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. ...

"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"

Context...
Any "extensive legal regulation" (hyperbole!) was the KING'S regulations. This author is essentially stating..."well, since there were regulations when we were ruled by the King of merry ol' England, then that is the premise upon which we must factor our understanding of our constitution. Horsey pucky!

It is from exactly that monarch's rule we wished to Declare our Independence. So to use the monarch's law as a basis for understanding our forefathers' intent is silliness in the extreme. The best way to understand any author's meaning is to let the author explain it, not let his sworn enemies deifine his intent! And we can read the needed explanations in the Federalist papers and the various quotes from our Founding Fathers.

The King had subjects who only had rights the government decided they had.
We declared ourselves to be citizens, based upon rights our Creator gave us.

The author needs to revise many of his premises before printing this leftist drivel.

Howeve, on another note...we could probably make a strong argument for basing our understanding up Scottish Law....riiiiiight?.../s

>Buy guns! The more we buy, the less likely they will try to come and get them. But if they do, the less likely they’ll be successful at it.<

I agree but if you buy one and MUST have the sale registered, hold it for six months then SELL IT in a private sale and buy a replacement in a private sale. This will prevent the feds from having an accurate database as to the location of the weapons.

If, we the people are going to maintain power over the government, we must not permit them to have a database.

More important, I think is to store ammunition because without ammo all weapons are useless. I see the day coming when the primers of rounds will disintegrate within specific time periods ( 5 years or so ) making the ammo unusable. The ammo you now have is the ammo that we know is good. Save that stuff and replace it with newer ammo.

Put your older ammo in proper storage containers and protect it from the effects of fluctuating temperatures and moisture.

_______________________________

If you trust your government, you are stuck on stupid.

I don’t carry a gun…

… to kill people. I carry a gun to keep from being killed.

I don’t carry a gun to scare people. I carry a gun
because sometimes this world can be a scary place.

I don’t carry a gun because I’m paranoid. I carry a gun
because there are real threats in the world.

I don’t carry a gun because I’m evil. I carry a gun
because I have lived long enough to see the evil in the world.

I don’t carry a gun because I hate the government. I carry a gun
because I understand the limitations of government.

I don’t carry a gun because I’m angry. I carry a gun so that I don’t have to
spend the rest of my life hating myself for failing to be prepared.

I don’t carry a gun because I want to shoot someone. I carry a gun because I want to
die at a ripe old age in my bed, and not on a sidewalk somewhere tomorrow afternoon.

I don’t carry a gun because I’m a cowboy. I carry a gun
because, when I die and go to heaven, I want to be a cowboy.

I don’t carry a gun to make me feel like a man. I carry a gun
because men know how to take care of themselves and the ones they love.

I don’t carry a gun because I feel inadequate. I carry a gun
because unarmed and facing three armed thugs, I am inadequate.

I don’t carry a gun because I love it. I carry a gun
because I love life and the people who make it meaningful to me.

“Police Protection” is an oxymoron. Free citizens must protect themselves.

Police do not protect you from crime, they usually just investigate
the crime after it happens and then call someone in to clean up the mess.

Pistolshot said: "Now this decision will be determined by Kennedy, most likely, and the justices will not agree on an all or nothing decision either way."

Although the Supreme Court has accepted the case, I don't believe that there is any requirement that they actually deliver a decision.

If Roberts, Alito, Scalia, and Thomas all support the correct reading, then I don't think they will view it as advisable to allow Kennedy to "compromise" on a fundamental individual right. Either Kennedy goes along or the conservative four will see to it that Kennedy is saddled with an incredibly wrong reading from the libs on the court. There will be pressure on Kennedy, if he can't see the truth, to simply deny a majority to any decision. The Court would then announce that the DC decision stands with no further comment. This would "kick the can down the road" for a later Court.

As for the Court rendering a "narrow" decison, that is hardly possible. Either it is an individual right or it isn't. Either the right is "fundamental" or it isn't. If it is not fundamental, then the Court could consider permitting the DC infringement and not otherwise. If it is fundamental, then the DC ban is out and 20,000 laws across the nation are in jeopardy.

One need only ask, "Did the Fourteenth Amendment prohibit the disarming of freed slaves after the Civil War?" This is really the only question that one need ask.

The Democrats, while not having to state so in such explicit terms, obviously believe that the individual states have the right to disarm black people.

I see the day coming when the primers of rounds will disintegrate within specific time periods ( 5 years or so ) making the ammo unusable. The ammo you now have is the ammo that we know is good.

The moves towards making military surplus ammo unobtainable may bear your fears out.

The Klintonistas made it illegal to sell US military surplus ammo to commoners, and 'dUBYA' has choked off importation of other countries military surplus to a tiny trickle. I have only a few thousand rounds of ammo that will last 50 years or more. The rest is commercial and won't store well.

Any old timers out there ready to hang up the rifles and don't have relatives who want the stuff?

JOAT will happily purchase your old military surplus .308, 30-06, .223(5.56) ammo!

Obfuscation; the central question is whether the language is enough to decide the right or to disallow it.

Why would any reasonable man conclude that if the government was to hold that right to itself would it be so central to the all-important Bill of Rights to then include it as the penultimate right of a free society?

From the article: 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.

What an incredible argument.

The authors of the brief are suggesting that Congress has the power to define the militia as consisting of only infants below the age of two years, and that, therefor, all other people can be disarmed. No state could form a "well-regulated Militia" if Congress had such power.

The situation today demonstrates clearly that Congress could and has neglected the arming and organizing of anything that could be mistaken for a state militia. This makes it all too obvious that Congress does not have the power to disarm THE PEOPLE regardless of how they define the militia.

I would no more "hide" my guns from the Feds than I would my speech or my religion, although I understand your concern.

As far as ammo, you're right on the money. There is much less of a constitutional guarantee on the right to possess ammo than there is firearms. I firmly believe the gun-grabbers will go after ammo, regardless of the DC outcome.

As for the Court rendering a "narrow" decison, that is hardly possible.

Of course the decision can be narrowed to the DC area, that is what the case is about. Not any of the other laws on the books. DC is a special case under the control of the Congress since it is not one of the 'several states'.

As I said, the decision will deal only with DC and run along the lines that since DC is not one of the 'several states' and under the control of Congress, the law will be overturned or returned to the lower courts decision and the city council appeal to Congress to make the law permanent.

Remember, DC has no legislative body as pertains to the states, it is under the direct control of the Congress.

Now, SCOTUS can decide that the 2nd does pertain to all citiens in the DC area, but since the DC area is considered Federal property, the law needs to be addressed by the legislative body that controls the district, not by a city council.

I am buying more guns and ammo as we chat about this.

This brief suffers the same defect as that of the US Solicitor General; that is, it is equivalent to stating, "that the right of the citizens of Boston to keep and bear arms in 1792, after the ratification of the Bill of Rights, is the same as their right on April 19th, 1775, the day that government troops killed them while attempting to disarm them."

The brief is suggesting that the struggle to obtain and possess arms during the oppression of their government played no part in the passage of the Second Amendment. It is historical nonsense of the highest degree.

The cannon which were instrumental in ejecting the occupying military forces from Boston were taken by force of arms from the existing government of the day at Fort Ticonderoga. The protection of the right of "the people", not the militia, to keep and bear arms was to relieve them of having to obtain them from an oppressive government.

The KG9 Kid said: "However, if the USSC noted that there is protection for the citizens under the Second Amendment, would it or would it not be a change in opinion?"

It would not. The Miller decision has been intentionally mistated by lower courts for almost three quarters of a century.

The prosecution in Miller asked, in its Summary of Argument, that the Court find that only militia members were protected by the Second Amendment.

The Miller Court did not agree with this argument, which would have rendered the type of arms irrelevant in the Miller case, since Miller and Layton were neither one associated with any militia. There was no suggestion that Miller or Layton could claim militia membership as protection against prosecution. The only evidence that the Supreme Court noted was lacking was with regard to the particular short-barreled shotgun possessed.

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