No. 07-290

In the Supreme Court of

the United States

DISTRICT OF COLUMBIA, ET AL.,

Petitioners

v.

DICK ANTHONY HELLER,

Respondent

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR AMICI CURIAE 55 MEMBERS OF

UNITED STATES SENATE, THE PRESIDENT OF THE

UNITED STATES SENATE, AND 250 MEMBERS OF

UNITED STATES HOUSE OF REPRESENTATIVES

IN SUPPORT OF RESPONDENT

STEPHEN P. HALBROOK*

10560 Main Street, Suite 404

Fairfax, VA 22030

(703) 352-7276

Counsel for Amici Curiae

*Counsel of Record

i

QUESTION PRESENTED

Whether the following provisions — D.C. Code

secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 —

violate the Second Amendment rights of individuals

who are not affiliated with any state-regulated militia,

but who wish to keep handguns and other firearms for

private use in their homes?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . iv

STATEMENT OF INTEREST OF

AMICI CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I. ORIGINAL INTENT AND EARLY

INTERPRETATION . . . . . . . . . . . . . . . . . . . 5

A. The Text: Rights of the People vs.

State Powers . . . . . . . . . . . . . . . . . . . . 5

B. Drafting the Amendment in 1789 . . . 9

C. The Freedmen’s Bureau Act of 1866 13

II. CONTINUATION OF A CONSISTENT

READING . . . . . . . . . . . . . . . . . . . . . . . . . . 19

A. Regulation in the District

of Columbia . . . . . . . . . . . . . . . . . . . . 19

B. The Property Requisition

iii

Act of 1941 . . . . . . . . . . . . . . . . . . . . 22

C. The Firearms Owners’ Protection Act

of 1986 . . . . . . . . . . . . . . . . . . . . . . . . 26

III. LEGISLATION IN THE 21 CENTURY .ST 28

A. Protection of Lawful Commerce in

Arms Act . . . . . . . . . . . . . . . . . . . . . . 28

B. Disaster Relief & Emergency Assistance

Act Amendment . . . . . . . . . . . . . . . . 31

C. The D.C. Personal Protection

Act Bill . . . . . . . . . . . . . . . . . . . . . . . 34

IV. A HANDGUN BAN IS UNREASONABLE

ON ITS FACE, RENDERING A REMAND

FOR FURTHER PROCEEDINGS

UNNECESSARY . . . . . . . . . . . . . . . . . . . . . 35

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

APPENDIX: THOSE JOINING IN

AMICI CURIAE BRIEF . . . . . . . . . . . . . . . . . . . . 1a

iv

TABLE OF AUTHORITIES

CASES Page

Nixon v. Administrator of General Services,

433 U.S. 425 (1977) . . . . . . . . . . . . . . . . . . . . . . . . 2

Parker v. District of Columbia, 478 F.3d 370

(D.C. Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

San Antonio Independent School District v.

Rodriguez, 411 U.S. 1 (1973) . . . . . . . . . . . . . . . . 36

CONSTITUTIONS

U.S. Const., Art. I, § 8 . . . . . . . . . . . . . . . . . . . . . . 7

U.S. Const., Art. I, § 8, cl. 16 . . . . . . . . . . . . . . . . 8

U.S. Const., Amendment I . . . . . . . . . . . . . . . . . 6, 7

U.S. Const., Amendment II . . . . . . . . . . . . . passim

U.S. Const., Amendment IV . . . . . . . . . . . . . . . . . . 6

U.S. Const., Amendment V . . . . . . . . . . . . . . . . . . 7

U.S. Const., Amendment VI . . . . . . . . . . . . . . . . . . 6

U.S. Const., Amendment VII . . . . . . . . . . . . . . . . . 6

v

U.S. Const., Amendment IX . . . . . . . . . . . . . . . . . . 6

U.S. Const., Amendment X . . . . . . . . . . . . . . . . . 7

U.S. Const., Amendment XIII . . . . . . . . . . . . . . . 13

U.S. Const., Amendment XIV . . . . . . . . . . . . . 15-19

STATUTES AND ORDINANCES

Civil Rights Act, 14 Stat. 27 (1866) . . . . . 13, 16, 19

Department of Homeland Security

Appropriations Act, 2007, P.L. 109-295,

120 Stat. 1355 (2006) . . . . . . . . . . . . . . . . . . . 31, 33

Firearms Owners’ Protection Act, P.L. 99-308,

100 Stat. 449 (1986) . . . . . . . . . . . . . . . . . . . 4, 26-28

Freedmen’s Bureau Act, 14 Stat. 173

(1866) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 13, 18

Gun Control Act, P.L. 90-618, 82 Stat. 1213

(1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 26, 35

Property Requisition Act, P.L. 274,

55 Stat. 742 (1941) . . . . . . . . . . . . . . . . . . 3, 22-25

Protection of Lawful Commerce in Arms Act,

P.L. 109-92, 119 Stat. 2095 (2005) . . . . . . 4, 28-31

vi

Robert T. Stafford Disaster Relief and Emergency

Assistance Act, in Department of Homeland

Security Appropriations Act, 2007, Title IV, § 557,

P.L. 109-295, 120 Stat 1355 (2006) . . . . . . 4, 31-34

18 U.S.C. § 922(g) . . . . . . . . . . . . . . . . . . . . . . . . . 36

18 U.S.C. § 922(o) . . . . . . . . . . . . . . . . . . . . . . . . . 36

18 U.S.C. § 922(p) . . . . . . . . . . . . . . . . . . . . . . . . . 36

18 U.S.C. § 922(t) . . . . . . . . . . . . . . . . . . . . . . . . . 36

18 U.S.C. § 923 . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

18 U.S.C. § 926A . . . . . . . . . . . . . . . . . . . . . . . . . . 28

42 U.S.C. § 1981 . . . . . . . . . . . . . . . . . . . . . . . . . . 16

42 U.S.C. § 5207 . . . . . . . . . . . . . . . . . . . . . . . 31, 32

27 Stat. 116 (1892) . . . . . . . . . . . . . . . . . . . . . . . . 19

31 Stat. 1328 (1901) . . . . . . . . . . . . . . . . . . . . . . . 19

34 Stat. 808 (1906) . . . . . . . . . . . . . . . . . . . . . . . . 20

47 Stat. 650 (1932) . . . . . . . . . . . . . . . . . . . . . . . . 20

57 Stat. 586 (1943) . . . . . . . . . . . . . . . . . . . . . . . . 21

vii

67 Stat. 93 (1953) . . . . . . . . . . . . . . . . . . . . . . . . . 21

D.C. Code § 1-303.43 . . . . . . . . . . . . . . . . . . . . . . 20

D.C. Code, Chapter 45 . . . . . . . . . . . . . . . . . . . . . 21

LEGISLATIVE MATERIALS

Cong. Globe . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-18

Cong. Rec. . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

District of Columbia Personal Protection Act

Bills, H.R. 5013 (2004), S. 1001,

H.R. 1399 (2007) . . . . . . . . . . . . . . . . . . . . 4, 34-35

Freedmen’s Bureau Bill, H.R. 613 (1866) . . . . . . . 16

House Report 767, 72d Cong., 1st Sess. (1932) . 21

Disaster Recovery Personal Protection Act Bill,

H.R. 5013 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . 32

Rpt. No. 1120 [to accompany S. 1579], House

Committee on Military Affairs, 77th Cong.,

1st Sess. (Aug. 4, 1941) . . . . . . . . . . . . . . . . . . . . 23

Rpt. No. 1214, Conference Report [to accompany

S. 1579], 77th Cong., 1st Sess. (Sept. 25, 1941) . 25

viii

The Right to Keep and Bear Arms: Report of the

Subcommittee on the Constitution, Senate

Judiciary Committee, 97th Cong., 2d Sess. (1982) 27

Senate Report 575, 72d Cong., 1st Sess. (1932) . 21

OTHER AUTHORITIES

A. Amar, The Bill of Rights & the Fourteenth

Amendment, 101 YALE L.J. 1193 (Apr. 1992) . . 13

D. Caplan, Restoring the Balance: The Second

Amendment Revisited, 5 FORDHAM URBAN

L.J. 31 (1976), reprinted in 131 CONG. REC.

S8692 (June 24, 1985) . . . . . . . . . . . . . . . . . . . . . 27

CREATING THE BILL OF RIGHTS (1991) . . . . . . . . . . 12

DOCUMENTARY HISTORY OF THE FIRST FEDERAL

CONGRESS (1986-1995) . . . . . . . . . . . . . . . . . . . 9-11

DOCUMENTARY HISTORY OF THE RATIFICATION

OF THE CONSTITUTION (1976, 2000) . . . . . . . . 11, 12

FEDERAL GAZETTE, June 18, 1789 . . . . . . . . . . . . 10

S. Halbrook, Congress Interprets the Second

Amendment: Declarations by a Co-Equal Branch

on the Individual Right to Keep and Bear Arms,

62 TENNESSEE LAW REVIEW 597 (Spring 1995). . 22

ix

S. Halbrook, FREEDMEN, THE FOURTEENTH

AMENDMENT, & THE RIGHT TO BEAR ARMS,

1866-1876 (1998) . . . . . . . . . . . . . . . . . . . . . . 13-14

S. Halbrook, Second-Class Citizenship and the

Second Amendment in the District of Columbia,

5 GEORGE MASON UNIVERSITY CIVIL RIGHTS

LAW JOURNAL, Nos. 1 & 2, 105 (1995). . . . . . . . . 19

S. Halbrook, To Keep and Bear Their Private Arms:

The Adoption of the Second Amendment, 1787-1791,

10 N.Ky.L.Rev. 13 (1982), reprinted in 131 Cong. Rec.

S9105 (July 9, 1985) . . . . . . . . . . . . . . . . . . . . . . 27

James C. Hutson, The Bill of Rights: The Roger

Sherman Draft, in THIS CONSTITUTION (1988) . . 10

JOURNAL OF THE FIRST SESSION OF THE SENATE

(1820) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

PAPERS OF JAMES MADISON (1973, 1979) . . . 7, 9, 10

WILLIAM BLACKSTONE, COMMENTARIES . . . . . . . . . 7

1

No counsel for any party to this case authored this brief1

in whole or in part, no such counsel or a party made a monetary

contribution intended to fund the preparation or submission of

the brief, and no person or entity other than the Amici Curiae or

their counsel made such a monetary contribution. This brief is

filed with the written consent of all parties, seven-days notice

having been provided to them of this filing.

STATEMENT OF INTEREST

OF AMICI CURIAE

The Amici Curiae include Senator Kay Bailey

Hutchison, the lead member, and 54 other members of

the United States Senate; the President of the United

States Senate; and 250 members of the United States

House of Representatives. See Appendix herein. As

Federal officials, we have a fundamental interest in

protecting the constitutional rights of our constituents

and the American people in general.1

The Congress has a long history of protecting

the right of the people to keep and bear arms. Like

the rest of the Bill of Rights, the Second Amendment

was proposed to the States by the Congress in 1789.

On several occasions, in different epochs of American

history, the Congress enacted statutory texts which

explicitly declared its understanding of the Second

Amendment as guaranteeing fundamental, individual

rights.

Congress interprets the Constitution in deciding

what laws to pass. As on other issues, this has

historically been the case regarding the Second

Amendment and the District of Columbia. “In the

2

performance of assigned constitutional duties each

branch of the Government must initially interpret the

Constitution, and the interpretation of its powers by

any branch is due great respect from the others.”

Nixon v. Administrator of General Services, 433 U.S.

425, 703 (1977).

The Amici Curiae wish to bring their unique

perspective to this Court’s attention to explain to the

Court the historical meaning of the Second

Amendment as understood by the Congress, and why

the District’s firearms prohibitions at issue infringe on

the rights of the law-abiding citizens of the District of

Columbia as guaranteed by the Second Amendment.

SUMMARY OF ARGUMENT

The Second Amendment provides: “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.” Congress adopted that

wording and proposed it to the States in 1789. It

became part of the Bill of Rights which the States

ratified in 1791. As the text and the drafting history

demonstrate, the Amendment was intended to

guarantee the right of individuals to possess and keep

ordinary firearms.

Following the abolition of slavery, Congress

sought to end the incidents of slavery, including

prohibitions on possession of firearms by African

Americans. In 1866, over two-thirds of Congress

passed the Freedmen’s Bureau Act, which declared

3

protection for the “full and equal benefit of all laws

and proceedings concerning personal liberty, personal

security, and . . . estate . . ., including the

constitutional right to bear arms . . . .”

In passing firearms regulations for the District,

Congress has been sensitive to Second Amendment

concerns. An 1892 enactment prohibiting the carrying

of concealed weapons exempted one’s place of business

and dwelling house. In 1906, Congress empowered the

District to pass “such usual and reasonable police

regulations” deemed necessary to regulate firearms,

which today remains the District’s only delegation to

regulate firearms. A ban on handguns is both unusual

and unreasonable. In 1932 Congress passed a

comprehensive firearms act which remains largely in

place. As the Senate report for that act stated, “the

right of an individual to possess a pistol in his home or

on land belonging to him would not be disturbed by

the bill.”

In 1941, Congress enacted the Property

Requisition Act, which authorized the President to

requisition certain types of property. The Act declared

that it must not be construed “to authorize the

requisitioning or require the registration of any

firearms possessed by any individual for his personal

protection or sport” unless prohibited or already

required to be registered, or “to impair or infringe in

any manner the right of any individual to keep and

bear arms . . . .”

The Gun Control Act of 1968 declared that “this

title is not intended to discourage or eliminate the

4

private ownership or use of firearms by law-abiding

citizens for lawful purposes.” And in the Firearms

Owners’ Protection Act of 1986, over two-thirds of

Congress found that the rights of citizens “to keep and

bear arms under the second amendment to the United

States Constitution” as well as other constitutional

rights “require additional legislation to correct existing

firearms statutes and enforcement policies.”

Attempts to ban handguns through litigation led

Congress to enact the Protection of Lawful Commerce

in Arms Act in 2005. Approximately two-thirds of

Congress found that the Second Amendment “protects

the rights of individuals, including those who are not

members of a militia or engaged in military service or

training, to keep and bear arms.” The Act precludes

lawsuits against the lawful industry “to preserve a

citizen’s access to a supply of firearms and

ammunition for all lawful purposes . . . .”

Confiscations of firearms in the wake of

Hurricane Katrina led Congress in 2006 to amend the

Robert T. Stafford Disaster Relief and Emergency

Assistance Act to forbid seizures of lawful firearms in

disasters. Over two-thirds of the House enacted

Findings that the seizures violated citizens’ Second

Amendment rights to have firearms for protection in

the home and elsewhere. The Findings were deleted

when the bill was added to an appropriations bill in

the Senate, but its underlying basis in the Second

Amendment remained understood.

The “District of Columbia Personal Protection

Act,” a bill which passed the House in 2004 and is

5

currently pending, includes the Finding that:

“Legislation is required to correct the District of

Columbia’s law in order to restore the fundamental

rights of its citizens under the Second Amendment . .

. .”

In sum, historically Congress has interpreted

the Second Amendment as recognizing the right of

law-abiding individuals to keep and bear arms. This

Court should give due deference to the repeated

findings over different historical epochs by Congress,

a co-equal branch of government, that the Amendment

guarantees the personal right to possess firearms.

The District’s prohibitions on mere possession

by law-abiding persons of handguns in the home and

having usable firearms there are unreasonable per se.

No purpose would be served by remanding this case

for further fact finding or other proceedings. This

Court should affirm the decision below, Parker v.

District of Columbia, 478 F.3d 370 (D.C. Cir. 2007).

ARGUMENT

I. ORIGINAL INTENT AND EARLY

INTERPRETATION

A. The Text: Rights of the People

vs. State Powers

The Second Amendment provides: “A well

regulated militia, being necessary to the security of a

free state, the right of the people to keep and bear

6

See also U.S. Const., Amend. VI (“the accused shall enjoy2

the right to a speedy and public trial”); Amend. VII (“the right of

trial by jury shall be preserved”).

It violates ordinary word usage to say that “the people”3

means only such persons as the government selects, and that one

has a “right” to do something only if commanded by the

government. Yet these are the premises of the “collective rights”

view.

arms, shall not be infringed.” This declares a political

principle and then guarantees a substantive right.

The term “the people” is in juxtaposition to the

government, federal or State. Only individuals have

“rights,” while the United States and the States have

“powers.”

The phrase “the right of the people” also appears

in the First Amendment – “Congress shall make no

law . . . abridging . . . the right of the people peaceably

to assemble, and to petition the government for a

redress of grievances.” The Fourth Amendment

guarantees: “The right of the people to be secure in

their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated . . . .”

The Ninth Amendment uses the same

phraseology: “The enumeration in the Constitution, of

certain rights, shall not be construed to deny or

disparage others retained by the people.” These2

guarantees protect individuals from government

action, and do not delegate or reserve powers to

governmental bodies.3

7

The First Amendment too has “free State” aims. “The4

liberty of the press is indeed essential to the nature of a free state

. . . .” 4 WILLIAM BLACKSTONE, COMMENTARIES *151-152.

“Faithful members of a free State” signed the Memorial and

Remonstrance Against Religious Assessments. 8 PAPERS OF

JAMES MADISON 298-99 (1973).

The constitutional text distinguishes between

“the people,” “the militia,” and the “States.” The

Second Amendment refers to “a well regulated

militia,” but the right to keep and bear arms is

guaranteed to “the people.” The Fifth Amendment

requires indictment by a grand jury except “in the

Militia, when in actual service in time of War or public

danger,” a class that contrasts with “the people” who

may bear arms under the Second Amendment. The

Tenth Amendment refers to powers “reserved to the

states respectively, or to the people.”

The Second Amendment refers to the right to

“keep” arms (such as at home) as well as to “bear”

arms (meaning to carry them). Protected arms include

commonly-kept firearms that one can keep and carry

for lawful purposes, such as ordinary rifles, handguns,

and shotguns, and not crew-served or heavy weapons.

The Amendment declares a well regulated

militia to be necessary to the security of a “free State,”

which means a free country, and is not restricted to a

State government.4

Article I, § 8, declares the “powers” of Congress,

including its sharing of power over the militia with the

8

U.S. Const., Article I, § 8, clause 16 provides that5

“Congress shall have power”:

To provide for organizing, arming, and

disciplining, the Militia, and for governing such

Part of them as may be employed in the Service

of the United States, reserving to the States

respectively, the Appointment of the Officers, and

the Authority of training the Militia according to

the discipline prescribed by Congress . . . .

The lone militiaman compelled by law to render service6

would have little or no incentive or means to take political or

States, and the Tenth Amendment declares5

undelegated “powers” to be reserved to the States or to

the people. No “rights” are delegated to the United

States or reserved to the States. Only “the people” –

individuals – have “rights.”

Where a State power is reserved or restricted,

the Constitution names the State as the subject entity.

It does not name the people the State may employ or

conscript as the subject entity, other than in

describing the State power. For instance, Congress

has power to provide for organizing the militia,

“reserving to the States respectively, the Appointment

of the Officers . . . .” U.S. Const., Art. I, § 8, cl. 16. It

is not declared that “the right of the Officers of the

militia to be appointed by the States shall not be

infringed.” Similarly, the Second Amendment does

not declare that “the right of the persons in the militia

to be armed as required by the States shall not be

infringed.” Instead, it recognizes that “the right of the

people to keep and bear arms, shall not be infringed.”6

9

legal action to protect any such State power. If the States are the

beneficiaries of constitutional protection, they would have the

incentive and the means to guard their prerogatives. When

analyzed closely, the “collective rights” reading of the Second

Amendment is simply implausible.

11 DOCUMENTARY H ISTORY OF THE FIRST FEDERAL7

CONGRESS 820 (1992).

12 PAPERS OF JAMES MADISON 193-94 (1979).8

In sum, the Second Amendment guarantees an

individual right to keep and bear arms. Recognition of

that right promotes the well regulated militia

necessary for a free State’s security.

B. Drafting the Amendment in 1789

On June 8, 1789, Rep. James Madison

introduced what would become the Bill of Rights in the

House of Representatives, stating that it would

“expressly declare the great rights of mankind secured

under this constitution.” In a draft of his speech,7

Madison referred to the rights of “freedom of press –

Conscience . . . arms” as “private rights.” His draft of8

the arms guarantee stated: “The right of the people to

keep and bear arms shall not be infringed; a well

armed, and well regulated militia being the best

security of a free country: but no person religiously

10

4 DOCUMENTARY HISTORY OF THE FIRST FEDER AL9

CONGRESS 10 (1986).

FEDERAL GAZETTE, June 18, 1789, at 2, col. 1.10

12 PAPERS OF JAMES MADISON 239-40, 257 (1978).11

18 James C. Hutson, The Bill of Rights: The Roger12

Sherman Draft, in THIS CONSTITUTION 36 (1988). Even so, in

debate on the militia bill the following year, Sherman “conceived

it to be the privilege of every citizen, and one of his most essential

rights, to bear arms, and to resist every attack upon his liberty

or property, by whomsoever made. The particular states, like

private citizens, have a right to be armed . . . .” 14 DOCUMENTARY

HISTORY OF THE FIRST FEDERAL CONGRESS 92-3 (1995).

scrupulous of bearing arms shall be compelled to

render military service in person.” 9

Ten days later, Federalist Tench Coxe

explained: “As civil rulers, not having their duty to the

people duly before them, may attempt to tyrannize,

and as the military forces which must be occasionally

raised to defend our country, might pervert their

power to the injury of their fellow-citizens, the people

are confirmed by the next article in their right to keep

and bear their private arms.” Madison endorsed10

Coxe’s analysis.11

Madison’s draft was referred to a House Select

Committee. Roger Sherman, a committee member,

drafted his own amendments, including that “The

militia shall be under the government of the laws of

the respective states, when not in the actual service of

the United States . . . .” The Committee reported a12

11

4 DOCUMENTARY HISTORY OF THE FIRST FEDER AL13

CONGRESS 28 (1986). One writer saw the Committee

amendments as reflecting the proposals by Samuel Adams in the

Massachusetts ratification convention, which included “that the

said constitution be never construed to authorize Congress . . . to

prevent the people of the United States who are peaceable

citizens, from keeping their own arms . . . .” 6 DOCUMENTARY

HISTORY OF THE RATIFICATION OF THE CONS TITUTION 1453 (2000).

Elbridge Gerry argued: “A well regulated militia being14

the best security of a free state, admitted an idea that a standing

army was a secondary one.” 11 DOCUMENTARY HISTORY OF THE

FIRST FEDERAL CONGRESS 1287-88 (1992).

Id. at 1309. See also id. at 1285-86.15

revised version of Madison’s draft: “A well regulated

militia, composed of the body of the people, being the

best security of a free State, the right of the people to

keep and bear arms shall not be infringed; but no

person religiously scrupulous shall be compelled to

bear arms.”13

While “a free country” was changed to “a free

state,” the adjective “free” was retained, thus

differentiating other textual uses of “State” to denote

the State governments.

In House debate, disagreement was expressed

to the wording of the militia declaration. The final14

clause was amended to provide that the religiously

scrupulous would not be compelled to bear arms “in

person.” No objection was expressed to the phrase15

12

House Speaker Frederick A. Muhlenberg wrote that the16

House version “takes in the principal Amendments which our

Minority had so much at Heart.” CREATING THE BILL OF R IGHTS

280 (1991). The Minority in the Pennsylvania convention

proposed in part: “That the people have a right to bear arms for

the defense of themselves and their own state, or the United

States, or for the purpose of killing game; and no law shall be

passed for disarming the people or any of them, unless for crimes

committed, or real danger of public injury from individuals . . . .”

2 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE

CONSTITUTION 623-24 (1976).

JOURNAL OF THE FIRST SESSION OF THE SENATE 7117

(1820).

Id. at 77.18

Id.19

“the right of the people to keep and bear arms.”16

The Senate revised the House language to

render the militia clause more concise and delete the

objector clause: “A well regulated militia, being the

best security of a free state, the right of the people to

keep and bear arms, shall not be infringed.” The17

Senate rejected a proposal to add “for the common

defence” after “bear arms,” making clear that the18

right was not limited to that purpose. The Senate

changed “the best security of a free state” to

“necessary to the security of a free state.” The19

Amendment had reached its final form.

Separately from the bill of rights, the Senate

considered structural amendments that affected the

federal-state balance. It rejected the following: “That

13

Id. at 75.20

14 Stat. 173, 176 (1866).21

each state, respectively, shall have the power to

provide for organizing, arming, and disciplining its

own militia, whensoever Congress shall omit or

neglect to provide for the same . . . .” This highlights20

the distinction between the right of the people to have

arms and the state militia power.

In sum, the Second Amendment guarantees “the

right of the people,” which includes residents of the

seat of government, to keep and bear arms. This in

turn promotes a well regulated militia, seen as

necessary for a free state’s security.

C. The Freedmen’s Bureau Act of 1866

Abolition of slavery nationwide by the

Thirteenth Amendment in 1865 did not end the

incidents of slavery, which Congress sought to

eradicate in 1866 with passage of the Civil Rights Act

and the Freedmen’s Bureau Act. The latter declared

protection for the “full and equal benefit of all laws

and proceedings concerning personal liberty, personal

security, and . . . estate . . ., including the

constitutional right to bear arms . . . .” That text and21

the debates on both are key to understanding how

Congress interpreted the Second Amendment only 75

14

See A. Amar, The Bill of Rights & the Fourteenth22

Amendment, 101 YALE L.J. 1193, 1245 n.228 (Apr. 1992);

S T E P H E N P. H A L B R O O K , FR E E DM E N , T HE FOU R T E E N T H

AMENDMENT, & THE RIGHT TO BEAR ARMS, 1866-1876, 1-55

(1998).

CONG. GLOBE, 39th Cong., 1st Sess. 129 (Jan. 5, 1866).23

Id. at 209, 211 (Jan. 12, 1866).24

Id. at 217 (Jan. 12, 1866).25

Id. at 337 (Jan. 22, 1866).26

years after it became part of the Constitution in 1791.22

On January 5, 1866, Senator Lyman Trumbull

introduced S. 60, the Freedmen’s Bureau Bill, and S.

61, the Civil Rights Bill. Both included among “civil23

rights or immunities” the right “to have full and equal

benefit of all laws and proceedings for the security of

person and estate.”24

To exemplify their concerns, Rep. Zachariah

Chandler endorsed the view that freedom for the

slaves required, among other things: “‘The right of the

people to keep and bear arms’ must be so understood

as not to exclude the colored man from the term

‘people.’” Senator Charles Sumner noted a petition of25

black South Carolinians “that they should have the

constitutional protection in keeping arms . . . and in

complete liberty of speech and of the press.”26

After the Senate passed S. 60, the House

amended it to protect the civil right to “the security of

person and estate, including the constitutional right to

15

Id. at 654 (Feb. 5, 1866), 688 (Feb. 6, 1866). 27

Id. at 743 (Feb. 8, 1866).28

Id. at 748 (Feb. 8, 1866), 775 (Feb. 9, 1866) (passage);29

1292 (Mar. 9, 1866) (text). Rep. William Lawrence quoted a

military order that “civil rights and immunities” included: “The

constitutional rights of all loyal and well disposed inhabitants to

bear arms, will not be infringed . . . .” Id. at 908-09 (Feb. 17,

1866).

Id. at 916 (Feb. 19, 1866).30

Id. at 943 (Feb. 20, 1866).31

bear arms.” Senator Trumbull recommended that27

the Senate concur, noting that the reference to the

right to bear arms “does not alter the meaning.”28

As passed by both Houses, the Freedmen’s

Bureau Bill provided that where judicial proceedings

were interrupted, military protection would be

extended to protect all person’s “civil rights or

immunities,” including “the right . . . to have full and

equal benefit of all laws and proceedings for the

security of person and estate, including the

constitutional right of bearing arms . . . .”29

President Andrew Johnson vetoed the

Freedmen’s Bureau Bill, although his objections were

irrelevant to the right to bear arms. An override vote30

barely failed.31

Meanwhile, the Fourteenth Amendment was

working its way through Congress. Senator Samuel

Pomeroy noted “safeguards of liberty,” including: “He

16

Id. at 1182 (Mar. 5, 1866).32

Id. at 1291-92 (Mar. 9, 1866).33

14 Stat. 27 (1866). This remains the law today. See 4234

U.S.C. § 1981.

CONG. GLOBE, 39th Cong., 1st Sess. 2765-66 (May 23,35

1866).

should have the right to bear arms for the defense of

himself and family and his homestead.”32

In debate on the Civil Rights Bill, Rep. Bingham

explained that the provisions of the Freedmen’s

Bureau Bill “enumerate the same rights and all the

rights and privileges that are enumerated in the first

section of this bill . . . .” As passed, the Civil Rights33

Act recognized the right of each “to full and equal

benefit of all laws and proceedings for the security of

person and property, as is enjoyed by white citizens .

. . .”34

On May 23, Senator Jacob Howard introduced

the Fourteenth Amendment, referring to “the personal

rights guaranteed and secured by the first eight

amendments of the Constitution; such as . . . the right

to keep and bear arms. . . . The great object of the first

section of this amendment is, therefore, to restrain the

power of the States and compel them at all times to

respect these great fundamental guarantees.” 35

Also on May 23, the second Freedmen’s Bureau

17

Id. at 2773 (May 23, 1866). The bill had been reported36

by Rep. Eliot on behalf of the Select Committee on Freedmen’s

Affairs. Id. at 2743 (May 22, 1866).

Id. at 3412 (June 26, 1866).37

Id. at 2773 (May 23, 1866).38

Id. at 2774.39

Id. at 2775.40

Id. at 2878 (May 29, 1866).41

Bill, H.R. 613, was debated. Rep. Eliot observed that36

§ 8 – which recognized “the constitutional right to bear

arms” – “simply embodies the provisions of the civil37

rights bill.” He recited a report about black soldiers38

returning home to Kentucky: “Their arms are taken

from them by the civil authorities . . . . Thus the right

of the people to keep and bear arms as provided in the

Constitution is infringed . . . .” This rendered the39

freedmen “defenseless, for the civil-law officers disarm

the colored man and hand him over to armed

marauders.” 40

On May 29, the House passed the Freedmen’s

Bureau Bill and then took up the Fourteenth

Amendment. As explained by Rep. George W. Julian,41

the constitutional amendment was needed to uphold

the Civil Rights Act, which

is pronounced void by the jurists and

courts of the South. Florida makes it a

misdemeanor for colored men to carry

18

Id. at 3210 (June 17, 1866).42

Id. at 3850 (July 16, 1866).43

Id. at 3842.44

14 Stat. 173, 176-77 (1866).45

weapons without a license to do so from

a probate judge, and the punishment of

the offense is whipping and the pillory. .

. . Cunning legislative devices are being

invented in most of the States to restore

slavery in fact.42

Both Houses passed the second Freedmen’s

Bureau Bill, which was again vetoed. The House

overrode the veto by 104 to 33, or 76%, and the43

Senate did so by 33 to 12, or 73%. As finally passed44

into law, § 14 of the Freedmen’s Bureau Act provided

that in States where judicial proceedings were

interrupted or which had not been restored to the

Union:

the right . . . to have full and equal

benefit of all laws and proceedings

concerning personal liberty, personal

security, and the acquisition, enjoyment,

and disposition of estate, real and

personal, including the constitutional

right to bear arms, shall be secured to

and enjoyed by all the citizens of such

State or district without respect to race

or color or previous condition of slavery.45

19

See generally Stephen P. Halbrook, Second-Class46

Citizenship and the Second Amendment in the District of

Columbia, 5 GEORGE MASON UNIVERSITY CIVIL RIGHTS LAW

JOURNAL, Nos. 1 & 2, 105 (1995).

27 Stat. 116 (1892). “Necessity” would be changed to47

“necessary self-defense.” 31 Stat. 1328 (1901).

The same section extended military jurisdiction to all

cases “concerning the free enjoyment of such

immunities and rights.”

The same more than two-thirds of Congress

which enacted this language also approved the more

general language of the Civil Rights Act and the

Fourteenth Amendment. Congress viewed the Second

Amendment as recognizing individual rights to all,

including freed slaves, and as not being limited to

militias, some of which violated such rights.

II. CONTINUATION OF A

CONSISTENT READING

A. Regulation in the District of Columbia

In legislating for the District of Columbia,

Congress has been sensitive to Second Amendment

rights. In 1892, Congress made it an offense in the46

District to carry a pistol concealed about one’s person,

with exemptions for one’s place of business and

dwelling house, and a concealed carry permit available

on showing the “necessity” thereof. 47

Quoting the Second Amendment, Senator Roger

20

CONG. REC. 5788 (July 6, 1892).48

Id. at 5789.49

34 Stat. 808, 809 (1906). Codified at D.C. Code § 1-50

303.43.

Other than the District, Chicago is the only other city51

nationwide which bans handguns. In addition, not a single State

bans handguns.

47 Stat. 650 (1932).52

Q. Mills objected: “You render the citizens of the

country more defenseless by depriving them of the

natural right to carry the arms which are necessary to

secure their persons and their lives.” Senator48

Edward O. Wolcott responded that “this bill is

intended to apply to the criminal classes. . . . It is not

intended to affect the constitutional right of any

citizen who desires to obey the law.”49

In 1906, Congress authorized the District to

pass “all such usual and reasonable police regulations

. . . as they may deem necessary for the regulation of

firearms,” which remains the sole enabling legislation

empowering it to regulate firearms. Yet the District’s50

prohibitions at issue are highly unusual and

unreasonable.51

Congress passed a comprehensive firearms act

for the District in 1932. It prohibited carrying a52

concealed pistol on or about one’s person without a

license, which would be issued to a person with good

reason to fear injury to his person or property or other

21

Id. at 651.53

Id.54

Senate Report 575, 72d Cong., 1st Sess., 3 (1932).55

House Report 767, 72d Cong., 1st Sess., at 2 (1932).56

57 Stat. 586 (1943).57

67 Stat. 93, 94 (1953).58

proper reason. A person who was convicted of a53

crime of violence could not possess a pistol.54

The Senate report noted that “the right of an

individual to possess a pistol in his home or on land

belonging to him would not be disturbed by the bill.”55

The House report stated that it would “meet the

legitimate needs of all who are charged with the duty

of protecting and defending life and property as well as

those citizens who require firearms for protection or

for sport . . . .”56

The 1932 act has remained in place with various

amendments. In 1943, Congress made it unlawful for

a person to “carry either openly or concealed on or

about his person” a pistol, with exceptions for one’s

home and business or under a permit. In 1953,57

Congress extended the prohibition on possession of

pistols to all felons and to drug addicts. 58

Elements of the above provisions passed by

Congress remain in Chapter 45 of the D.C. Code. The

provisions at issue were enacted by the District, and

they upset the balance enacted by Congress.

22

P.L. 274, 55 Stat. 742 (Oct. 16, 1941). See generally59

Stephen P. Halbrook, Congress Interprets the Second Amendment:

Declarations by a Co-Equal Branch on the Individual Right to

Keep and Bear Arms, 62 TENNESSEE LAW REVIEW 597, 618-31

(Spring 1995).

B. The Property Requisition Act of 1941

The Property Requisition Act of 1941, passed

just weeks before the attack on Pearl Harbor,

authorized the President to requisition property for

national defense. The Act declared that it must not be

construed “to authorize the requisitioning or require

the registration of any firearms possessed by any

individual for his personal protection or sport (and the

possession of which is not prohibited or the

registration of which is not required by existing law),”

or “to impair or infringe in any manner the right of

any individual to keep and bear arms . . . .” The59

Report of the House Committee on Military Affairs

included this explanation:

It is not contemplated or even inferred

that the President, or any executive

board, agency, or officer, would trespass

upon the right of the people in this

respect. There appears to be no occasion

for the requisition of firearms owned and

maintained by the people for sport and

recreation, nor is there any desire or

intention on the part of the Congress or

23

Rpt. No. 1120 [to accompany S. 1579], House Committee60

on Military Affairs, 77th Cong., 1st Sess., at 2 (Aug. 4, 1941).

the President to impair or infringe the

right of the people under section 2 [sic] of

the Constitution of the United States,

which reads, in part as follows: ‘the right

of the people to keep and bear arms shall

not be infringed.’ However, in view of

the fact that certain totalitarian and

dictatorial nations are now engaged in

the willful and wholesale destruction of

personal rights and liberties, our

committee deem it appropriate for the

Congress to expressly state that the

proposed legislation shall not be

construed to impair or infringe the

constitutional right of the people to bear

arms. . . . [T]here is no disposition on the

part of this Government to depart from

the concepts and principles of personal

rights and liberties expressed in our

Constitution.60

In debate, Rep. Edwin Arthur Hall of New York

noted: “Before the advent of Hitler or Stalin, who took

power from the German and Russian people, measures

were thrust upon the free legislatures of those

countries to deprive the people of the possession and

use of firearms, so that they could not resist the

encroachments of such diabolical and vitriolic state

police organizations as the Gestapo, the Ogpu, and the

24

87 CONG. REC., 77th Cong., 1st Sess., 6778 (Aug. 5,61

1941).

Id. at 6811 (Aug. 6, 1941). 62

Id. at 7097 (Aug. 13, 1941). Even so, Rep. A.J. May of63

Kentucky explained that “the right to keep means that a man can

keep a gun in his house and can carry it with him . . . and the

right to bear arms means that he can go hunting . . . .” Id. at

7098.

Id. at 7101.64

Id. See also id. at 7102 (Rep. John W. Patman of Texas)65

(“The people have a right to keep arms; therefore . . . they can

properly protect themselves.”); id. at 7103 (Rep. John J.

Sparkman of Alabama) (“The Constitution guarantees to every

Cheka.” He opposed taking away “the individual

rights and liberties of citizens of this Nation by

depriving the individual of the private ownership of

firearms and the right to use weapons in the

protection of his home, and thereby his country.”61

Senator Tom Connally of Texas favored “safeguarding

the right of individuals to possess arms.” 62

The conference committee deleted the ban on

registration, but kept the declaration against

infringing the right to bear arms. Rep. Paul Kilday63

of Texas warned that “registration of firearms is only

the first step. It will be followed by other

infringements of the right to keep and bear arms until

finally the right is gone.” The Second Amendment64

protects “our right to bear arms as private citizens,”

Rep. Lyle H. Boren of Oklahoma stated.65

25

citizen the right to keep and bears arms”).

Id. at 7164 (Aug. 13, 1941).66

Rpt. No. 1214, Conference Report [to accompany S.67

1579], 77th Cong., 1st Sess., at 2 (Sept. 25, 1941).

P.L. 274, 55 Stat. 742 (1941).68

A motion to recommit the bill to committee

passed by 154 to 24, and the committee restored the66

prohibition on firearm registration. As enacted into67

law, the Property Requisition Act conditioned the

President’s power to requisition property with military

uses as follows:

Nothing contained in this Act shall be

construed –

(1) to authorize the requisitioning

or require the registration of any

firearms possessed by any individual for

his personal protection or sport (and the

possession of which is not prohibited or

the registration of which is not required

by existing law), [or]

(2) to impair or infringe in any

manner the right of any individual to

keep and bear arms . . . .68

Once again, at a critical time in American

history, the Congress clarified its understanding that

the Second Amendment guarantees individual rights.

26

E.g., 114 CONG. REC. 22248-49 (July 19, 1968) (rejection69

by House of bill to require registration of handguns); 27427 (Sept.

18, 1968) (rejection by Senate of bill to require registration of

firearms).

§ 101, P.L. 90-618, 82 Stat. 1213 (1968).70

C. The Firearms Owners’ Protection

Act of 1986

In enacting the Gun Control Act of 1968,

Congress provided comprehensive regulations, but

rejected bills to prohibit or to require registration of

firearms. The Act declared:69

it is not the purpose of this title to place

any undue or unnecessary Federal

restrictions or burdens on law-abiding

citizens with respect to the acquisition,

possession, or use of firearms appropriate

to the purpose of hunting, trap shooting,

target shooting, personal protection, or

any other lawful activity, and that this

title is not intended to discourage or

eliminate the private ownership or use of

firearms by law-abiding citizens for

lawful purposes.70

When experience proved the need for reform,

Congress enacted the Firearms Owners’ Protection Act

of 1986 (FOPA). In doing so, Congress again declared

by law the individual character of the rights protected

by the Second Amendment:

The Congress finds that--

27

§1(b), P.L. 99-308, 100 Stat. 449 (1986). It also71

reaffirmed the above 1968 declaration.

The Right to Keep and Bear Arms: Report of the72

Subcommittee on the Constitution, Senate Judiciary Committee,

97th Cong., 2d Sess., 12 (1982). See also David Caplan, Restoring

the Balance: The Second Amendment Revisited, 5 FORDHAM

URBAN L.J. 31 (1976), reprinted in 131 CONG. REC. S8692 (June

24, 1985); Stephen P. Halbrook, To Keep and Bear Their Private

Arms: The Adoption of the Second Amendment, 1787-1791, 10

N.KY.L.REV. 13 (1982), reprinted in 131 CONG . REC. S9105 (July

9, 1985).

(1) the rights of citizens--

(A) to keep and bear arms under

the second amendment to the United

States Constitution; [(B)-(D) deleted] . . .

require additional legislation to correct

existing firearms statutes and

enforcement policies . . . .71

The finding that the Second Amendment

guarantees “the rights of citizens” to keep and bear

arms was supported by a scholarly report by the

Senate’s Subcommittee on the Constitution, which

concluded that “the history, concept, and wording of

the second amendment to the Constitution of the

United States, as well as its interpretation by every

major commentator and court in the first half-century

after its ratification, indicates that what is protected

is an individual right of a private citizen to own and

carry firearms in a peaceful manner.”72

The legislative record is replete with expressed

intentions to protect the Second Amendment rights of

28

18 U.S.C. § 926A.73

131 CONG. REC. S9114 (July 9, 1985).74

132 CONG. REC. H1695 (Apr. 9, 1986).75

131 CONG. REC. S9175 (July 9, 1985).76

132 CONG. REC. H1753 (Apr. 10, 1986).77

individuals. As an example, FOPA preempted state

laws which prohibit interstate travel with lawful

firearms. Senator Steve Symms of Idaho explained:73

“The intent of this amendment . . . is to protect the

second amendment rights of law-abiding citizens

wishing to transport firearms through States which

otherwise prohibit the possession of such weapons.”74

Similarly, Rep. Tommy Robinson of Arkansas stated

that “our citizens have a constitutional right to bear

arms . . . and to travel interstate with those

weapons.”75

The Firearms Owners’ Protection Act passed the

Senate by a vote of 79 to 15, or 84%. The bill passed76

the House by a vote of 292 to 130, or 69%.77

III. LEGISLATION IN THE 21ST CENTURY

A. Protection of Lawful Commerce in Arms Act

In the Protection of Lawful Commerce in Arms

Act of 2005 (“PLCAA”), Congress once again declared

the individual character of Second Amendment rights

29

P.L. 109-92, 119 Stat. 2095 (2005).78

Id., § 2(a).79

Id., § 2(a)(3).80

Id., § 2(a)(4).81

and sought to preclude firearms, particularly

handguns, from being banned through litigation.78

Municipalities sued the firearms industry claiming

that the lawful manufacture and distribution of

firearms is a public nuisance. PLCAA begins with the

following Findings:

(1) The Second Amendment to the

United States Constitution provides that

the right of the people to keep and bear

arms shall not be infringed.

(2) The Second Amendment to the

United States Constitution protects the

rights of individuals, including those who

are not members of a militia or engaged

in military service or training, to keep

and bear arms.79

The lawsuits sought damages and injunctive

relief against the firearms industry for injuries caused

by criminals and other third parties who misuse

firearms. Yet the manufacture, possession, sale, and80

use of firearms is strictly regulated by law. Besides81

unreasonably burdening interstate and foreign

commerce, imposition of liability “threatens the

diminution of a basic constitutional right and civil

30

Id., § 2(a)(6).82

Id., § 2(b)(2).83

151 CONG. REC. S9378 (July 29, 2005).84

Id. at S9396.85

151 CONG. REC. H9006-07 (Oct. 20, 2005).86

liberty.”82

Purposes of PLCAA include “to preserve a

citizen’s access to a supply of firearms and

ammunition for all lawful purposes, including hunting,

self-defense, collecting, and competitive or recreational

shooting.”83

Senator John Thune of South Dakota noted that

the bill protected law-abiding gun owners, dealers, and

manufacturers “who are having that second

amendment right infringed upon by those who are

trying to destroy an industry that, for a couple of

centuries now, has provided quality workmanship in

accordance with Federal and State laws.” The bill84

passed the Senate by a vote of 65 to 31, or just under

68%.85

Rep. Sam Graves of Missouri noted: “This law is

necessary to prevent a few state courts from

undermining our Second Amendment rights

guaranteed by the Constitution.” Rep. Joe Schwarz86

of Michigan averred that the Second Amendment’s

purposes are: “First, to ensure that citizens would

have the tools to protect their families and their homes

and, second, to ensure that an armed militia could be

31

Id. at H9009.87

Id. at H9010.88

Department of Homeland Security Appropriations Act,89

2007, Title IV, § 557, P.L. 109-295, 120 Stat 1355, 1391, 1392

(2006), codified at 42 U.S.C. § 5207.

42 U.S.C. § 5207(a).90

42 U.S.C. § 5207(b).91

called up to defend the country in emergencies.” The87

bill passed the House by a vote of 283 to 144, or just

over 66%.88

B. Disaster Relief & Emergency

Assistance Act Amendment

In 2006, Congress amended the Robert T.

Stafford Disaster Relief and Emergency Assistance Act

to forbid confiscation of lawful firearms in disasters.89

The enactment prohibits any federal agent or person

receiving federal funds from seizing “any firearm the

possession of which is not prohibited under Federal,

State, or local law,” from requiring “registration of any

firearm for which registration is not required by

Federal, State, or local law”; and from prohibiting a

firearm “in any place or by any person where such

possession is not otherwise prohibited by Federal,

State, or local law.” An exception exists for the90

temporary surrender of a firearm for entry in

transportation for rescue or evacuation. An91

32

42 U.S.C. § 5207(c).92

152 Cong. Rec. H5755, H5814 (July 25, 2006).93

individual aggrieved by a violation of this provision

has a private right of action against a person who

subjects the individual “to the deprivation of any of the

rights, privileges, or immunities secured by this

section.”92

The bill passed the House as H.R. 5013, the

Disaster Recovery Personal Protection Act, by a vote

of 322 yeas and 99 nays, or 76%. As passed, the bill93

included Findings recounting that in the wake of

Hurricane Katrina, law enforcement was overwhelmed

and citizens were threatened by criminal violence,

adding:

(4) Many of these citizens lawfully

kept firearms for the safety of

themselves, their loved ones, their

businesses, and their property, as

guaranteed by the Second Amendment,

and used their firearms, individually or

in concert with their neighbors, for

protection against crime.

(5) In the wake of Hurricane

Katrina, certain agencies confiscated the

firearms of these citizens in

contravention of the Second Amendment,

depriving these citizens of the right to

keep and bear arms and rendering them

helpless against criminal activity.

33

Id.94

152 Cong. Rec. S7455, S7489 (July 13, 2006)95

(amendment No. 4615 to H.R. 5441, which passed as the

Department of Homeland Security Appropriations Act, 2007,

supra).

(6) These confiscations were

carried out at gunpoint by nonconsensual

entries into private homes, by traffic

checkpoints, by stoppage of boats, and

otherwise by force. . . .

(11) These confiscations and

prohibitions, and the means by which

they were carried out, deprived the

citizens of Louisiana not only of their

right to keep and bear arms, but also of

their rights to personal security, personal

liberty, and private property, all in

violation of the Constitution and laws of

the United States.94

H.R. 5013 was referred to the Senate and was

then inserted as an amendment to an appropriations

bill. As a drafting practice, appropriations bills do95

not include findings, and the Findings in this bill were

thus deleted. But the bill remained grounded in the

Second Amendment. As explained by chief sponsor

Senator David Vitter (La.), “the language we do have

on the Senate floor . . . protects fundamental second

34

Id. at S7494. He added: “It [the Katrina emergency] is96

exactly that very reason that this second amendment right to

bear arms and use legally possessed firearms in defense of

yourself, your life, and your property is so crucial . . . .” Id.

150 Cong. Rec. H7758, H7777 (Sept. 29, 2004).97

S. 1001 currently has 44 bipartisan cosponsors, and H.R.98

1399 currently has 242 bipartisan cosponsors

amendment rights.”96

In sum, this is yet another instance in which the

Congress enacted legislation to protect the

fundamental, individual right of law-abiding citizens

to keep and bear arms.

C. The D.C. Personal Protection Act Bill

Bills have been pending in Congress that would

repeal the provisions at issue here. The “District of

Columbia Personal Protection Act,” a bill to restore

Second Amendment rights in the District of Columbia,

passed the House by a vote of 250 to 171 in 2004. In97

the current session of Congress, similar pending bills

include S. 1001, sponsored by Senator Kay Bailey

Hutchison (R-Tex.), and H.R. 1399, sponsored by Reps.

Mike Ross (D-Ark.) and Mark Souder (R-Ind.).98

The Findings set forth in § 2 of each version of

the above bills include: “The Second Amendment to

the United States Constitution protects the rights of

individuals, including those who are not members of a

militia or engaged in military service or training, to

35

keep and bear arms.” The District’s law-abiding

citizens are deprived of handguns that are commonly

kept by law-abiding persons throughout the United

States for lawful defense, which exacerbates the

District’s high murder rate. The Federal Gun Control

Act and the District’s criminal laws currently punish

possession and use of firearms by felons. The Findings

conclude: “Legislation is required to correct the

District of Columbia’s law in order to restore the

fundamental rights of its citizens under the Second

Amendment to the United States Constitution and

thereby enhance public safety.”

Although the above bills have not been enacted

into law, the Findings represent yet another instance

in which a House of Congress expressed the view that

the Second Amendment protects individual rights.

IV. A HANDGUN BAN IS UNREASONABLE

ON ITS FACE, RENDERING A REMAND FOR

FURTHER PROCEEDINGS UNNECESSARY

Congress has historically viewed the Second

Amendment as protecting from infringement the right

of the people at large to keep and bear arms. It has

further regarded ordinary, commonly-possessed rifles,

handguns, and shotguns to be constitutionally-

protected arms. It has also passed regulations for

engaging in firearms businesses and to require

background checks on firearm transferees, and has

restricted certain dangerous categories of persons from

36

18 U.S.C. § 923 (licencing), § 922(t) (background checks),99

and § 922(g) (prohibited persons).

E.g., 18 U.S.C. § 922(o) (non-grandfathered100

machineguns), § 922(p) (firearms not detectable by X-ray).

possession of firearms. None of these laws is called99

into question by the lower court’s limited holding.

The standard for whether a right is

“fundamental” is whether it is “explicitly or implicitly

protected by the Constitution, thereby requiring strict

judicial scrutiny.” San Antonio Independent School

Dist. v. Rodriguez, 411 U.S. 1, 17 (1973). The right of

the people to keep arms is obviously such a right. Yet

even if this Court applied a lower “reasonableness” test

as the standard of review, the District’s handgun ban

is unreasonable on its face. The lower court’s

categorical approach in holding a prohibition on

handguns to be unconstitutional per se was correct.

Where Congress has sought to restrict certain

firearms, some of which may have other characteristics

which overlap with handguns, it has defined them in

terms of specific categories. A holding by this Court100

that the District’s pistol ban violates the Second

Amendment would not apply to such firearms which

are restricted under other categories.

This case involves nothing more than the right

of law-abiding persons to keep common handguns and

usable firearms for lawful self-defense in the home.

Accordingly, no purpose would be served by remanding

this case for further fact finding or other proceedings.

37

CONCLUSION

This Court should affirm the judgment of the

court of appeals.

Respectfully submitted,

55 MEMBERS OF THE UNITED STATES SENATE, THE

PRESIDENT OF THE UNITED STATES SENATE, AND 250

MEMBERS OF THE UNITED STATES HOUSE OF

REPRESENTATIVES

AMICI CURIAE

STEPHEN P. HALBROOK*

10560 Main Street, Suite 404

Fairfax, VA 22030

(703) 352-7276

Counsel for Amici Curiae

*Counsel of Record

1a

APPENDIX:

THOSE JOINING IN AMICI CURIAE BRIEF

The following members of the United States

Congress, and President of the United States Senate

Richard B. Cheney, join in this amici curiae brief:

Senate

Senator A. Lamar Alexander (TN, R)

Senator A. Wayne Allard (CO, R)

Senator John A. Barrasso (WY, R)

Senator Max S. Baucus (MT, D)

Senator Robert F. Bennett (UT, R)

Senator Christopher S. Bond (MO, R)

Senator Samuel D. Brownback (KS, R)

Senator James P. D. Bunning (KY, R)

Senator Richard M. Burr (NC, R)

Senator Robert P. Casey, Jr. (PA, D)

Senator C. Saxby Chambliss (GA, R)

Senator Thomas A. Coburn (OK, R)

Senator W. Thad Cochran (MS, R)

Senator Norman Coleman, Jr. (MN, R)

Senator Susan M. Collins (ME, R)

Senator Robert P. Corker, Jr. (TN, R)

Senator John Cornyn, III (TX, R)

Senator Larry E. Craig (ID, R)

Senator Michael D. Crapo (ID, R)

Senator James W. DeMint (SC, R)

Senator Elizabeth H. Dole (NC, R)

2a

Senator Pete V. Domenici (NM, R)

Senator Michael B. Enzi (WY, R)

Senator Russell D. Feingold (WI, D)

Senator Lindsey O. Graham (SC, R)

Senator Charles E. Grassley (IA, R)

Senator Judd A. Gregg (NH, R)

Senator Charles T. Hagel (NE, R)

Senator Orrin G. Hatch (UT, R)

Senator Kay Bailey Hutchison (TX, R)

Senator James M. Inhofe (OK, R)

Senator John H. Isakson (GA, R)

Senator Timothy P. Johnson (SD, D)

Senator Jon L. Kyl (AZ, R)

Senator Blanche L. Lincoln (AR, D)

Senator Melquiades R. Martinez (FL, R)

Senator John S. McCain, III (AZ, R)

Senator A. Mitchell McConnell (KY, R)

Senator Lisa A. Murkowski (AK, R)

Senator E. Benjamin Nelson (NE, D)

Senator C. Patrick Roberts (KS, R)

Senator Kenneth L. Salazar (CO, D)

Senator Jefferson B. Sessions, III (AL, R)

Senator Richard C. Shelby (AL, R)

Senator Gordon H. Smith (OR, R)

Senator Olympia J. Snowe (ME, R)

Senator Arlen Specter (PA, R)

Senator Theodore F. Stevens (AK, R)

Senator John E. Sununu (NH, R)

Senator Jon Tester (MT, D)

Senator John R. Thune (SD, R)

Senator David B. Vitter (LA, R)

Senator George V. Voinovich (OH, R)

3a

Senator James H. Webb, Jr. (VA, D)

Senator Roger F. Wicker (MS, R)

House of Representatives

Representative Robert B. Aderholt (AL-04, R)

Representative W. Todd Akin (MO-2, R)

Representative Rodney M. Alexander (LA-5, R)

Representative Jason Altmire (PA-4, D)

Representative Michael A. Arcuri (NY-24, D)

Representative Joe Baca (CA-43, D)

Representative Michele M. Bachmann (MN-6, R)

Representative Spencer T. Bachus, III (AL-6, R)

Representative Brian Baird (WA-3, D)

Representative Richard H. Baker (LA-6, R)

Representative J. Gresham Barrett (SC-3, R)

Representative John J. Barrow (GA-12, D)

Representative Roscoe G. Bartlett (MD-6, R)

Representative Joe L. Barton (TX-6, R)

Representative Marion Berry (AR-1, D)

Representative Judith B. Biggert (IL-13, R)

Representative Brian P. Bilbray (CA-50, R)

Representative Gus M. Bilirakis (FL-9, R)

Representative Robert W. Bishop (UT-1, R)

Representative Sanford D. Bishop (GA-2, D)

Representative Marsha W. Blackburn (TN-7, R)

Representative Roy D. Blunt (MO-7, R)

Representative John A. Boehner (OH-8, R)

Representative Josiah R. Bonner, Jr. (AL-1, R)

Representative Mary Bono Mack (CA-45, R)

Representative John N. Boozman (AR-3, R)

4a

Representative D. Daniel Boren (OK-2, D)

Representative Leonard L. Boswell (IA-3, D)

Representative Frederick C. Boucher (VA-9, D)

Representative Charles W. Boustany, Jr. (LA-7, R)

Representative F. Allen Boyd, Jr. (FL-2, D)

Representative Nancy Boyda (KS-2, D)

Representative Kevin P. Brady (TX-8, R)

Representative Paul C. Broun (GA-10, R)

Representative Henry E. Brown, Jr. (SC-1, R)

Representative Virginia Brown-Waite (FL-5, R)

Representative Vernon G. Buchanan (FL-13, R)

Representative Michael C. Burgess (TX-26, R)

Representative Danny L. Burton (IN-5, R)

Representative Stephen E. Buyer (IN-4, R)

Representative Kenneth S. Calvert (CA-44, R)

Representative David L. Camp (MI-4, R)

Representative John B. T. Campbell, III (CA-48, R)

Representative Christopher B. Cannon (UT-3, R)

Representative Eric I. Cantor (VA-7, R)

Representative Shelley M. Capito (WV-2, R)

Representative Dennis A. Cardoza (CA-18, D)

Representative Christopher P. Carney (PA-10, D)

Representative John R. Carter (TX-31, R)

Representative Steven J. Chabot (OH-1, R)

Representative A. Benjamin Chandler, III (KY-6, D)

Representative J. Howard Coble (NC-6, R)

Representative Stephen I. Cohen (TN-9, D)

Representative Thomas J. Cole (OK-4, R)

Representative K. Michael Conaway (TX-11, R)

Representative James H. S. Cooper (TN-5, D)

Representative Joseph D. Courtney (CT-2, D)

Representative Jerry F. Costello (IL-12, D)

5a

Representative Robert E. Cramer, Jr. (AL-5, D)

Representative Ander Crenshaw (FL-4, R)

Representative Barbara L. Cubin (WY-AL, R)

Representative R. Enrique Cuellar (TX-28, D)

Representative John A. Culberson (TX-7, R)

Representative Artur G. Davis (AL-7, D)

Representative David Davis (TN-1, R)

Representative Geoffrey C. Davis (KY-4, R)

Representative Lincoln E. Davis (TN-4, D)

Representative Thomas M. Davis, III (VA-11, R)

Representative J. Nathan Deal (GA-9, R)

Representative Peter A. DeFazio (OR-4, D)

Representative Charles W. Dent (PA-15, R)

Representative Lincoln Diaz-Balart (FL-21, R)

Representative Mario Diaz-Balart (FL-25, R)

Representative John D. Dingell (MI-15, D)

Representative Joseph S. Donnelly (IN-2, D)

Representative John T. Doolittle (CA-4, R)

Representative David T. Dreier (CA-26, R)

Representative Thelma D. Drake (VA-2, R)

Representative John J. Duncan, Jr. (TN-2, R)

Representative T. Chester Edwards (TX-17, D)

Representative Brad Ellsworth (IN-8, D)

Representative Jo Ann H. Emerson (MO-8, R)

Representative Philip S. English (PA-3, R)

Representative R. Terry Everett (AL-2, R)

Representative Mary C. Fallin (OK-5, R)

Representative Thomas C. Feeney, III (FL-24, R)

Representative Jeff Flake (AZ-6, R)

Representative J. Randy Forbes (VA-4, R)

Representative Jeffrey L. Fortenberry (NE-1, R)

Representative Virginia A. Foxx (NC-5, R)

6a

Representative Trent Franks (AZ-2, R)

Representative Elton W. Gallegly (CA-24, R)

Representative E. Scott Garrett (NJ-5, R)

Representative James W. Gerlach (PA-6, R)

Representative Gabrielle Giffords (AZ-8, D)

Representative Kirsten R. Gillibrand (NY-20, D)

Representative J. Phillip Gingrey (GA-11, R)

Representative Louis B. Gohmert, Jr. (TX-1, R)

Representative Virgil H. Goode, Jr. (VA-5, R)

Representative Robert W. Goodlatte (VA-6, R)

Representative Barton J. Gordon (TN-6, D)

Representative Kay M. Granger (TX-12, R)

Representative Samuel B. Graves, Jr. (MO-6, R)

Representative R. Eugene Green (TX-29, D)

Representative Ralph M. Hall (TX-4, R)

Representative Richard N. Hastings (WA-4, R)

Representative Robin C. Hayes (NC-8, R)

Representative Dean Heller (NV-2, R)

Representative T. Jeb Hensarling (TX-5, R)

Representative Walter W. Herger (CA-2, R)

Representative Stephanie M. Herseth Sandlin (SD-AL, D)

Representative Brian M. Higgins (NY-27, D)

Representative Baron P. Hill (IN-9, D)

Representative David L. Hobson (OH-7, R)

Representative Paul W. Hodes (NH-2, D)

Representative Peter Hoekstra (MI-2, R)

Representative T. Timothy Holden (PA-17, D)

Representative Kenny C. Hulshof (MO-9, R)

Representative Duncan L. Hunter (CA-52, R)

Representative Robert D. Inglis (SC-4, R)

Representative Darrell E. Issa (CA-49, R)

Representative R. Samuel Johnson (TX-3, R)

7a

Representative Timothy V. Johnson (IL-15, R)

Representative Walter B. Jones, Jr. (NC-3, R)

Representative James D. Jordan (OH-4, R)

Representative Steven L. Kagen (WI-8, D)

Representative Paul E. Kanjorski (PA-11, D)

Representative Richard A. Keller (FL-8, R)

Representative Ronald J. Kind (WI-3, D)

Representative Steven A. King (IA-5, R)

Representative John H. Kingston (GA-1, R)

Representative John P. Kline, Jr. (MN-2, R)

Representative Joseph C. Knollenberg (MI-9, R)

Representative J. Randy Kuhl, Jr. (NY-29, R)

Representative Douglas L. Lamborn (CO-5, R)

Representative Nicholas V. Lampson (TX-22, D)

Representative Thomas P. Latham (IA-4, R)

Representative Steven C. LaTourette (OH-14, R)

Representative Robert E. Latta (OH-5, R)

Representative C. Jeremy Lewis (CA-41, R)

Representative Ron E. Lewis (KY-2, R)

Representative John E. Linder (GA-7, R)

Representative Frank D. Lucas (OK-3, R)

Representative Daniel E. Lungren (CA-3, R)

Representative Cornelius H. McGillicuddy, IV (FL-14, R)

Representative Timothy E. Mahoney (FL-16, D)

Representative Donald A. Manzullo (IL-16, R)

Representative Kenny E. Marchant (TX-24, R)

Representative James C. Marshall (GA-8, D)

Representative James D. Matheson (UT-2, D)

Representative Kevin O. McCarthy (CA-22, R)

Representative Michael T. McCaul (TX-10, R)

Representative Thaddeus G. McCotter (MI-11, R)

Representative James O. McCrery, III (LA-4, R)

8a

Representative Patrick T. McHenry (NC-10, R)

Representative John M. McHugh (NY-23, R)

Representative D. Carmichael McIntyre, II (NC-7, D)

Representative Howard P. McKeon (CA-25, R)

Representative Cathy McMorris Rodgers (WA-5, R)

Representative Malcolm R. Melancon (LA-3, D)

Representative John L. Mica (FL-7, R)

Representative Michael H. Michaud (ME-2, D)

Representative Candice S. Miller (MI-10, R)

Representative Gary G. Miller (CA-42, R)

Representative Jefferson B. Miller (FL-1, R)

Representative Harry E. Mitchell (AZ-5, D)

Representative Alan B. Mollohan (WV-1, D)

Representative Jerry Moran (KS-1, R)

Representative Timothy F. Murphy (PA-18, R)

Representative John P. Murtha, Jr. (PA-12, D)

Representative Marilyn N. Musgrave (CO-4, R)

Representative Sue W. Myrick (NC-9, R)

Representative Robert R. Neugebauer (TX-19, R)

Representative Devin G. Nunes (CA-21, R)

Representative James L. Oberstar (MN-8, D)

Representative Solomon P. Ortiz (TX-27, D)

Representative Ronald E. Paul (TX-14, R)

Representative Stevan E. Pearce (NM-2, R)

Representative Michael R. Pence (IN-6, R)

Representative Collin C. Peterson (MN-7, D)

Representative John E. Peterson (PA-5, R)

Representative Thomas E. Petri (WI-6, R)

Representative Charles W. Pickering, Jr. (MS-3, R)

Representative Joseph R. Pitts (PA-16, R)

Representative Todd R. Platts (PA-19, R)

Representative L. Ted Poe (TX-2, R)

9a

Representative Earl R. Pomeroy (ND-AL, D)

Representative Jon C. Porter, Sr. (NV-3, R)

Representative Thomas E. Price (GA-6, R)

Representative Deborah D. Pryce (OH-15, R)

Representative Adam H. Putnam (FL-12, R)

Representative George P. Radanovich (CA-19, R)

Representative Nick J. Rahall, II (WV-3, D)

Representative Dennis R. Rehberg (MT-AL, R)

Representative David G. Reichert (WA-8, R)

Representative Richard G. Renzi (AZ-1, R)

Representative Silvestre Reyes (TX-16, D)

Representative Thomas M. Reynolds (NY-26, R)

Representative Ciro D. Rodriguez (TX-23, D)

Representative Harold D. Rogers (KY-5, R)

Representative Michael D. Rogers (AL-3, R)

Representative Michael J. Rogers (MI-8, R)

Representative Dana T. Rohrabacher (CA-46, R)

Representative Peter J. Roskam (IL-6, R)

Representative Ileana C. Ros-Lehtinen (FL-18, R)

Representative Michael A. Ross (AR-4, D)

Representative Edward R. Royce (CA-40, R)

Representative Paul D. Ryan (WI-1, R)

Representative Timothy J. Ryan (OH-17, D)

Representative John T. Salazar (CO-3, D)

Representative William T. Sali (ID-1, R)

Representative Jean Schmidt (OH-2, R)

Representative F. James Sensenbrenner, Jr. (WI-5, R)

Representative Peter A. Sessions (TX-32, R)

Representative John B. Shadegg (AZ-3, R)

Representative John M. Shimkus (IL-19, R)

Representative J. Heath Shuler (NC-11, D)

Representative William F. Shuster (PA-9, R)

10a

Representative Michael K. Simpson (ID-2, R)

Representative Adrian M. Smith (NE-3, R)

Representative Lamar S. Smith (TX-21, R)

Representative Mark E. Souder (IN-3, R)

Representative Zachary T. Space (OH-18, D)

Representative Clifford B. Stearns (FL-6, R)

Representative Bart T. Stupak (MI-1, D)

Representative John M. Sullivan (OK-1, R)

Representative Thomas G. Tancredo (CO-6, R)

Representative John S. Tanner (TN-8, D)

Representative G. Eugene Taylor (MS-4, D)

Representative Lee R. Terry (NE-2, R)

Representative W. McClellan Thornberry (TX-13, R)

Representative W. Todd Tiahrt (KS-4, R)

Representative Patrick J. Tiberi (OH-12, R)

Representative Michael R. Turner (OH-3, R)

Representative Frederick S. Upton (MI-6, R)

Representative Timothy Walberg (MI-7, R)

Representative Gregory P. Walden (OR-2, R)

Representative James T. Walsh (NY-25, R)

Representative Timothy J. Walz (MN-1, D)

Representative Zachary P. Wamp (TN-3, R)

Representative David J. Weldon, Jr. (FL-15, R)

Representative Gerald C. Weller (IL-11, R)

Representative Lynn A. Westmoreland (GA-3, R)

Representative W. Edward Whitfield (KY-1, R)

Representative Charles A. Wilson (OH-6, D)

Representative Heather A. Wilson (NM-1, R)

Representative Addison G. Wilson (SC-2, R)

Representative Robert J. Wittman (VA-1, R)

Representative Frank R. Wolf (VA-10, R)

Representative Donald E. Young (AK-A)