could not lawfully remove a trigger-lock and render a firearm functional even in response to an imminent threat. See Pet. App. 55a. Under established D.C.-law principles, however, the absence of an explicit self-defense exception within a particular prohibitory statute is not, standing alone, a proper ground for inferring that the defense is unavailable. See, e.g., Hernandez v. United States, 853 A.2d 202, 205-207 (D.C. 2004) (reversing conviction for aggravated assault because trial court erroneously failed to instruct jury on right of self-defense). And, of course, the normal canon of construction is to construe statutes in a manner that avoids constitutional problems. 9 The practical adequacy of long guns as a means of self-defense within the home will likely vary from individual to individual. Some disabled persons, as well as some individuals with less than average physical strength, might have particular difficulty using rifles or shotguns. Respondent himself has not alleged, however, that he is unable to use a long gun effectively. To the contrary, he has alleged that he owns long guns and seeks to use them for self-defense. J.A. 51a. The record compiled to this point does not appear to shed light on the question whether, and to what extent, long guns provide a functionally adequate alternative to handguns for self-defense in the home. 32 appropriate limits on any evidentiary proceedings. Moreover, even if the existing record proved to be adequate, initial examination of those issues is typically better reserved for the lower courts. Cf., e.g., Merck KGaA v. Integra Lifescis. I, Ltd., 545 U.S. 193, 208 (2005).10 CONCLUSION The Court should affirm that the Second Amendment, no less than other provisions of the Bill of Rights, secures an individual right, and should clarify that the right is subject to the more flexible standard of review described above. If the Court takes those foundational steps, the better course would be to remand. Respectfully submitted. 10 If the court of appeals ultimately holds that some or all of the challenged D.C.-law provisions are unconstitutional under the correct standard of review, a remand will also give that court the opportunity to state more precisely the scope of its remedial holding. With respect to D.C. Code § 22-4504(a), which prohibits the carrying of a pistol without a license, the court of appeals stated that it was declaring the law invalid only as applied to carriage within the home and was not addressing the question “whether the District can ban the carrying of handguns in public, or in automobiles.” Pet. App. 54a. With respect to the other challenged provisions, however, the court did not make clear whether it was declaring the laws invalid on their face or only as applied to some particular set of circumstances. 33 33 Solicitor General ALICE S. FISHER Assistant Attorney General STEPHEN R. RUBENSTEIN JEFFREY S. BUCHOLTZ Chief Counsel Acting Assistant Attorney Bureau of Alcohol, Tobacco,General Firearms and Explosives GREGORY G. GARRE Department of Justice Deputy Solicitor General MALCOLM L. STEWART Assistant to the Solicitor General JANUARY 2008

Please post again, but without the distracting spaces, capitalization, and punctuation that makes it so difficult to read.

I have heard that a decision may come down in mid-summer, but that’s probably just someone’s best guess.

little mention is being made of the 14th Amendment

They have to establish the 2nd Amendment beyond any doubt before applying the 14th. Heller was brought in DC precisely so that the 14th wouldn't end up complicating things (and yes, it would have - badly).

Chicago is on deck next for using the result of Heller to, yes, apply the 14th Amendment.

John Bingham, the main author of Sec. 1 of the 14th Amendment, included the 2nd A. when he read the first eight amendments as examples of constitutional statutes containing privileges and immunities that the 14th A. applied to the states

Is it true that the 2nd Amendment has never been incorporated into the 14th by the USSC, which if I understand correctly means that the 2nd only protects the right to arms from laws enacted by Congress, but doesn't protect against infringement by state or local laws? If so, why would it not also be true that a decision upholding the D.C. Appeals Court without incorporating the 2nd into the 14th would not have any bearing on the constitutionality or lack of same of state and local gun laws, but only on the gun laws of the District which is not a state?

I have never understood the theory behind the necessity of incorporating a BOR amendment into the 14th in order to make it applicable to the states, and IIRC the 2nd is the only one of the BOR amendments that hasn't yet been incorporated. There's an awful lot that I don't understand about the need for incorporating a BOR amendment into the 14th in order to make it apply to the states, and not much that I do understand. If you or anyone tries to help me understand that need please be aware that I am illiterate in the native Legalese language, and as one consequence of government schooling I am only minimally literate in English.

They have to establish the 2nd Amendment beyond any doubt before applying the 14th. Heller was brought in DC precisely so that the 14th wouldn't end up complicating things (and yes, it would have - badly).

Thank you for replying.

I disagree with your statement about having to establish the 2nd Amendment beyond any doubt before they can start thinking about the 14th Amendment. The truth of the matter is that the 39th Congress could have proposed that the states repeal the 2nd A. if they had so desired.

But what Congress did, as evidenced by Bingham's discussion of the 14th A. in the Congressional Globe, was to not only to change the scope of the federal Constitution's privileges and immunities as a consequence of the Civil War, but to also clarify what some of those personal rights were. So if the 2nd A. wasn't regarded as a personal right before the 14th A. was made, and I'm not saying that it wasn't, then Bingham's inclusion of the 2nd A. in his discussion of the ratified 14th A. shows that the 39th Congress had agreed that the 2nd A. now protects personal rights.

I have never understood the theory behind the necessity of incorporating a BOR amendment into the 14th in order to make it applicable to the states, and IIRC the 2nd is the only one of the BOR amendments that hasn't yet been incorporated.

Regardless that the Court seems to use the due process clause of the 14th A. as the basis for incorporation, given Bingham's reading of the first eight amendments when discussing the ratified 14th Amendment, the Court doesn't know what it's talking about concerning incorporation, in my opinion.

In fact, given that the USSC stated in the opinion of Presser v. Illinois that the 2nd A. restricted only Congress, my guess is that the USSC was simply not aware of key statements that Bingham had made concerning the 14th A. in the Congressional Globe. The following two extracts contradict each other, in my opinion.

"These eight articles I have shown never were limitations upon the power of the states, until made so by the fourteenth amendment." --John Bingham, Congressional Globe, 1871 http://tinyurl.com/y3ne4n
"The provision in the Second Amendment to the Constitution, that "the right of the people to keep and bear arms shall not be infringed," is a limitation only on the power of Congress and the national government, and not of the States." --Presser v. Illinois, 1886

The 19th century USSC contradicted Bingham, in my opinion, essentially because the USSC didn't have the convenience of computer-searchable archives in the 19th century.

And if the Court came up with the idea of selective incorporation simply because one generation of justices was unaware of Bingham's discussion of the 14th A., then I wouldn't be surprised if later generations of justices simply treated the idea like a case precedent.

I disagree too.
This is, unfortunately, the way the system is working.

_Heller_ is a fight over whether there is a right at all. No right, nothing to incorporate.
The Supreme Court has said that no right is incorporated under the 14th until they say it is.
Yes, the text and meaning of both amendments is plainly clear, and it’s stupid that either case has to be pursued - but that’s the way it is.

_Heller_ is a fight over whether there is a right at all. No right, nothing to incorporate. The Supreme Court has said that no right is incorporated under the 14th until they say it is. Yes, the text and meaning of both amendments is plainly clear, and it’s stupid that either case has to be pursued - but that’s the way it is.

It's time to start heating the tar to tar-and-feather the Supreme Court!

Actually, it was time a long time ago.

Again, given Bingham's reading of the first eight amendments in clarifying the scope and purpose of the 14th A., the USSC's so-called selective incorporation is pure theater, in my opinion.

"These eight articles I have shown never were limitations upon the power of the states, until made so by the fourteenth amendment." --John Bingham, Congressional Globe, 1871 http://tinyurl.com/y3ne4n

Here's my explanation of the USSC's idea of so-called selective incorporation in another post.

http://www.freerepublic.com/focus/f-news/1986297/posts?page=18#18

Will you or somebody please remind me what the Supreme Court does for a living?