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 quoted: "The rule which it laid down was adequate to dispose of the case before it and that we think was as far as the Supreme Court intended to go."

Fine. Then without a showing that the weapon was not useful to a militia, the jury would be obligated to ACQUIT without regard to any militia membership.

You persist in your mistaken notion that a law which is unConstitutional under SOME circumstances is therefor unConstitutional under ALL circumstances. That is totally false. Perhaps you could justify this stance.

If the Miller Court had decided that only persons who are militia members are protected by the Second Amendment, then the law could be applied to Miller and Layton.

You will please note that the Miller case addressed ONLY the possession of a short-barreled shotgun. EVEN UNDER MILLER, if the shotgun had been found to be protected, the law would still be enforceable with regard to other weapons.

You are forced to persist in this error because otherwise you would have to admit that the Miller decision is an individual rights decision.

robertpaulsen said: "We had it all, and people like you were not happy and wanted a showdown. "

"WE" had nothing. You may be content living in Illinois where your right to keep and bear arms is subject to "police power", but here in Kalifornia I have NOTHING.

The Ninth Circus would stand idly by while the same Kalifornia Highway Patrolman who disarmed the elderly lady in New Orleans did the same thing to my elderly mother.

And how do you justify saying "We had it all" when your stated position is that DC WAS WRONG? Wouldn't you "have it all" when the Supreme Court overrules the DC Court and rules that only militia members are protected? In Kalifornia that would be equivalent to saying that only employees of the state have a "right" to keep and bear arms. Some "well-regulated Miltia" that will be.

"Then without a showing that the weapon was not useful to a militia, the jury would be obligated to ACQUIT without regard to any militia membership."

Or, to put it another way, without a showing that the weapon was useful to a militia, the jury would be obligated to CONVICT without regard to any militia membership.

"You persist in your mistaken notion that a law which is unConstitutional under SOME circumstances is therefor unConstitutional under ALL circumstances. That is totally false. Perhaps you could justify this stance."

Perhaps you can tell me where you got that notion, because I have no idea what you're talking about.

"If the Miller Court had decided that only persons who are militia members are protected by the Second Amendment, then the law could be applied to Miller and Layton."

Where are you coming up with these hypotheticals? The Miller court said nothing about Militia membership.

"You will please note that the Miller case addressed ONLY the possession of a short-barreled shotgun."

Well, a particular short-barreled shotgun, yes.

"EVEN UNDER MILLER, if the shotgun had been found to be protected, the law would still be enforceable with regard to other weapons."

Under Miller, other non-Militia-type weapons, yes.

"You may be content living in Illinois where your right to keep and bear arms is subject to "police power", but here in Kalifornia I have NOTHING."

Oh cry me a river! You have concealed carry. WE DON'T! Two states don't allow it. Mine is one.

"And how do you justify saying "We had it all" when your stated position is that DC WAS WRONG?"

I would never say the DC Circuit Court was wrong. I believe you tried to get me to say that.

The DC Circuit Court decision was contrary to the other courts. I believed then, as I do now, that they will be overturned. This is not what I want, simply what I believe will happen.

"Wouldn't you "have it all" when the Supreme Court overrules the DC Court and rules that only militia members are protected?"

If the U.S. Supreme Court did say that, it would be no different than what your 9th Circuit Court has been saying all along. Your mother been disarmed yet?

robertpaulsen said: "... without a showing that the weapon was useful to a militia, the jury would be obligated to CONVICT without regard to any militia membership. "

You COULD put the burden of proof on the defendant but that is not usually how it is done. The defendant has a right to remain silent. The District Court judge already ruled initially that the Second Amendment barred prosecution of Miller and Layton. That would still be true lacking any proof that the weapon was NOT useful to a militia. The judge could dismiss the case for lack of evidence if the prosecution failed to prove its case by including the evidence that the Supreme Court acknowledged had never been presented.

Are you proposing a change, allowing the prosecution to earn a conviction without presenting evidence? Why have a jury if there is no evidence to consider?

robertpaulsen said: "Perhaps you can tell me where you got that notion, because I have no idea what you're talking about. "

Of course you don't.

Acccording to the Supreme Court, Miller and Layton could be prosecuted IF and ONLY IF the short-barreled shotgun was found to be useful to a militia. This decision was independent of the nature of any other weapon controlled by NFA 34.

Let's assume for a moment that a jury decided that the short-barreled shotgun WAS NOT useful to a militia and that Miller and Layton are convicted. Does that mean the law is Constitutional or unConstitutional? Obviously, if the defendants are convicted using the guidance supplied by the Supreme Court, then the law is, by definition, Constitutional.

Let's then assume for a moment that the jury decided that the short-barreled shotgun IS useful to a militia and Miller and Layton are acquitted. Obviously, then, the prosecution of Miller and Layton was unConstitutional. Does that bar prosecution of somebody else accused of having a weapon which is not useful to a miliitia? Absolutely NOT.

Obviously, then, we have a law which is unConstitutional under some circumstances and Constitutional under other circumstances. Is this so really hard to follow?

Now imagine that the Supreme Court had ruled that the nature of the arms was irrelevant but that protection of the Second Amendment barred prosecution of members of a "well-regulated Militia". Prosecution of the law in the case of militia members would be unConstitutional and prosecution of all others would be Constitutional.

The passage of a law by Congress is not an infringement of a person's right to keep and bear arms. It is the enforcement of the law which infringes. It is that enforcement that the Court controls. The Court has no say on what legislation can be passed by Congress and the Court has no power to "un-pass" legislation.

robertpaulsen said: "The Miller court said nothing about Militia membership. "

From the Miller decision:These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, 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.

Gee,.. look at that. The Miller Court did address militia membership, and recognized that the Militia mentioned in the Second Amendment was "all males physically capable of acting in concert for the common defense".

They further made no suggestion that the physical capabilities of either Miller or Layton was relevant to the remand to the trial court. That is because the Second Amendment, regardless of which arms are protected, is a right of the people, not a right of the militia.

"You have said that the Second Amendment protects only those enrolled in a "well-regulated Militia", have you not?"

Yes. I believe I said that was how the majority of lower Circuit Courts ruled.

"That makes the DC Circuit WRONG."

No, that makes their decision DIFFERENT.

"I asked you on another thread to tell me what you believe the Supreme Court in Heller SHOULD decide and I don't recall seeing an answering post. Please provide an answer to that question."

They SHOULD interpret the U.S. Constitution. They SHOULD cite to stare decisis. They SHOULD examine lower federal court rulings. They SHOULD comply with the original meaning of the Founders.

If they do, they'll rule an individual right as part of a Militia. I give it 50-50. It was premature to bring this issue before the U.S. Supreme Court. I've said so from the beginning.

Your arguments are so old and deluded of common sense on the second amendment and continually defy logic, it makes one ponder what you really sense as reality. Everytime there is a second amendment issue, the fact that you bring up Miller is also nuts. The plaintiff was not in court for the final hearing and the lawyer did not present evidence. If this was the case it would have been shown that short barreled shotguns are part of the military and normal small arms carried by all manner and nearly every arsenal of our military THAN and now from the Coast Guard, Marines, Navy, Army, Air Force, Reserves, and Guard. My father carried one in Korea and my uncle carried one at Guadal Canal, both as Marines. Miller would not have mentioned shotguns or militias and would have stuck with bootlegging liquor if the plaintiff had been represented and if the lawyers had presented evidense. Nuts!

Further, all arguments are pretty much mute and silly as the the bill of rights were not amended into the Constitution to protect States, but to protect the rights of the individual person. Only people with a false agenda come to any other conclusion for there own purpose. Why on God's earth would one (and only the second) of the amendments deal with state rights? It is beyond comprehension to come to any conclusion other than the second amendment means what it says as described by the writings of nearly all the founders of our government and most state constitutions emulate. The SCOUTS will uphold the second as it was meant to be once and for all and all other nutty gun laws will become null and void that prohibit ownership of small arms by citizens who are not convicted felons or mentally incapacitated.

The Winchester Model 97 — firing a modern 12-gauge shell — with pump action; six-round magazine capacity; and short, 18-inch barrel was brought over by American military police and infantrymen and soon became known as the “trench sweeper.” An infantryman breaking into a trench could sweep both sides of it (to the depth of a passageway) with multiple buckshot rounds. Once leaders understood the 50-meter range of this weapon, it was employed with skill. A soldier with a shotgun, fast to pump and fire, could quickly suppress German trench assaults and clear dugouts with devastating effectiveness. Out of the trenches, the Model 97 cleared Germans out of farmhouses and buildings in French villages with equal effectiveness. On 27 September 1918, Sergeant Fred Lloyd, using a Model 97, advanced alone into a German-held village and began methodically clearing it, pumping and firing the shotgun as he moved. He finally collapsed with exhaustion after routing thirty German soldiers. The combat shotgun had earned its place as an Army secondary weapon.

United States Marine Corps Weapons & Equipment

Joint Service Combat Shotgun

Primary function: Semi-automatic, repeating 12 gauge shotgun
Length: 41.75 in. or less (106.05 centimeters)
Weight: 6 - 8.5 lbs. (2.73 - 3.86 kilograms)
Bore diameter: 12 gauge
Maximum effective range: 40-50 meters with “00” buckshot load
Unit Replacement Cost: Information not available.

Features: The Joint Service Combat Shotgun will be a compact, lightweight, semi-automatic, 12 gauge weapon configured with a standard magazine with a minimum capacity of six 2 3/4 inch cartridges. The Combat Shotgun will be capable of firing 12 gauge 3.0 inch magnum ammunition and will be interoperable with standard 2 3/4 inch ammunition without adjustment to the operating system. It will be constructed of lightweight polymer materials and corrosion resistant metal components. To enhance mission performance and provide increased operator flexibility, it will be equipped with modular components such as modular stocks in various configurations and modular barrels of various lengths.

Background: The Joint Service Combat Shotgun will replace the various pump action shotguns currently used by all services. It will be employed by various units in the execution of security and selected Special Operations missions.

"So you're convinced that the Supreme Court would be WRONG to agree with the DC Court"

Geez Louise. That's why I don't answer your questions.

I said if the U.S. Supreme Court did those things I listed, then they should not agree with the DC Court. Remember? You asked me how they SHOULD rule?

what is premature about bringing the issue before the Supreme Court?"

Well, we have the 5th Circuit and the DC Circuit on our side. We'll never get the 9th Circuit, but there's talk of splitting up the 9th. Over the years, we may get piecemeal favorable gun rulings from other Circuit Courts. State gun legislation continues to grow more favorable. Public opinion about guns and self defense is changing. The U.S. Supreme Court may become more conservative.

What's the rush? Why the showdown? Things are looking better than they ever have and you want to press the U.S. Supreme Court into making a once-and-for-all ruling?

Insanity.

History of the Military Use of Shotguns

A shotgun is a multiple projectile weapon for close range combat. Since it is simpler than modern rifles, it was developed quite early. In the American Revolution, Gen. George Washington encouraged his troops to load their muskets with "buck and ball," a load consisting of one standard musket ball and three to six buckshot, to increase the probability of a hit. Shotguns were used at the Alamo, by the Marnes in the war with Mexico in 1846, and in the Civil War by Union and Confederate forces, primarily by cavalry units. Followin ghte Civil War, U.S, Cavalry units employed shotguns during the Indian wars between 1866 and 1891. Shotguns saw service during the Philippine insurrection (1899 to 1914), and by Brigadier General John Pershing in the 1916 punitive expedition into Mexico in pursuit of Pancho Villa. When the United States entered World War I in 1917, General Pershing’s forces employed 12-gauge pump action shotguns, loaded with six No. 00 buckshot shells, for close-range defensive fires against enemy infantry assaults, trench raids, and assaults on enemy trenches and machine gun positions. The shotguns were fitted with bayonets and a heat shield so the barrel area could be gripped when the bayonet was employed. This style of gun, with heat shield and bayonet, was the "trench gun". Shotguns without these features were "riot guns". Later, when trench warfare was no longer a military concern, all shotguns were referred to as "riot guns" even if equipped with bayonet and heat shield. The highly-effective use of the shotgun by United States forces had a telling effect on the morale of front-line German troops. On 19 September 1918, the German government issued a diplomatic protest against the American use of shotguns, alleging that the shotgun was prohibited by the law of war. After careful consideration and review of the applicable law by The Judge Advocate General of the Army, Secretary of State Robert Lansing rejected the German protest in a formal note. The German protest is the only known occasion in which the legality of actual combat use of the shotgun has been raised. Shotguns were employed by Allied-supported partisans and guerrillas in Europe and Asia during World War II, and by the United States Army and Marine Corps in the Pacific and China-Burma-India (CBI) theaters. The short range of the shotgun made it of limited value for conventional forces in the open European battlefields, but its close-range effectiveness made it invaluable in the dense jungle battlefields of the Pacific and CBI theaters. Shotguns were employed in combat in the Korean War, primarily for command post security and close-range protection for machine-gun positions. Human-wave attacks by North Korean and Chinese forces led to the development of the Claymore mine, a multiple-fragmentation antipersonnel munition that performs like a shotgun in its directed dispersion of fragments. In the post-World War II insurgency/counterinsurgency era, shotguns were employed by guerrilla and military forces in virtually every conflict in sub-Sahara Africa, Latin and South America, and Southeast Asia. In their successful counterinsurgency campaign in Malaya (1948-1959), British forces employed shotguns in jungle operations, as did British, Australian, and New Zealand special operations forces in their 1963-1966 Borneo campaign. Shotguns were employed by Viet Minh and French forces in the Indochina War (1946-1954) and by the Viet Cong against the military forces of the Government of the Republic of South Vietnam (1956-1975). United States, Australian, and New Zealand units employed shotguns in their operations against Viet Cong guerrillas and North Vietnamese military forces in the Republic of Vietnam (1965-1972). They also used the Claymore mine and a shotgun round for the M79 grenade launcher. United States Marine Corps personnel employed shotguns in the recapture from Cambodian forces of the container ship Mayaguez on 12 May 1975. United States Air Force security police employed shotguns in base security operations in Saudi Arabia during Operations Desert Shield and Desert Storm (1990-91) to protect them from attack by terrorists or Iraqi military units, and some personnel in British armored units were armed with shotguns as individual weapons during that conflict.

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