District of Columbia andAdrian M. FentyBrief for Petitioners in Heller v.District of ColumbiaJanuary 4, 2008

No. 07-290 

IN THE Supreme Court of the United States

DISTRICT OF COLUMBIA AND ADRIAN M. FENTY, MAYOR OF THE DISTRICT OF COLUMBIA,
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 PETITIONERS

THOMAS C. GOLDSTEIN 

CHRISTOPHER M. EGLESON 

Akin Gump
Strauss Hauer & Feld LLP

1333 New Hampshire Avenue, NW 

Washington, DC 20036

WALTER DELLINGER 

MATTHEW M. SHORS 

MARK S. DAVIES 

GEOFFREY
M. WYATT 

O’Melveny & Myers LLP 

LINDA SINGER

Attorney General

ALAN B. MORRISON

Special Counsel to the Attorney General

TODD S. KIM

Solicitor General, Counsel of Record

DONNA M. MURASKY

Deputy Solicitor General

LUTZ ALEXANDER PRAGER

Office of the Attorney General for the District of Columbia 

Attorneys for Petitioners

QUESTION PRESENTED

Whether the following provisions—D.C. Code §§
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?

PARTIES TO THE PROCEEDING

Petitioners District of Columbia and Mayor Adrian M.
Fenty were defendants-appellees below. Mayor Fenty was substituted
automatically for the previous Mayor, Anthony A. Williams, under Federal
Rule of Appellate Procedure 43(c)(2).

Respondent Dick Anthony Heller was the only
plaintiff-appellant below held by the court of appeals to have standing.
The other plaintiffs-appellants were Shelly Parker, Tom G. Palmer,
Gillian St. Lawrence, Tracey Ambeau, and George Lyon.

TABLE OF CONTENTS

QUESTION PRESENTED

PARTIES TO THE PROCEEDINGS

DECISIONS BELOW

JURISDICTION

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

ARGUMENT 

I. THE SECOND AMENDMENT PROTECTS ONLY MILITIA
RELATED FIREARM RIGHTS

A. The Language Of The Entire Amendment
Is Naturally Read To Protect The Keeping And Bearing Of Arms Only In
Service Of A Well-Regulated Militia

B. The Historical Context And
Drafting History Of The Second Amendment Confirm The Framers’ Military Purpose

II. THE SECOND AMENDMENT DOES
NOT APPLY TO LAWS LIMITED TO THE DISTRICT OF COLUMBIA

III. THE DISTRICT’S REASONABLE GUN-CONTROL LAWS DO NOT
INFRINGE THE RIGHT TO KEEP AND BEAR ARMS

A. The Constitution Permits Reasonable Restrictions On The
Ownership And Use Of Guns

B. The Court Of Appeals Applied
The Wrong Standard, Created An Unworkable Test, And
Misconstrued Relevant Precedent

C. The District’s Gun Regulations
Satisfy The Reasonableness Standard

1. The Handgun Ban Limits The Unique Harms Posed By Handguns In An Urban
Environment

2. The Trigger-Lock Requirement Is A Reasonable
Safety Regulation

3. The Licensing Requirement Does No More Than Properly Limit Those Who
May Carry Handguns

CONCLUSION

TABLE OF AUTHORITIES

CASES

Arnold v. City of Cleveland,

616 N.E.2d 163 (Ohio 1993) 

Aymette v. State,

21 Tenn. (1 Hum.) 154 (1840) 

Ayotte v. Planned Parenthood,

546 U.S. 320 (2006) 

Benjamin v. Bailey,

662 A.2d 1226 (Conn. 1995) 

Brandenburg v. Ohio,

395 U.S. 444 (1969)

Chaplinsky v. New Hampshire,

315 U.S. 568 (1942) 

Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council,

485 U.S. 568 (1988) 

Employment Div. v. Smith,

494 U.S. 872 (1990) 

Gibbons v. District of Columbia,

116 U.S. 404 (1886) 

Gibbons v. Ogden,

22 U.S. (9 Wheat.) 1 (1821) 

Gonzales v. Carhart,

127 S. Ct. 1610 (2007) 

Griffin v. United States,

447 A.2d 776 (D.C. 1982)

Kalodimos v. Morton Grove,

470 N.E.2d 266 (Ill. 1984) 

Kennedy v. Mendoza-Martinez,

372 U.S. 144 (1963) 

Lewis v. United States,

445 U.S. 55 (1980) 

Loughboro v. Blake,

18 U.S. (5 Wheat.) 317 (1820) 

Lucas v. S. C. Coastal Council,

505 U.S. 1003 (1992) 

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) 

Maryland v. Buie,

494 U.S. 325 (1990) 

McIntosh v. Washington,

395 A.2d 744 (D.C. 1978) 

NAACP v. Button,

371 U.S. 415 (1963) 

New York v. Ferber,

458 U.S. 747 (1982) 

New York v. Quarles,

467 U.S. 649 (1984) 

Palko v. Connecticut,

302 U.S. 319 (1937) 

Palmore v. United States,

411 U.S. 389 (1973) 

People v. Blue,

544 P.2d 385 (Colo. 1975) 

Perpich v. Dep’t of Defense,

496 U.S. 334 (1990) 

Pollock v. Farmer’s Loan & Trust Co.,

157 U.S. 429 (1895) 

Presser v. Illinois,

116 U.S. 252 (1886) 

Quilici v. Village of Morton Grove,

695 F.2d 261 (7th Cir. 1982) 

Renton v. Playtime Theatres, Inc.,

475 U.S. 41 (1986) 

Robertson v. Baldwin,

165 U.S. 275 (1897) 

Robertson v. City and County of Denver, 

874 P.2d 325 (Colo. 1994) 

Roth v. United States,

354 U.S. 476 (1957) 

Sandidge v. United States,

520 A.2d 1057 (D.C. 1987) 

State v. Cole,

665 N.W.2d 328 (Wisc. 2003) 

State v. Hamlin,

497 So.2d 1369 (La. 1986) 

State v. LaChapelle,

451 N.W.2d 689 (Neb. 1990) 

State v. McAdams,

714 P.2d 1236 (Wyo. 1986) 

Turner Broad. Sys. v. FCC,

512 U.S. 622 (1994) 

Turner Broad. Sys. v. FCC,

520 U.S. 180 (1997)

United States v. Bailey,

444 U.S. 394 (1980)

United States v. Carolene Prods. Co.,

304 U.S. 144 (1938) 

United States v. Cruikshank,

92 U.S. 542 (1876) 

United States v. Lopez,

514 U.S. 549 (1995) 

United States v. Miller,

307 U.S. 174 (1939) 

United States v. O’Brien,

391 U.S. 367 (1968) 

United States v. Parker,

362 F.3d 1279 (10th Cir. 2004) 

United States v. Salerno,

481 U.S. 739 (1987) 

Ward v. Rock Against Racism,

491 U.S. 781 (1989) 

CONSTITUTIONAL PROVISIONS

U.S. Const. art. I, § 8, cl.12 

U.S. Const. art. I, § 8, cl.13 

U.S. Const. art. I, § 8, cl.14 

U.S. Const. art. I, § 8, cl.15 

U.S. Const. art. I, § 8, cl.16 

U.S. Const. art. I, § 8, cl.17 

U.S. Const. art. I, § 9, cl. 4 

U.S. Const. art. II, § 2 

U.S. Const. amend. V 

Mass. Const., Pt. I, Art. XVII 

STATUTES

10 U.S.C. § 311 

28 U.S.C. § 1254(1) 

Act of Feb. 9, 1750, ch. CCCLXXXVIII, 1750-1751 Pa. Laws 108 

Act of Mar. 1, 1783, ch. XIII, 1783 Mass. Acts 218 

Act of May 8, 1792, ch. XXXIII, 1 Stat. 271 

Act of Feb. 2, 1812, ch. CXCV, 1812 Del. Laws 522 

Act of Feb. 10, 1831, ch. XXVI, § 58, 1831 Rev’d Laws of Ind. 180, 192 

Act of Jan. 27, 1838, ch. 137, 1837-1838 Tenn. Pub. Acts 200 

Act of Feb. 1, 1839, no. 77, 1839 Ala. Laws 67 

Act of July 13, 1892, ch. 159, 27 Stat. 116 

Act of July 8, 1932, ch. 465, 47 Stat. 650 

Act of Nov. 4, 1943, ch. 296, 57 Stat. 586 

Act of the Corporation of the City of Washington of Mar. 30, 1813

Act of the Corporation of the City of Washington of Nov. 8, 1857 

Act of the Corporation of the City of Washington of Nov. 18, 1858 

Chicago Mun. Code §§ 8-20-040, 8-20 050(c) 

D.C. Code § 1-203.02 

D.C. Code § 7-2501 (12)

D.C. Code § 7-2502.01 

D.C. Code § 7-2502.02 

D.C. Code § 7-2507.02 

D.C. Code § 22-4504(a) 

D.C. Code § 49-401 

Connecticut Militia Law (1786) 

Delaware Militia Law (June 4, 1785) 

Georgia Militia Law (Aug. 15, 1786) 

Maryland Militia Law (Nov. 3, 1783)   

Massachusetts Militia Law (Mar. 10, 1785)  

National Firearms Act, ch. 757,
48 Stat. 1236 (June 26, 1934) 

New Hampshire Militia Law (June 24, 1786) 

New Jersey Militia Law (Jan. 8, 1781) 

New York Militia Law (Apr. 4, 1786) 

North Carolina Militia Law (Nov. 18, 1786) 

Pennsylvania Militia Law (Mar.
20, 1780) 

South Carolina Militia Law (1784) 

Town of Georgetown Ordinance of Oct. 24, 1801

Vermont Militia Law (Mar. 8, 1787) 

Virginia Militia Law (Oct. 17, 1785) 

LEGISLATIVE HISTORY

D.C. Council Morning Session Transcript, May 3, 1976 

D.C. Council Afternoon Session Transcript, May 3, 1976 

D.C. Council Morning Session Transcript, May 18, 1976 

D.C. Council Afternoon Session Transcript, May 18, 1976 

D.C. Council Evening Session Transcript, June 15, 1976 

OTHER AUTHORITIES

Articles of Confederation art. VI 

Jack M. Bergstein et al., Guns in Young Hands: A Survey of Urban Teenagers’ Attitudes and
Behaviors Related to Handgun Violence, 41 J. Trauma 794 (1996)

The Bill of Rights: A Documentary History 912 (Bernard Schwartz ed., 1971) 

1 William Blackstone, Commentaries on the Laws of England 60 (1765)

Kenneth R. Bowling, “A Tub to the Whale,” 8 J. Early Republic 223 (1988)

Kenneth R. Bowling, The Creation of Washington D.C.: The Idea and Location of the American Capital
(1991) 

The Complete Bill of Rights: The Drafts, Debates,
Sources, and Origins 183 (Neil H. Cogan ed., 1997) 

Saul Cornell, A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in
America 41-50 (Oxford Univ. Press 2006)

Saul Cornell & Nathan DeDino, A Well Regulated Right: The Early American Origins of Gun Control,
73 Fordham L. Rev. 487 (2004) 

Lawrence D. Cress, An Armed Community, 71 J. Am. Hist. 22 (1984) 

Lawrence D. Cress, Whither Columbia?, 32 Wm. & Mary Q. 581 (1975) 

Wendy Cukier & Victor W. Sidel, The Global Gun Epidemic: From Saturday Night Specials to
AK-47s 144 (2006) 

Peter Cummings et al., The Association Between the Purchase of a Handgun and Homicide or
Suicide, 87 Am. J. Pub. Health, 974 (1997)

D.C. Police Regs. art. 50-55 (1968)

The Declaration of Independence 

Mark Duggan, More Guns, More Crime, 109 J. Pol. Econ. 1086 (2001) 

John Elliot, Debates in the Several State Conventions on the Adoption of the Constitution, as
Recommended by the General Convention at Philadelphia, in 1787 (2d ed. 1836) 

Federal Bureau
of Investigation, Uniform Crime Report—Law Enforcement Officers Killed
and Assaulted at Table 28 (2005) 

The Federalist No. 21 (Alexander Hamilton) 

The Federalist No. 29 (Alexander Hamilton) 

The Federalist No. 43 (James Madison)

The Federalist No. 45 (James Madison)

The Federalist No. 46 (James Madison)

Paul Finkelman, “A Well Regulated Militia”: The Second Amendment in Historical
Perspective, 76 Chi.-Kent L. Rev. 195 (2000)

Gales & Seaton’s History of Debates in Congress (1787) 

Karen D. Gotsch et al., CDC Surveillance Summary No. SS-2, Surveillance for Fatal and
Nonfatal Firearm-Related Injuries—United States 1993-1998 (Apr. 13, 2001) 

Robert Hardaway, The Inconvenient Militia Clause of the Second Amendment, 16 St. John’s J. Legal
Comment. 41 (2002)

Caroline W. Harlow, U.S. Dep’t of Justice, Bureau of Justice Statistics,
Survey of Inmates in State and Federal Correctional
Facilities: Firearm Use by Offenders (Special Rep. Nov. 2001) 

David Hemenway, Private Guns, Public Health 32 (2004) 

R. Don Higginbotham, The Federalized Militia: A Neglected Aspect of Second Amendment
Scholarship, 55 Wm. & Mary Q. 39 (1998)

Journal of the First Session of the Senate (Gales and Seaton 1789) 

Arthur L. Kellermann et al., Gun Ownership as a Risk Factor for Homicide in the Home,
329
New Eng. J. Med. 1084 (1993)

David T. Konig, The Second Amendment: A Missing Transatlantic Context for the
Historical Meaning of “The Right of the People to Bear Arms”, 22 Law
& Hist. Rev. 119 (2004)

Nathan Kozuskanich, Defending Themselves: The Original Understanding of the Right to
Bear Arms, 39 Rutgers L.J. 1041 (forthcoming 2008)

Legal Community Against Violence, Regulating Guns in America: An Evaluation and Comparative
Analysis of Federal, State and Selected Local Gun Laws (2006) 

Cynthia Leonardatos et al., Smart Guns/Foolish Legislators: Finding the Right Public Safety
Laws, and Avoiding the Wrong Ones, 34 Conn. L. Rev. 157 (2001)

Colin Loftin et al., Effects of Restrictive Licensing in Handguns on Homicide and Suicide in the
District of Columbia, 325 New Eng. J. Med. 1615 (1991) 

National Center for Health Statistics, Trend C Table 292: Deaths for 282
Selected Causes (2006)

National Center for Injury Prevention and Control, WISQARS Injury Mortality Reports, 1999-2004

1 Oxford English Dictionary (J.A. Simpson & E.S.C. Weiner eds., 2d ed. 1989) 

11 The Papers of James Madison (C.F. Hobson et al. eds., 1977)

Craig Perkins, U.S. Dep’t of Justice, Bureau of Justice Statistics, National Crime
Victimization Survey, 1993-2001: Weapon Use and Violent Crime (Special
Rep. Sept. 2003) 

Jack N. Rakove, The Second Amendment: The Highest Stage of Originalism, 76 Chi.-Kent
L. Rev. 103 (2000) 

Records of the Federal Convention of 1787 (Max Farrand ed., Yale Univ.
Press 1937) (1911) 

Lois G. Schwoerer, To Hold and Bear Arms: The English Perspective
76 Chi.-Kent L. Rev. 27 (2000) 

Clint Smith, Home Defense, Guns Mag., July 2005

Dave Spaulding, Shotguns for Home Defense: Here’s How To Choose and Use the Most
Effective Tool for Stopping an Attack, Guns & Ammo, Sept. 2006 

U.S. Gen. Accounting Office, Accidental Shootings: Many Deaths and Injuries Caused by Firearms
Could Be Prevented (1991) 

H. Richard Uviller & William G. Merkel, The Second Amendment in Context: The Case of the Vanishing Predicate,
76
Chi.-Kent L. Rev. 403 (2000) 

Violence Policy Center, When Men Murder Women: An Analysis of 2004 Homicide Data
(Sept. 2006) 

Eugene Volokh, State Constitutional Rights to Keep and Bear Arms, 11
Tex. Rev. L. & Pol. 191 (2006) 

Roy G. Weatherup, Standing Armies and Armed Citizens: An Historical Analysis of the Second
Amendment, 2 Hastings Const. L.Q. 961 (1975)

Frederick B. Wiener, Militia Clauses of the Constitution, 54 Harv. L. Rev.
181 (1940) 

Reed Williams & Shawna Morrison, Police: No Motive Found, Roanoke
Times, April 26, 2007, at A1

Garry Wills, A Necessary Evil (Simon & Schuster 1999) 

Garry Wills, To Keep and Bear Arms, N.Y. Rev. of Books, Sept. 21, 1995,
at 63 

Adam Winkler, Scrutinizing the Second Amendment, 105
Mich. L. Rev. 683 (2007) 

David Yassky, The Second Amendment, 99 Mich. L. Rev. 588 (2000) 

Marianne W. Zawitz, U.S. Dep’t of Justice, Bureau of
Justice Statistics, Firearms, Crime, and Justice: Guns Used in Crime (July 1995) 

DECISIONS BELOW

The decisions below are reported at 478 F.3d 370 and 311
F. Supp. 2d 103 and reprinted in the Appendix to the Petition for
Certiorari (PA) at PA1a and PA71a.

JURISDICTION

The court of appeals entered judgment on March 9, 2007,
and denied en banc review on May 8, 2007. PA89a. A petition for
certiorari was filed on September 4, 2007, and granted on November 20,
2007. This Court has jurisdiction under 28 U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL AND STATUTORY
PROVISIONS

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.”

The Militia Clauses of the Constitution, art. I, § 8,
cls. 15-16, empower Congress “[t]o provide for calling forth the
Militia to execute the Laws of the Union, suppress Insurrections and
repel Invasions” and “[t]o 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.”

Relevant portions of the D.C. Code provide:

§ 7-2502.02. Registration of certain firearms
prohibited.

(a) A registration certificate shall not be issued for a:

(1) Sawed-off shotgun;

(2) Machine gun;

(3) Short-barreled rifle; or

(4) Pistol not validly registered to the current
registrant in the District prior to September 24, 1976, except that the
provisions of this section shall not apply to any organization that
employs at least 1 commissioned special police officer or other employee
licensed to carry a firearm and that arms the employee with a firearm
during the employee’s duty hours or to a police officer who has
retired from the Metropolitan Police Department.

(b) Nothing in this section shall prevent a police
officer who has retired from the Metropolitan Police Department from
registering a pistol.

* * *

§ 7-2507.02. Firearms required to be unloaded and
disassembled or locked.

Except for law enforcement personnel described in § 7-2502.01(b)(1), each registrant shall keep
any firearm in his possession unloaded and disassembled or bound by a trigger lock or similar
device unless such firearm is kept at his place of business, or while being used for lawful recreational purposes within the District of Columbia.

* * *

§ 22-4504. Carrying concealed weapons; possession of
weapons during commission of crime of violence; penalty.

(a) No person shall carry within the District of Columbia
either openly or concealed on or about their person, a pistol, without a
license issued pursuant to District of Columbia law, or any deadly or dangerous weapon capable of being so concealed.
. . .

STATEMENT OF THE CASE

This case involves a Second Amendment challenge to the
District of Columbia’s longstanding gun-control laws. The divided
court below was the first federal court of appeals ever to invalidate a
law under that Amendment. Its decision is wrong for three separate
reasons, each of which independently warrants reversal and entry of
judgment for the District.

1. The Nation’s capital has regulated guns for two
centuries. In 1801, the then-Town of Georgetown forebade firing guns in
its “inhabited parts.” Town of Georgetown Ordinance of Oct. 24,
1801. In 1809, the City of Washington similarly made it unlawful to fire
guns “within four hundred yards of any house . . . or on the
Sabbath.” Act of the Corporation of the City of Washington (“City
Act”) of Dec. 9, 1809. The city later exempted militiamen “on days
of mustering, training or rejoicing, when ordered so to shoot or fire by
their commanding officer.” City Act of Mar. 30, 1813.

In 1857, the city made it unlawful to carry “deadly or
dangerous weapons, such as . . . pistol[s].” City Act of Nov. 8, 1857;
see City Act of Nov. 18, 1858. In 1892, Congress similarly barred
persons throughout the District from having such weapons “concealed
about their person” outside of the person’s “place of business,
dwelling house, or premises.” Act of July 13, 1892, ch. 159, 27 Stat.
116. In 1932 and 1943, Congress prohibited possession of machine guns
and sawed-off shotguns in the District and required licenses for
carrying pistols and other concealable weapons outside one’s home or
place of business. Act of July 8, 1932, ch. 465, 47 Stat. 650; Act of
Nov. 4, 1943, ch. 296, 57 Stat. 586. Police regulations subsequently required registration of
all firearms, including pistols. D.C. Police Regs. art. 50-55 (1968).

In 1976, the Council of the District of Columbia
concluded that existing laws did not adequately curb gun-related
violence. As a consequence, it enacted a comprehensive new law
regulating firearms. The principal provision at issue here prohibits
most residents from registering (and thus possessing) any pistol not
registered before the law became effective. D.C. Code §§ 7-2502.01,
7-2502.02. “Pistol” is defined as a gun “originally designed to be
fired by use of a single hand.” Id. § 7-2501.01(12). As Mayor Walter
Washington emphasized in signing the law, it “does not bar ownership
or possession of shotguns and rifles.” PA116a. Resolutions to
disapprove the act were introduced in the House of Representatives but
were unsuccessful. See McIntosh v. Washington, 395 A.2d 744, 747 (D.C.
1978).

The Council targeted handguns because they are
disproportionately linked to violent and deadly crime. In its report
accompanying the bill, the Council cited national statistics showing
that “handguns are used in roughly 54% of all murders, 60% of
robberies, 26% of assaults and 87% of all murders of law enforcement
officials.” PA102a. Handguns were also particularly deadly in other
contexts: “A crime committed with a pistol is 7 times more likely to
be lethal than a crime committed with any other weapon.” Id.

These dangers were even more pronounced in the District,
where handguns were used in 88% of armed robberies and 91% of armed
assaults. PA102a, 104a. In 1974, handguns were used to commit 155 of 285
murders in the District. PA102a. In the same year, every rapist in the District who used a firearm to
facilitate his crime used a handgun. Evening Council Sess. Tr. 11:4-5,
June 15, 1976.

The Council also recognized that the dangers of handguns
extend beyond acts of determined criminals. It found that guns “are
more frequently involved in deaths and violence among relatives and
friends than in premeditated criminal activities,” and that many
“murders are committed by previously law-abiding citizens, in
situations where spontaneous violence is generated by anger, passion, or
intoxication.” PA102a. The Council also focused on the link between
handguns and accidental deaths and injuries, particularly to young
children who can wield only smaller weapons: of the “[c]lose to 3,000
accidental deaths . . . caused by firearms” annually, children were
particularly vulnerable—“1/4 of the victims are under 14 years of
age.” PA101a-02a.

In enacting the handgun ban, the Council found that less
restrictive approaches would not be adequate. Safe-storage provisions
standing alone would be insufficient to accomplish the District’s goal
of reducing gun injuries and deaths. Guns stolen from even the most
law-abiding citizens enable criminal gun violence. Afternoon Council
Sess. Tr. 35:10-20, 42:4-10, May 3, 1976. Ready availability of guns in
the home also made them “easy for juveniles to obtain.” PA103a.

The legislature concluded that “the ultimate resolution
of the problems of gun created crimes and gun created accidents . . . is
the elimination of the availability of handguns.” Afternoon Council
Sess. Tr. 3:22-24, May 18, 1976. The Council thus chose to “freez[e] the pistol . . . population within the District of Columbia.” PA104a. As the Council summed up, “the
bill reflects a legislative decision” that handguns “have no
legitimate use in the purely urban environment of the District of
Columbia.” PA112a.

As part of its gun-control program, the Council also
enacted a trigger-lock provision to promote gun safety at home. D.C.
Code § 7-2507.02. A firearm must be kept “unloaded and disassembled
or bound by a trigger lock or similar device unless such firearm is kept
at [a] place of business, or while being used for lawful recreational
purposes.” The provision’s author noted not only that 3,000 deaths
resulted annually from firearm accidents, but also that loaded weapons
are often misused against family members in moments of passion. Evening
Council Sess. Tr. 21:1-15, Jun. 15, 1976. He explained that trigger
locks may be unlocked in less than a minute. Id. at 42:11-18, 49:816.

In 1994, the Council extended the prior requirement that
those who “carry” concealable weapons in public be licensed. A
license is now required regardless of where such a weapon is carried.
D.C. Code § 22-4504(a). The licensing requirement, which enables the
District to prevent felons and other dangerous persons from keeping
concealable weapons, is separate from the registration requirement
applicable to all firearms. Absent the handgun ban, District residents
could register handguns and then apply for licenses to “carry” them.

2. Respondent Heller owns handguns and long guns (i.e.,
rifles and shotguns) but stores them outside the District. Joint
Appendix 77a. He and five other individuals challenged the District’s
longstanding laws as infringements of their asserted right to possess guns for self-defense. Because they did not assert
membership in any organized militia, the district court granted the
District’s motion to dismiss the complaint. “[I]n concert with the
vast majority of circuit courts,” it concluded that this Court’s
decision in United States v. Miller, 307 U.S. 174 (1939), “reject[s] an individual right to bear arms separate and apart from Militia use.”
PA75a. The district court also noted that this Court “has twice been
presented with the opportunity to re-examine Miller and has twice
refused to upset its holding.” PA75a.

3. A divided panel of the court of appeals reversed.
After finding that only respondent had standing, the majority held that
“the Second Amendment protects a right of individuals to possess arms
for private use.” PA14a-17a, 44a. The majority also rejected the
District’s argument that the Second Amendment is not implicated by
local legislation governing only the Nation’s capital. PA44a-48a.

The court then held that, because a handgun is an
“Arm” under the Amendment, banning handguns is per se invalid.
PA53a. The majority dismissed as “frivolous” the District’s
contention that its regulatory scheme is reasonable because other
weapons, such as shotguns and rifles, fully vindicate residents’
interests in self-defense. PA53a.

The majority also invalidated the licensing law. It ruled
that individuals have not only a constitutional right to possess a
handgun, but also an ancillary right to move it about their homes for
self-defense. PA54a. Although the District construes D.C. Code §
224504(a) as a licensing provision, not a flat prohibition on the use
(“carrying”) of handguns, the majority held it facially
unconstitutional on its contrary reading.

The majority further invalidated the trigger-lock
requirement. The District construes D.C. Code § 72507.02, which has
never been interpreted by local courts and appears never to have been
enforced, to permit a lawfully owned gun to be used for self-defense. The
majority nevertheless read it to forbid that use and on that reading
held the provision facially unconstitutional. PA55a.

Judge Henderson dissented. In her view, Miller— “the
only twentieth-century United States Supreme Court decision that
analyzes the scope of the Second Amendment”—compels the conclusion
that “the right of the people to keep and bear arms relates to those
Militia whose continued vitality is required to safeguard the individual
States.” PA57a-60a (footnote omitted). She also emphasized that the
Amendment was intended to guard against a perceived threat to the states
from the federal government. PA65a. She noted that if the District’s
militia is treated as a state militia, then the Amendment would not
apply because it “does not apply to gun laws enacted by the States.”
PA66a n.13.

SUMMARY OF ARGUMENT

1. The text and history of the Second Amendment
conclusively refute the notion that it entitles individuals to have guns
for their own private purposes. Instead, it protects the possession and
use of guns only in service of an organized militia.

The first clause—“[a] well regulated Militia, being
necessary to the security of a free State”—speaks only of militias,
with not a hint about private uses of firearms. A well-regulated militia
is the antithesis of an unconnected group of individuals, each choosing
unilaterally whether to own a firearm, what kind to own, and
for what purposes.

The second clause—“the right of the people to keep
and bear Arms, shall not be infringed”—equally addresses the
possession and use of weapons in connection with militia service. In
1791, “Arms” and “bear Arms” were military terms describing the
use of weapons in the common defense, and the word “keep” was used
in connection with militiamen’s possession of the arms necessary for
militia service.

Taken together, the two clauses permit only a
militia-related reading. To conclude that the Framers intended to
protect private uses of weapons, the majority below read the entire
first clause to be extraneous and the second to be in tension with the
natural, military meaning of “bear Arms.” If that had been the
Framers’ intent, they would have omitted the first clause and used
non-military language in the second.

History confirms the District’s reading. The primary
concerns that animated those who supported the Second Amendment were
that a federal standing army would prove tyrannical and that the power
given to the federal government in the Constitution’s Militia Clauses
could enable it not only to federalize, but also to disarm state
militias. There is no suggestion that the need to protect private uses
of weapons against federal intrusion ever animated the adoption of the
Second Amendment. The drafting history and recorded debate in Congress
confirm that the Framers understood its military meaning and ignored
proposals to confer an express right to weapon possession unrelated to
militia service.

2. The court of appeals erred for the independent reason
that the Second Amendment does not apply to District-specific legislation. Such legislation cannot
implicate the Amendment’s purpose of protecting states and localities
from the federal government.

That conclusion follows from the history underlying the
Constitution’s Seat of Government Clause. In 1783, disgruntled
soldiers surrounded the State House in Philadelphia, causing the
Continental Congress to flee because the local authorities would not
protect it. The Framers created a federal enclave to ensure federal
protection of federal interests. They could not have intended the Second
Amendment to prevent Congress from establishing such gun-control
measures as it deemed necessary to protect itself, the President, and
this Court when similar state legislative authority was not constrained.

3. Finally, the judgment must be reversed for the
separate reason that the laws at issue here are reasonable and therefore
permissible. This Court has long recognized that constitutional rights
are subject to limitations. Indeed, the majority below purported to
recognize that gun-control laws are constitutional if they are
“reasonable regulations.”

The majority nevertheless found that the Council’s
findings regarding handguns’ unique dangers in an urban environment
were irrelevant because, in its view, a ban on handguns is per se
unreasonable under the Second Amendment. Equally irrelevant was the fact
that the District allows residents to keep rifles and shotguns for
private purposes. The majority instead concluded that the Second
Amendment precludes the District from limiting a resident’s choice of
firearms so long as the firearm chosen is in common use, has a military
application, and is a lineal descendant of a type of arm used in 1791.
That test is unworkable. It also has no basis in the Second Amendment
and would implausibly give the right to keep and bear arms a uniquely
privileged position in the Bill of Rights.

The District’s gun-control measures should be upheld
under a proper reasonableness analysis. In enacting the laws at issue
here, the Council responded to the serious dangers created by ownership
of guns, considered various alternatives, and sensibly concluded that
the handgun ban, plus trigger-lock and licensing requirements, would
reduce crime, suicide, domestic violence, and accidental shootings.
Preventing those harms is not just a legitimate goal; it is a
governmental duty of the highest order. Moreover, those regulations do
not disarm the District’s citizens, who may still possess operational
rifles and shotguns. The laws at issue, adopted after extensive debate
and consideration, represent the District’s reasoned judgment about
how best to meet its duty to protect the public. Because that predictive
judgment about how best to reduce gun violence was reasonable and is
entitled to substantial deference, it should be upheld.

ARGUMENT

I. THE SECOND AMENDMENT PROTECTS ONLY MILITIA-RELATED
FIREARM RIGHTS.

Almost seventy years ago, this Court held that “[w]ith
obvious purpose to assure the continuation and render possible the
effectiveness of [the state-regulated militias] the declaration and
guarantee of the Second Amendment were made. It must be interpreted and
applied with that end in view.” Miller, 307 U.S. at 178. The text and
history of the Second Amendment confirm that the right it protects is
the right to keep and bear arms as part of a well-regulated
militia, not to possess guns for private purposes. The Second Amendment
does not support respondent’s claim of entitlement to firearms for
self-defense.

A. The Language Of The Entire Amendment Is Naturally Read
To Protect The Keeping And Bearing Of Arms Only In Service Of A
Well-Regulated Militia.

1. Both clauses of the Second Amendment, read separately
or together, establish the Amendment’s exclusively military purpose.

“A well regulated Militia, being necessary to the
security of a free State, . . . ”

Unique in the Bill of Rights, the Second Amendment begins
by stating the reason for its existence: to support a “well regulated
Militia.” Militias are the state- and congressionally-regulated
military forces described in the Militia Clauses (art. I, § 8,
cls.15-16). Their function is to safeguard the states and to be
available “to execute the Laws of the Union, suppress Insurrections
and repel Invasions.” Id.; Miller, 307 U.S. at 178; see also U.S.
Const. art. II, § 2 (President commands “the Militia of the several
States, when called into the actual Service of the United States”),
amend. V (cases arising in “the Militia, when in actual service in
time of War or public danger” excepted from grand jury requirement).

The words “well regulated” underscore that the
“Militia” contemplated by the Framers were organized and trained
fighting forces. As Miller explained, a militia is a “body of citizens
enrolled for military discipline.” 307 U.S. at 179. The language chosen in the
Second Amendment was not new. The Articles of Confederation had required
“every State” to “keep up a well-regulated and disciplined
militia, sufficiently armed and accoutered.” Articles of Confederation
art. VI. Most states passed detailed laws
setting forth requirements for membership and discipline, generally
requiring men of certain ages to appear periodically for muster and
training under the supervision of state-appointed officers.¹ The laws
called for highly organized bodies, specifying company and regiment
size, number and rank of commissioned and noncommissioned officers, and
the like. E.g., Georgia Militia Law 4-5. Those men were expected to
obtain specified weaponry, normally muskets and rifles, and present them
when directed. See Miller, 307 U.S. at 179-82. Failure to appear for training, properly armed,
was punishable. E.g., Georgia Militia Law 1; New Hampshire Militia Law
8.

The Second Militia Act, enacted by Congress a year after
the Second Amendment’s ratification, shows that the Framers similarly
understood a “well regulated Militia” to be an organized and trained
military force, led by state-chosen officers. It called for musters and
training, and it specified particular weaponry all militia members were
required to possess. See Act of May 8, 1792, ch. XXXIII, 1 Stat. 271. It
placed special emphasis on military discipline. See id. §§ 6-7,
10-11.²

The remaining words of the first clause further support
the point that the Second Amendment contemplates service in a military
organization. The Framers specified that a well-regulated militia exists
for the common defense—“being necessary” (not optional) “to the
security of a free State.” This language recognizes that the militia
forces exist not only to help the federal government “execute the Laws
of the union, suppress Insurrections and repel invasions” (art. I, § 8, cl.15), but also to serve as the primary
protectors of the states. Nothing about this language or the opening
clause as a whole so much as hints that the Amendment is about
protecting weapons for private purposes.³

“. . . the right of the people to keep and bear Arms,
shall not be infringed.”

The second clause standing alone also has a distinctly
military cast. The crucial words are those that define the “right of
the people” that the Amendment protects: “to keep and bear Arms.”

“Arms” are military weapons. The term historically
meant “[i]nstruments of offence used in war; weapons,” and the
Oxford English Dictionary notes a 1794 dictionary that understood
“arms” as “those instruments of offence generally made use of in
war.” 1 Oxford English Dictionary 634 (J.A. Simpson & E.S.C.
Weiner eds., 2d ed. 1989).

In Miller, this Court held that a weapon is not a
protected “Arm” absent proof that “at this time [it] has some
reasonable relationship to the preservation or efficiency of a well
regulated militia.” 307 U.S. at 178. The Court rejected a Second
Amendment challenge to an indictment for possession of a short-barreled
shotgun because the defendant had not provided that proof. At a minimum,
the weapon must be “part of the ordinary military equipment” or have
the potential to “contribute to the common defense.” Id. The Court
discussed eighteenth-century militias at length (id. at 179-82) but made
no mention of weapons for personal uses.

Moreover, “bear Arms” refers idiomatically to using
weapons in a military context. This was the only sense in which the
young Congress and its predecessors ever used the phrase. Paragraph 28
of the Declaration of Independence notably castigated George III for
“constrain[ing] our fellow citizens . . . to bear arms against their
country.” And in recorded congressional debates from 1774 through
1821, every one of the thirty uses of the phrase matched the idiomatic
meaning of the day. David Yassky, The Second Amendment: Structure, History and Constitutional Change,
99 Mich. L. Rev. 588, 618-21 (2000). For decades after
the adoption of the Second Amendment, the military sense of “bear
arms” was “overwhelmingly dominant.” Id.

The word “keep” is consistent with that military
sense. As noted above, the expectation of the Framers was that members
of militias would bring the weapons required for service. When the Second Amendment was
ratified, numerous state militia laws used the word “keep” to refer
to the requirement that militiamen have arms so they could bring them to
musters. E.g., Delaware Militia Law at 3; New Jersey Militia Law at 169;
Virginia Militia Law at 2. Securing their right to “keep” those arms
would ensure that they could “bear” them. See, e.g., Mass. Const.,
art. XVII (“The people have a right to keep and to bear arms for the
common defense.”).

2. In concluding that the Second Amendment protects a
right to gun ownership for private uses, the majority below misread the
Amendment’s text in multiple ways.

First, the majority read the opening clause out of the
Amendment. But “[i]t cannot be presumed that any clause in the
constitution is intended to be without effect.” Marbury v. Madison, 5 U.S. (1
Cranch) 137, 174 (1803). That is particularly true for this
clause, which is unique in the Bill of Rights. The Framers plainly
expected it to give meaning to the whole Amendment. See 1 William
Blackstone, Commentaries on the Laws of England 60 (1765) (“If words
happen to be still dubious, we may establish their
meaning from the context . . . . Thus the proeme, or preamble, is often
called in to help the construction . . . .”); see also David T. Konig,
The Second Amendment: A Missing Transatlantic Context for the
Historical Meaning of “The Right of the People to Bear Arms”, 22 Law & Hist. Rev. 119, 154-57 (2004)
(discussing eighteenth-century uses of preambles). The majority
nevertheless proposed that the first clause merely states “the
right’s most salient political benefit.” PA35a. Treating the
Amendment’s first clause as merely stating a benefit of the Amendment—as opposed to
the benefit the Amendment was enacted to realize—is both ahistorical
and inconsistent with Miller’s directive that the “declaration
and
guarantee of the Second Amendment” be read in light of its “obvious
purpose.” 307 U.S. at 178 (emphasis added).

Second, despite the contemporaneous evidence of what the
Framers understood a “well regulated Militia” to be, the majority
below implausibly asserted that a well-regulated militia can consist of
people who are merely “subject to organization by the states (as
distinct from actually organized).” PA33a. Everyone is potentially
subject to organization, but an unorganized group is not regulated at
all, let alone well-regulated. Under the majority’s understanding, even
those who refused to appear for muster would still be part of a
well-regulated militia. That is not how the words were understood. See,
e.g., The Federalist No. 29, at 180-81 (Alexander Hamilton) (Clinton
Rossiter ed., 1961) (citizens must “go[] through military exercises
and evolutions” before “acquir[ing] the degree of perfection which
would entitle them to the character of a well-regulated militia”).
Indeed, states that set forth the discipline and organization required
of their militias did so while specifically invoking their need for
“well regulated” militias. E.g., Maryland Militia Law Chap. I
(“Whereas a well regulated militia is the proper and natural defence
of a free government . . . .”).

Third, the majority read the phrase “bear Arms”
unnaturally. “[T]he enlightened patriots who framed our constitution,
and the people who adopted it, must be understood to have employed words
in their natural sense,” Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1,
188 (1824), and “[o]ne does not bear Arms against a
rabbit” or an intruder, Garry Wills, To Keep and Bear Arms, N.Y. Rev.
of Books, Sept. 21, 1995, at 63; see Aymette v. State, 21 Tenn. (1 Hum.)
154, 157 (1840).

The majority did not dispute that in 1791 this phrase
normally meant carrying weapons in military service; rather, it stated
that this usage was not “exclusive[]” or “absolute.” PA23a. The
majority then held that the words should not be read based on their
common meaning because of supposed tension with the word “keep” in
the second clause. PA26a-27a. But the notion that these capable
draftsmen meant to create an Amendment with such internal tensions that
it could not be read naturally and harmoniously as a whole is
unpersuasive.

There is no tension in the text if “bear Arms” is
read in its military sense. The District does not contend that
individuals may not “keep” their “Arms,” but that they may keep
them only if they have a militiarelated reason for doing so. The
majority’s assertion that “keep” must mean “keep for private
use,” id., simply begs the question of whether the Second Amendment
protects only militia-related rights.

Fourth, the majority below also emphasized that the
Second Amendment protects a “pre-existing right” and that guns were
used in the founding era for private purposes. PA20a-22a. There is no
persuasive reason, however, to believe that the Amendment protects all
such uses, rather than retaining that role for the common law or state
constitutions. See United States v. Cruikshank, 92 U.S. 542, 553 (1876) (the
right to bear arms “is not a right granted by the Constitution. Neither is it in any manner dependent upon
that instrument for its existence.”).

Fifth, the majority relied on the words “right of the
people” (PA18a-19a, 27a), but recognizing such a right does not define
its scope. The question is not whether individuals can enforce the right
protected by the Second Amendment. The question instead is whether this
right is limited to the possession of militia-related weapons.⁴

The majority suggested that the language chosen was
“passing strange” if the “sole concern [was] for state
militias.” PA14a. Far “strange[r],” however, was the majority’s
supposition that the Framers would have written the Amendment this way
to protect private uses of weapons. Respondent seeks to own a handgun
for self-defense in his home. If the Framers had intended the Amendment
to protect that use beyond whatever rights existed at common law or in
state constitutions, they would have omitted the opening clause entirely
and used non-military language rather than “bear Arms.”

The Framers’ phrasing of the Second Amendment was in
fact a natural way to protect a militia-related right. As the majority
itself emphasized, the surrounding amendments are part of “a catalogue
of cherished individual liberties.” PA22a. Given the context, it made perfect sense to speak of “the right of the
people” to describe what rights the people held against the federal
government. Entitling individuals to exercise this right only as part of
a state-regulated militia was consistent with the Framers’ recognition
that the states and the people would defend each others’ interests.
See The Federalist No. 29 (Hamilton), No. 45, (James Madison), No. 46
(Madison).

That understanding is also consistent with the Militia
Clauses in the body of the Constitution, Art. I, § 8, cls.15-16. Clause
15 allows Congress to call forth the militia into federal service, while
Clause 16 makes clear that the federal government shall provide for
“organizing, arming [as in “bear Arms”], and disciplining, the
Militia [so that they will be well-regulated].” They further reserve
to the states the appointment of officers and the training of the
Militia “according to the discipline prescribed by Congress.” The
natural reading of the Second Amendment in light of these clauses is
that it ensures that, despite the broad powers given to Congress, it
could not disarm the people serving in state militias.

The history discussed next confirms that reading. The
Bill of Rights limited the federal government to protect both individual
liberty and states’ rights. In the context of the Second Amendment,
both causes were served by establishing a check on a powerful new
federal government that might otherwise disarm the people serving in
state militias under the powers granted by the Militia Clauses. Of equal
significance, history also shows that the Framers made deliberate
drafting choices to address this particular concern, while evidencing no
support for any other purpose.

B. The Historical Context And Drafting History Of The
Second Amendment Confirm The Framers’ Military Purpose.

Reading the text of the Second Amendment as a unified
whole to protect only militia-related firearm rights reflects the
concerns expressed by the Framers from the time of the Constitutional
Convention through adoption of the Amendment by the First Congress. The
Amendment was a response to related fears raised by opponents of the
Constitution: that Congress would use its powers under the Militia
Clauses to disarm the state militias; and that states and their citizens
would be forced to rely for protection on a national standing army,
widely feared as a potential oppressor.

The District focuses on the development of the
Amendment’s language. It traces the Amendment from proposals by the
Virginia ratifying convention through James Madison’s adaptation of
that language and later revisions in the First Congress. This approach
avoids the unsound use of remote events and widely scattered expressions
by individuals not directly involved in drafting the language. This
properly focused review of the history confirms that the Second
Amendment is only a militia-related provision.

1. The Second Amendment was a response to the
Constitutional Convention’s decision to permit Congress both to
establish a standing army and to exert substantial control over state
militias. The Confederation militia system had proven to be a source of
instability, most notably during Shays’s Rebellion in 1786. Angry
farmers, joined by militia units drawn from the area, threatened civil war in Massachusetts. The
rebellion was suppressed using state-officered militia units, but it
gravely concerned the men at the Constitutional Convention in 1787. See
Finkelman, supra, at 211-12; 1 Records of the Federal Convention
of 1787, at 18-19 (Max Farrand ed., Yale Univ. Press
1937) (1911); 2 id. at 332; cf. The Federalist No. 21, at 140 (Hamilton)
(citing rebellion as forerunner of ruin of law and order). Accordingly,
the Framers provided that the national government would have a
professional army and gave Congress powers over state militias,
including the power to “provide for organizing, arming, and
disciplining” them. U.S. Const. art. I, § 8, cls.12-16; see Perpich,
496 U.S. at 340 (Framers “recogni[zed] . . . the danger of relying on
inadequately trained [militia] soldiers as the primary means of
providing for the common defense”).

The Militia Clauses were denounced by AntiFederalist
delegates to the Constitutional Convention and produced a “storm of
violent opposition” at state ratifying conventions. Frederick B.
Wiener, Militia Clauses of the Constitution, 54 Harv. L. Rev. 181, 185
(1940); 1 Records, supra, at 330-31, 385, 387, 388; 3 id.
at 209. One particular concern was that a federal standing army would
prove tyrannical, especially if the state militias became ineffective
counterweights. Saul Cornell, A Well-Regulated Militia: The Founding
Fathers and the Origins of Gun Control in America 41-50 (Oxford Univ. Press 2006). American experiences
under the Crown had made standing armies objects of fear and revulsion.
Id. at 9-13; see The Declaration of Independence para. 13 (“He has
kept among us, in times of peace, Standing Armies without the Consent of
our legislatures.”). The shift from total state control of the militias to concurrent control
with federal preeminence disturbed convention delegates, but “there is
precious little evidence that advocates of local control of the militia
shared an equal or even secondary concern for gun ownership” for personal uses. R. Don Higginbotham,
The Federalized Militia: A Neglected Aspect of Second Amendment Scholarship,
55 Wm. & Mary Q. 39, 40 (1998); see Jack N. Rakove, The Second Amendment: The Highest Stage of Originalism,
76 Chi.-Kent L. Rev. 103,
153-54 (2000); H. Richard Uviller & William G. Merkel, The Second Amendment in Context: The
Case of the Vanishing Predicate, 76 Chi.-Kent L. Rev.
403, 480-95 (2000).

The fear that the Militia Clauses give Congress exclusive
power to arm the militias and thus the power to “disarm” them, by
failing to provide arms, engendered particularly contentious debates at
the Virginia ratifying convention. George Mason warned that Congress
could use its militia powers to compel reliance on a standing army:

The militia may be here destroyed . . . by disarming
them. Under various pretences, Congress may neglect to provide for
arming and disciplining the militia; and the state governments cannot do
it, for Congress has an exclusive right to arm them . . . . Should the
national government wish to render the militia useless, they may neglect
them and let them perish . . . .

3 John Elliot, Debates in the Several State Conventions
on the Adoption of the Constitution, as Recommended by the General
Convention at Philadelphia, in 1787, at 379 (2d ed. 1836). Patrick Henry
concurred (id. at 51-52, 257) and Mason asked for “an
express declaration that the state governments might arm and discipline
them.” Id. at 380. When Madison responded that Congress’s power to
provide for arming the militias posed no threat to the militia because
the states shared authority to arm the militia under the Militia Clauses
(id.), Henry disagreed. Id. at 386.

To deflect demands to convene a second constitutional
convention before ratification, the Virginia Federalist delegates agreed
to append proposals for changes to the Constitution for Congress to
consider at the first opportunity. Kenneth R. Bowling, “A Tub to the
Whale”: The Founding Fathers and the Adoption of the Federal Bill of
Rights, 8 J. Early Republic 223, 227 (1988); 3 Elliot, supra, at 657-62.
Without debate, the convention unanimously adopted forty additions and
changes presented by a committee (to which Madison, Mason, and Henry
belonged) including:

17th. That the people have a right to keep and bear arms;
that a well regulated militia composed of the body of the people trained
to arms is the proper, natural and safe defence of a free state; that
standing armies in time of peace are dangerous to liberty, and therefore
ought to be avoided as far as the circumstances and protection of the
community will admit; and that, in all cases, the military should be
under strict subordination to, and be governed by, the civil power.

* * *

19th. That any person religiously scrupulous of bearing
arms ought to be exempted, upon payment of an equivalent to employ another to bear arms
in his stead.

Id. at 659. Separately, the convention proposed amending
the Militia Clauses directly: “11th. That 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.” Id. at 660.⁵

No one at the Virginia ratifying convention mentioned a
need to protect weapons for personal use from federal (or state)
regulation. Instead, the persistent Anti-Federalist theme concerned arms
to protect the state and its citizens against domestic and foreign
enemies, including (in 1789) a potentially oppressive federal government
using a standing army.

2. When the Anti-Federalists failed to prevent
ratification of the Constitution, they shifted tactics and urged the
addition of a Bill of Rights that they hoped would limit federal power,
including the power over state militias. The Federalists in control of
the First Congress were unwilling to undo what they had achieved, but
were willing to make clear that the federal government could not violate
certain rights or trump reserved state powers. With respect to the
Second Amendment, that meant clarifying that the federal government
could not deny the people the right to keep and bear arms in service of
state militias.

The language used in the Second Amendment originated from
the amendments proposed at the Virginia ratifying convention, but the
wording changed during the drafting process in the First Congress.
Madison, the initial drafter of the Amendment, made several changes to
the Virginia proposals, notably merging the conscientious objector
provision (19th) with the right to bear arms and militia provisions
(17th):

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 scrupulous of
bearing arms, shall be compelled to render military service in person.

1 Gales & Seaton’s History of Debates in Congress (“Debates”) 451 (1789). Although the
conscientious-objector clause did not survive, the initial inclusion of
the “bear arms” phrase in both the first and third clauses strongly
supports the conclusion that Madison understood the Amendment as a whole
to relate to military service alone.

Madison’s draft was revised to make the Amendment’s
exclusively military focus even clearer. A select House committee
meeting in executive session transposed the first two clauses, making
the reference to a “well regulated Militia” more prominent, and
substituted a comma for the semi-colon, underscoring the connection
between the two clauses. Id. at 170. The new structure and punctuation
reflected the fact that the need to protect the right followed from the
need for the militias. The committee shifted the militia’s role from
ensuring “the security of a free country” to “the security of a free State,” highlighting the role
of the militia in defending the state. Id.

All remarks recorded in the House’s debate related to
military service; none pertained to private use of weapons, including
self-defense. 1 Debates, supra, at 778-81; see Roy G. Weatherup,
Standing Armies and Armed Citizens: An Historical Analysis of the Second
Amendment, 2 Hastings Const. L.Q. 961, 995 (1975).
Members of the House also debated the conscientious-objector clause, and
their comments show that House members understood the Amendment as a
whole to relate to military service. 1 Debates, supra, at 778-80. For
instance, Elbridge Gerry opined: “If we give a discretionary power to
exclude those from militia duty who have religious scruples, we may as
well make no provision on this head.” Id. at 779.

The Senate, meeting in closed session without recorded
debate, altered the House draft to the present language and retained the
direct connection between explicit purpose and right. Beyond striking
the conscientious-objector clause, the Senate eliminated the House’s
description of the militia as “composed of the body of the people.” 1
Journal of the First Session of the Senate (“Journal”) 71 (Gales and Seaton 1789).
That phrase might have been seen to undermine Congress’s power under
the Militia Clauses to decide how to organize the state militias. Rakove,

supra, at 125. The Senate substituted “necessary for the security”
in place of “the best security” (Journal, supra, at 77) but that
substitution changed neither the clause’s subject (the militia) nor
its object (the security of a free State) and so left the military
import intact.

The Senate rejected an amendment to add “for the common
defence” after “Arms.” Journal, supra, at 77. Such an amendment,
while consistent with one purpose of the Militia Clauses, could have
been thought inconsistent with another purpose: using the militias for
law enforcement. Rakove, supra, at 126. The change also could have been
understood to refer to common defense of the Nation and thus to detract
from the guarantee that the militia also existed to protect the security
of individual states. In any event, especially given the opening clause,
the Amendment’s “military sense is the obvious sense. It does not
cease to be the obvious sense if something that might have been added
was not added.” Garry Wills, A Necessary Evil: A History of American Distrust of Government
64 (Simon & Schuster 1999).⁶

3. In addition to this affirmative history of what was
said and done, common understandings of state arms provisions at the time further support the
conclusion that the right recognized by the Second Amendment relates
only to arms for the common defense.

In 1789, several state constitutions and declarations of
rights included provisions recognizing a right to arms only for that
purpose. Massachusetts explicitly recognized the right of the people to
“keep and bear arms for the common defence.” The Complete Bill of Rights: The Drafts, Debates, Sources,
and Origins 183 (Neil H. Cogan ed., 1997). North Carolina had materially similar wording.
Id. at 184.
These provisions were coupled with declarations that standing armies are
“dangerous to liberty” and should not be “maintained” or “kept
up.” Id.

Other state constitutions did not address arms possession
directly but stressed the need for militia— and, by extension,
privately owned military arms—for the common defense in place of a
standing army. With minor variations, the Delaware, Maryland, and
Virginia constitutions recognized that “well-regulated militia”
provide “the proper, natural, and safe defence” of a “free
State” or “free government” and that “standing armies are
dangerous to liberty.” Id. at 18385. New York’s constitution stated
that it was the “Duty of every Man to be prepared and willing to
defend [the State]” and therefore the “Militia of the State at all
times . . . shall be armed and disciplined and in Readiness for
Service.” Id. at 183. If there was a right associated with these
declarations, it was only to have arms for common defense, making a
standing army unnecessary. Robert Hardaway, The Inconvenient Militia Clause of the Second Amendment,
16 St.
John’s J. Legal Comment. 41, 82 (2002).⁷

Article XIII of Pennsylvania’s 1776 declaration of
rights is another example of the dominant focus of these provisions on
communal defense:

That the people have a right to bear arms for the defense
of themselves and the state; and as standing armies in the time of peace
are dangerous to liberty, they ought not to be kept up: And that the
military should be kept under strict subordination to, and governed by,
the civil power.

Cogan, supra, at 184. There is strong support for the
proposition that Article XIII protects only a right to bear arms for
communal (rather than personal) self-defense. Nathan Kozuskanich,
Defending Themselves: The Original Understanding of the Right to Bear
Arms, 39 Rutgers L.J. 1041 (forthcoming 2008) (discussing how Article
XIII originated from dispute between frontiersmen seeking state support
for community self-defense organizations and Quaker-dominated legislature
that refused to provide it); see Saul Cornell & Nathan DeDino,
A
Well-Regulated Right: The Early American Origins of Gun Control, 73
Fordham L. Rev. 487, 495-96, 498 (2004). More significantly, the specific language in Article XIII—
“defense of themselves”—is not in the Second Amendment.⁸

While state provisions differed, “the meaning was the
same. Only the citizenry, trained, armed, and organized in the militia,
could be depended on to preserve republican liberties for
‘themselves’ and to ensure the constitutional stability of ‘the
state.’” Lawrence D. Cress, An Armed Community, 71 J. Am.
Hist. 22, 29 (1984).

Subsequently, many states adopted constitutions that
protect some right to bear arms. See generally Eugene Volokh, State
Constitutional Rights to Keep and Bear Arms, 11 Tex. Rev. L. & Pol.
191 (2006). They are far from uniform, with a few tracking the Second
Amendment, others explicitly protecting self-defense, others focusing on
common defense, and some specifically including a right to hunt. These
provisions illustrate how easy it would have been to provide for a right
to own guns for private use and to decouple that right from the
preservation of state militias. They also illustrate how guaranteeing
some right to gun ownership has been considered vital in some, but not
all, jurisdictions.

4. Not only were there extant state constitutional
provisions that informed the drafters of the Second Amendment, but three
proposals were introduced at state ratifying conventions that would have
expressly protected a right to arms for personal use. See 2 Schwartz,

supra, at 761 (“Congress shall never disarm any Citizen unless such as are or have been in Actual
Rebellion”) (New Hampshire); id. at 658-59 (“That the people have a
right to bear arms for the defence 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 . . . .”)
(Pennsylvania minority); id. at 675, 707 (“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”) (Massachusetts minority). Only New Hampshire’s proposal
gained ratifying convention approval.

Madison culled his proposals from a 1788 pamphlet entitled The Ratifications of the New Federal
Constitution, Together with the Amendments, Proposed by the Federal
States. 11 The Papers of James Madison 299 (C.F. Hobson et al. eds., 1977). Had any of these
alternative formulations been used by Congress, a right to weapons
possession for private purposes would have been established, but none
was debated, much less adopted. That Congress ignored these alternatives
and instead tied the right to the militia strongly suggests that
Congress’s exclusive intent was to protect a militia-related right.

5. This history firmly supports the District’s reading
of the Second Amendment: seeing a problem—the possibility of disarmed
state militias—the Framers acted to address it. They did so by
protecting the right of citizens to own guns to support those militias,
but they never saw private gun ownership as a need to be addressed, and
they did not accept those proposals that would have expressly protected a right to
self-defense.

The majority below suggested that its view was also
compatible with this history, on the theory that securing a broad right
to possess weapons for private purposes would enable states to summon
armed militiamen to muster. PA44a. But the fear that Congress might
disarm the citizenry outside the context of militia service was never
expressed by any person known to be involved with the passage of the
Second Amendment. Indeed, it is doubtful that Congress’s limited
powers, as understood in 1791, would have been thought to encompass any
power over firearms outside the militia context. See United States v.
Lopez, 514 U.S. 549 (1995). If the majority were correct, that would
imply that the Framers held a surprising view of congressional authority
and adopted an overbroad solution to the problem that they identified.

Moreover, the Framers likely would have feared that a
broad constitutional right to possess weapons for private purposes might
undermine their avowed end. Actions by individuals, unilaterally
deciding what weapons to keep and how and when to use them for one’s
own purposes, do not ordinarily promote “the security of a free
State.” Events like Shays’s Rebellion were vivid reminders that such
actions could endanger state security. The Framers of the Second
Amendment therefore placed their trust specifically in the “well
regulated Militia” rather than armed individuals acting on their own.

That decision is apparent not only from the Amendment’s
text, but also the care both the House and the Senate took in crafting
it. They were particularly meticulous regarding what became the first clause;
indeed, the second clause as enacted has the same words as Madison’s
draft. Their efforts surely were purposeful, and should not be ignored
two centuries later. History refutes the view of the majority below that
all this attention was directed to a clause that does no more than
announce one of the purposes of the Second Amendment.

* * *

In sum, in light of the language and history, the best
construction of the Second Amendment is one that is consistent with
Miller’s interpretive principle and that recognizes a right having
“some reasonable relationship to the preservation or efficiency of a
well regulated militia.” 307 U.S. at 178. The Amendment does not
protect—and was never intended to protect— a right to own guns for
purely private use. Because respondent does not assert a right to keep
or bear arms in connection with militia duties, he has no Second
Amendment claim.

II. THE SECOND AMENDMENT DOES NOT APPLY
TO LAWS LIMITED
TO THE DISTRICT OF COLUMBIA.

The judgment must be reversed for the independent reason
that the Second Amendment was intended as a federalism protection to
prevent Congress, using its powers under the Militia Clauses, from
disarming state militias. The Amendment thus “is a limitation only
upon the power of Congress and the National government” and does not
constrain states. Presser v. Illinois, 116 U.S. 252, 265 (1886). Laws
limited to the District similarly raise no federalism-type concerns,
whether passed by Congress or the Council, and so do not implicate the Second Amendment. The majority
concluded otherwise by asserting that the entire Bill of Rights applies
to the District, but that reason does not support its conclusion.

Although many of the concerns expressed in the Bill of
Rights apply to the actions of governments generally, the primary goal
of those who demanded it as a condition of ratification of the
Constitution was to control the federal government, which had been given
powers previously belonging to the states. That is especially true with
respect to the inclusion of the Second Amendment, which was prompted by
fear of the federal government’s standing army and control over state
militias. There was no expressed concern that states might disarm their
citizens; the Amendment was enacted to protect states’ prerogatives,
not constrain them. Thus, even if this Court were to read the Second
Amendment to protect private uses of firearms, the right should be
limited in application to constraining federal legislation that could
implicate the Amendment’s “obvious purpose to assure the
continuation and render possible the effectiveness of” state militias.

Miller, 307 U.S. at 178.

Legislation limited to the District, where federal-state
relations are not at issue, cannot implicate this obvious purpose.
National limitations on what firearms may be possessed privately could
conflict with a state’s ability to call forth a militia armed as the
state sees fit. As the majority below recognized, the Amendment ensures
“that citizens would not be barred from keeping the arms they would
need when called forth for militia duty.” PA44a. But for the District
there could be no conflict because Congress retains ultimate legislative
power over whether and how to arm any militia, even when it delegates power to the
District’s local government. See Sandidge v. United States, 520 A.2d
1057, 1059 (D.C. 1987) (Nebeker, J., concurring).

Whatever the scope of the Second Amendment’s
protections in other contexts, its Framers could not have intended
Congress to be more constrained in the seat of federal power than a
state would be in its own territory. The Framers established a federal
enclave in large part because of an incident in 1783 in which
disgruntled, armed soldiers surrounded the State House in Philadelphia,
forcing the Continental Congress to flee. Kenneth R. Bowling, The Creation of
Washington D.C.: The Idea and Location of the American Capital 30-34, 76 (1991). Congress then depended on
its host government for protection, and when “an angry regiment of the
Continental Army demanding back pay” disrupted its proceedings, it
asked Pennsylvania’s Executive council to “call out the militia”
to restore control. Lawrence Delbert Cress, Whither Columbia? Congressional Residence and the Politics of the
New Nation, 1776 to 1787, 32 Wm. & Mary Q. 581, 588 (1975). The council refused, and Congress had to
leave the city. Id.

In response, Madison declared that the federal government
needed “complete authority over the seat of government” because,
without it, “the public authority might be insulted and its
proceedings interrupted.” The Federalist No. 43, at 272 (Madison). The
Framers therefore included the Seat of Government Clause, U.S. Const.
art. I, § 8, cl.17, which provides Congress with plenary authority over
this jurisdiction and explicitly allows the “Erection of Forts,
Magazines, Arsenals, dock-Yards, and other needful Buildings,” to ensure that the new government could
defend itself.

Particularly given that concern, the Framers could not
have intended to deprive the federal government of the most important
power of self-protection it has under the Seat of Government Clause by
disabling Congress from enacting firearms regulations. To the contrary,
they would have expected that Congress had the power to enact the types
of laws at issue here under that clause. It is not plausible to think
that Congress intended to restrict itself in regulating firearms in the
jurisdiction in which federal interests like the White House, the
Capitol, and this Court had to be most secure.

That view is particularly illogical because it suggests
that the Framers uniquely disabled firearm regulation in the District
and other federal enclaves, such as the territories and military bases.
This Court has squarely held that the Second Amendment was adopted as a
limitation on only federal, not state, legislation. Presser, 116 U.S. at
265. Although the majority below suggested that the Second Amendment may
subsequently have been incorporated against the states through the
Fourteenth Amendment (PA37a38a n.13), there is no dispute that the
Second Amendment did not limit the states’ regulatory authority over
firearms when enacted.⁹

As noted above, some states have chosen to adopt
constitutional provisions on gun rights and some have not. If the
majority below were correct, neither Congress nor the Council would have
comparable ability to choose whether similar constraints on legislative
authority to enact gun-control laws are appropriate for the District.
There is no reason for Congress and the Council to have less authority
in the District than a state legislature would have.

Indeed, the claim below that every provision of the
Constitution that restricts the national powers of Congress
automatically applies when it acts pursuant to the Seat of Government
Clause is simply wrong. See Loughboro v. Blake, 18 U.S. (5 Wheat.) 317, 318
(1820). For instance, before the Sixteenth Amendment was
ratified, this Court enforced the limitation on Congress’s power to
impose a “Capitation, or other direct, Tax” in Article I, § 9,
Clause 4, just as it enforces the Bill of Rights. Pollock v. Farmers’
Loan & Trust Co., 157 U.S. 429 (1895). Nonetheless, the Court held
that the limitation did not apply to a real estate tax enacted by
Congress limited to the District. Gibbons v. District of Columbia, 116 U.S. 404 (1886).
And if precise parallelism were a constitutional mandate,
it would suggest that the judges of the District’s local court system
would merit the protections of Article III, although this Court has held
otherwise. Palmore v. United States, 411 U.S. 389, 397-98, 407-10
(1973). If the Second Amendment is read in light of the Constitution as
a whole and in historical context, it too does not constrain Congress’s authority over the
District.

The fact that the laws in question here were enacted by
the Council rather than Congress makes all the more clear that the laws
do not implicate the concerns animating the Second Amendment. Congress
established the Council as a local legislature that may enact
legislation only for the District. D.C. Code § 1203.02. The Council
lacks the power to raise and maintain a standing army, let alone to
affect militias or gun rights in the states. There is no reason to think
that the Framers were worried about local entities like the District,
acting through locally elected legislators, disarming their citizens,
with no impact beyond their borders.

The Second Amendment thus has no bearing on what the
District can do in the area of firearms regulation, just as it has no
bearing on what the states can do. The routes to those conclusions
differ, because the applicable constitutional doctrines are different.
But the result should be the same: the District is subject to no more
restrictions under the Second Amendment than are the states and
localities acting under them. Thus, even if the Second Amendment
protects possession of guns for personal purposes, that protection does
not extend to a law limited to the District.

III. THE DISTRICT’S REASONABLE
GUN-CONTROL LAWS DO NOT
INFRINGE THE RIGHT TO KEEP AND BEAR ARMS.

In any event, the laws at issue should be upheld for the
independent reason that they represent a permissible regulation of any
asserted right. The rights protected by the Bill of Rights have “from
time immemorial been subject to certain well-recognized exceptions
arising from the necessities of the case.” Robertson v. Baldwin, 165
U.S. 275, 281 (1897). After concluding that existing laws were
insufficient, the Council reasonably found that it could substantially
reduce the tragic harms caused by guns by regulating which weapons are
available to District residents, how residents should store lawfully
owned weapons, and who should be licensed to carry concealable weapons.
The Council properly acted to reduce those harms without functionally
disarming residents. Its reasonable legislative judgment should be
upheld even if the Second Amendment is construed to protect the
possession of firearms for self-defense in the District.

A. The Constitution Permits Reasonable Restrictions On
The Ownership And Use Of Guns.

As the majority below purported to accept, governments
may impose “reasonable restrictions” on the exercise of any Second
Amendment right. PA51a. The United States agrees that “reasonable
restrictions designed to prevent possession by unfit persons or to
restrict the possession of types of firearms that are particularly
suited to criminal misuse” are constitutional. Brief for the United
States in Opposition at 20 n.3, Emerson v. United States, 536 U.S. 907 (2002)
(No. 01-8780). State courts interpreting their state
constitutions uniformly uphold reasonable regulations as well.¹⁰ Adam Winkler,
Scrutinizing the Second Amendment, 105 Mich. L. Rev. 683, 686-87 (2007). As one
court explained, the constitutional text is subject to a rule of reason
because the common law right to self-defense is subject to that rule.
Benjamin v. Bailey, 662 A.2d 1226, 1232-35 (Conn. 1995).

To strike down reasonable regulations of guns would flout
a long legal tradition. Our legal system has historically permitted
reasonable regulation of guns for public safety purposes. That was true
in England and in the colonies, and remains true in the states. See Lois
G. Schwoerer, To Hold and Bear Arms: The English Perspective, 76 Chi.-Kent L. Rev.
27, 35-36 (2000); Cornell, supra, at 26-30. For example,
Pennsylvania and Delaware passed acts prohibiting the firing of guns in
cities and towns. Act of Feb. 9, 1750, ch. CCCLXXXVIII, 1750-1751 Pa.
Laws 108; Act of Feb. 2, 1812, ch. CXCV, 1812 Del. Laws 522.
Massachusetts prohibited Boston citizens from keeping loaded firearms in
their homes. Act of Mar. 1, 1783, ch. XIII, 1783 Mass. Acts 218. State
and local legislatures (including in the District) later began to
regulate weapons more heavily, banning concealed weapons or even the
sale of concealable weapons. E.g., Act of Feb. 1, 1839, no. 77, 1839
Ala. Laws 67; Act of Feb. 10, 1831, ch. XXVI, § 58, 1831 Rev’d Laws
of Ind. 180, 192; Act of Jan. 27, 1838, ch. 137, 18371838 Tenn. Pub.
Acts 200; see supra pages 2-3. Federal regulation of gun possession and
use was added in the twentieth century. E.g., National Firearms Act, Act
of June 26, 1934, Pub. L. No. 73-474, 48 Stat. 1236.

As the authorities, history, and practical realities all
indicate, the Second Amendment affords elected officials substantial
discretion to regulate guns. As guns have become cheaper and more
lethal, state and local governments and Congress have matched the threat
with increased regulation. The government must be allowed to respond
appropriately to the threats posed by guns. That is particularly so
regarding local laws like this one. Even if the Second Amendment were
intended to apply to such laws, the Framers’ overarching desire to
support state prerogatives (consistent with basic concepts of
federalism) requires that the Amendment at a minimum allow local
governments to make different tradeoffs based on local conditions.¹¹

The District does not suggest that gun regulations should
be subject to mere rational basis review. Instead, if the Second
Amendment is found to protect a right of gun ownership for purposes of
self-defense, a reasonableness inquiry would consider the
legislature’s actual reasons for enacting a law limiting exercise of
the right. Furthermore, whatever those reasons, a law that purported to
eliminate that right—for instance, by banning all gun possession, or
allowing only a firearm that was so ineffective that the law
effected functional disarmament—could not be reasonable. Cf. Lucas v. South Carolina Coastal Council,
505 U.S. 1003 (1992) (land use regulation constitutes
“taking” only when it eliminates essentially all use for property);
People v. Blue, 544 P.2d 385, 391 (Colo. 1975) (state may not render
state constitutional right to bear arms “nugatory”). But at least
where a legislature has articulated proper reasons for enacting a
gun-control law, with meaningful supporting evidence, and that law does
not deprive the people of reasonable means to defend themselves, it
should be upheld. See Winkler, supra, at 716-19 (describing how state
courts apply this type of deferential standard).

B. The Court Of Appeals Applied The Wrong Standard,
Created An Unworkable Test, And Misconstrued Relevant Precedent.

Although the majority below purported to recognize the
“reasonableness” standard, the rule it adopted makes the
reasonableness of the legislature’s judgment irrelevant: “Once it is
determined . . . that handguns are ‘Arms’ referred to in the Second
Amendment, it is not open to the District to ban them.” PA53. But this
Court has never adopted such a per se rule for any provision in the Bill
of Rights. The rights it protects are not absolute, and the
“necessities of the case”—particularly public safety
concerns—may justify the regulation of a protected right. Robertson,
165 U.S. at 281; see also Maryland v. Buie, 494 U.S. 325 (1990) (Fourth Amendment does not require
endangering safety of law enforcement officers); New York v. Quarles,

467 U.S. 649 (1984) (same for Fifth Amendment). “[W]hile the
Constitution protects against invasions of individual rights, it is not
a suicide pact.” Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963). Nothing in the Second Amendment’s text
or history suggests that it precludes legislatures from protecting their
citizens by banning particularly dangerous types of weapons.

Rather than consider the “necessities of the case” or
the legislature’s careful judgment, respondent argues that any weapon
“in common use” that has a “military application” is an arm that
cannot be banned no matter what other weapons remain available for
self-defense. Response to Petition for Certiorari 24-26. The court of
appeals’ equally inflexible and categorical rule would also require
that the weapon be a “lineal descendant” of a “founding-era
weapon.” PA51.

This test is neither meaningful nor workable. Is the
assault rifle a lineal descendant of the musket? How “common” must
the weapon’s use be, and in what locations and in what populations
would the test be run? Because every firearm has some military
application, how well-suited must it be? If the majority’s test had
any limits to it, handguns might not be “arms.” See United States v. Parker, 362 F.3d 1279,
1284 (10th Cir. 2004); Quilici v. Village of Morton Grove, 695 F.2d 261, 270 n.8 (7th Cir. 1982).

More important, the test leads to tragic results. It
suggests, for instance, that Congress could ban the private ownership of
a particularly dangerous weapon right after its invention, before it
grows into common use, yet not if its dangerousness becomes clear only
after its use becomes widespread. This impractical and coldhearted
result does not follow even from a self-defense reading of the Second
Amendment. As the majority below recognized, “the government’s interest in public safety” allows it to bar certain
members of “the people” (such as felons) from exercising any Second
Amendment rights. PA52a. The same interest should allow the government
to bar particularly dangerous arms, whether or not they are “lineal
descendants” of far less powerful “Arms” from 1791.

The majority below was mistaken in its view that Miller
supports the per se test it crafted. The logical result of the holding
in Miller—that Congress may ban all short-barreled shotguns—in fact
suggests that the District’s handgun ban is constitutional. It is hard
to see why short-barreled shotguns would not have some military
application, and they were in sufficiently common use then for Congress
to see a need to ban them. As for the lineal-descendant requirement, a
short-barreled shotgun seems at least as related to its forebears as
modern automatic handguns are to the pistols used by the militia in
1792.

Miller did not in fact define certain categories of
“arms” that are entitled to Second Amendment protection; rather, it
required that “possession or use” of the weapon in question “at
this time ha[ve] some reasonable relationship to the preservation or
efficiency of a well regulated militia.” 307 U.S. at 178. This
establishes that a weapon must have at least potential militia use for
the Second Amendment even to be implicated. Miller says nothing,
however, about what are protected “arms” under a self-defense theory
of the Amendment never mentioned in the case. Moreover, Miller never
suggests that if a weapon is of the type that might be kept by someone
in the militia, its potential status as an “arm” would be sufficient
to render the weapon immune to proscription.

Indeed, the holding below that the Constitution bars the
District from choosing which particular arms to allow is precisely
backwards, as the Militia Clauses and the Second Amendment contemplate
that choosing among arms is the government’s duty. Again, those
mustering for militia service were required to bring those weapons
chosen by the legislature. See supra pages 13-14. If the opening clause
of the Second Amendment has any meaning, the rule adopted below—which
pays no heed to whether a particular arm would meet a militiaman’s
obligations—cannot stand.

The majority’s attempt to draw support by analogy to
the First Amendment also fails. PA51a-52a. On a fundamental level, the
analogy is inapt. Regulating dangerous weapons is at the heart of any
government’s traditional police power. Unlike speech restrictions, gun
regulations raise no risk of viewpoint discrimination and no specter of
silencing the views of the opposition. And, of course, the First
Amendment does not have an opening clause comparable to that in the
Second.

But even if the First Amendment analogy were applicable,
it would confirm that the District’s gun regulations are entitled to
great deference and are constitutional. The decision below anomalously
provides that no arm may be banned under the Second Amendment even
though some forms of speech and some religious practices can be banned
under the First. See, e.g., United States v. O’Brien, 391 U.S. 367 (1968)
(speech mixed with conduct); Roth v. United States, 354 U.S. 476 (1957)
(obscenity); Employment Div. v. Smith, 494 U.S. 872, 876-82 (1990) (ingesting peyote). In
particular, speech can be banned when it creates sufficient risks to
public order or safety. See, e.g., Brandenburg v. Ohio, 395 U.S. 444 (1969) (incitement to
“imminent lawless action”); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (“fighting words”). It
is difficult to imagine that the practical men who wrote the Bill of
Rights meant to allow banning potentially harmful speech, but not
particularly dangerous firearms.

Moreover, as the panel majority recognized, protected
speech may be subjected to “time, place, or manner” restrictions.
PA51a (citing Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)).
Although handguns are banned in the District, rifles and shotguns are
not. So long as homeowners have a means of defending themselves, the
handgun ban can be understood to be the Second Amendment analog to a
time, place, or manner restriction properly tailored to the District’s
unique status as an urban jurisdiction. Indeed, First Amendment
jurisprudence makes clear that “alternative” means of exercising a
right need not be precisely equivalent to the banned or burdened means. See,
e.g., Renton v. Playtime Theatres, Inc., 475 U.S. 41, 53-54 (1986). If the Second Amendment has a
self-defense purpose, it is concerned with the practical realities of
functional disarmament—not guaranteeing a choice among whatever
weapons fit the labels in the court of appeals’ test. Cf. NAACP v.
Button, 371 U.S. 415, 429 (1963).

C. The District’s Gun Regulations Satisfy The
Reasonableness Standard.

In 1976, the District’s elected representatives
determined that existing gun-control laws needed to be made more
effective. The much-debated and carefully-crafted legislative solution
included both a ban on handguns and a trigger-lock requirement for firearms
kept at home. It was the reasonable judgment of the District’s
political representatives that such a comprehensive package best
promoted public safety while respecting private gun ownership. In
addition, the District has a longstanding gun licensing requirement that
works with these provisions to promote public safety. The Second
Amendment should not be read to give the courts the authority to
overturn those reasoned judgments.

1. The Handgun Ban Limits the Unique Harms Posed by
Handguns in an Urban Environment.

a. The Council adopted a focused firearm restriction: it
banned private possession of handguns, but not rifles and shotguns.
Based on the evidence before it, the Council reasonably found that a
handgun ban would mitigate the very serious problem of handgun violence
in the District, including the use of handguns in crimes and their
misuse by normally law-abiding citizens. By their nature, handguns are
easy to steal and conceal, and especially effective for robberies and
murders. The dangers those weapons cause are particularly acute in the
District. As Councilmember Clarke noted, “The District of Columbia is
a unique place. . . . [O]ur area is totally urban. There is no purpose
in this city for . . . handguns other than to shoot somebody else
with.” Morning Council Sess. Tr. 73:9-12, May 3, 1976; see also
Morning Council Sess. Tr. 47:20-21, May 18, 1976.

The evidence on which the Council relied was more than
sufficient to justify its decision to act. See supra pages 4-6. The
Council had a manifestly reasonable basis to conclude that handguns are uniquely dangerous,
and that the dangers to others, both in the home and outside of it,
justify the handgun ban. Moreover, its predictive judgment—that the
deaths and serious injuries that handguns would cause would more than
offset any benefits from allowing residents to keep handguns in their
homes—is precisely the kind of reasoned assessment that legislatures
rather than courts are tasked with making in our democracy.

The Council carefully balanced the costs and benefits of
its regulations, see supra pages 4-5, and its determinations are
entitled to substantial deference. See Gonzales v. Carhart, 127 S. Ct. 1610, 1636 (2007)
(legislature should receive deference in absence of
expert consensus). This Court “accord[s] substantial deference” to
legislatures’ predictive judgments. Turner Broad. Sys. v. FCC, 520 U.S. 180, 195 (1997)
(quoting Turner Broad. Sys. v. FCC (Turner I), 512 U.S. 622, 665 (1994) (plurality opinion)). Its “sole
obligation is ‘to assure that, in formulating its judgments, [the
legislature] has drawn reasonable inferences based on substantial
evidence.’” Id. (quoting Turner I, 512 U.S. at 666). The Council has
done so here.

b. In any event, subsequent evidence supports the
Council’s judgment that banning handguns saves lives. Many cities,
states, and nations regulate or ban handguns based on the unique dangers
of those deadly weapons.¹² Those dangers exist even when the gun is
kept at home and the owner is generally law-abiding and
responsible.

First, handguns are vulnerable to theft, and thus often
fall into the hands of criminals. Far more handguns than other firearms
are stolen—hundreds of thousands per year. Caroline W. Harlow, U.S.
Dep’t of Justice, Bureau of Justice Statistics, Survey of Inmates in State and Federal Correctional Facilities: Firearm Use by Offenders
1-3 (Special Rep. Nov. 2001), http://www.ojp.usdoj.gov/bjs/pub/pdf/fuo.pdf;
Marianne W. Zawitz, U.S. Dep’t of Justice, Bureau of Justice Statistics, Firearms, Crime, and Justice: Guns
Used in Crime 3 (July 1995), http://www.ojp.usdoj.gov/bjs/pub/pdf/guic.pdf. 

Inmates report (and statistics demonstrate) that the
handgun is their “preferred firearm.” Harlow, supra, at 1-3.
Handguns are the weapon most likely to be used in street crimes.
Although only a third of the Nation’s firearms are handguns, they are
responsible for far more killings, woundings, and crimes than all other
types of firearms combined. Zawitz, supra, at 2. Eighty-seven percent of
all guns used in crime are handguns. Craig Perkins, U.S. Dep’t of
Justice, Bureau of Justice Statistics, National Crime Victimization Survey, 1993-2001: Weapon Use and Violent
Crime 3 (Special Rep. Sept. 2003), http://www.ojp.usdoj.gov/bjs/pub/pdf/wuvc01.pdf. 

Handguns pose particular dangers to police officers,
including when executing warrants, pursuing felons, quelling domestic
violence, and otherwise entering into private homes. Of the 55 police officers
killed in felonies in 2005, 42 deaths were from handguns. See Federal
Bureau of Investigation, Uniform Crime Report—Law Enforcement Officers Killed and
Assaulted, at tbl.28 (2005), http://www.fbi.gov/ucr/killed/2005/table28.htm. 

A study of the District’s handgun ban concluded that it
coincided with an abrupt decline in firearm-caused homicides in the
District but no comparable decline elsewhere in the region. Colin Loftin

et al., Effects of Restrictive Licensing in Handguns on Homicide
and Suicide in the District of Columbia, 325 New Eng. J. Med. 1615 (1991). More recently, researchers
found that a 10% increase in handgun ownership increases the homicide
rate by 2%. See Mark Duggan, More Guns, More Crime, 109 J. Pol. Econ.
1086, 1095-98 (2001). Not surprisingly, other countries
have had success with handgun bans and nearbans. Cukier & Sidel,
supra, at 178-205.

Second, all too often, in the heat of anger, handguns
turn domestic violence into murder. Seventy-two percent of women killed
in firearm homicides in 2004 were killed by handguns. Violence Policy
Center, When Men Murder Women: An Analysis of 2004 Homicide Data, at 3 (Sept. 2006),
http://www.vpc.org/studies/wmmw2006.pdf.
People who live in houses with firearms, particularly handguns, are
almost three times more likely to die in a homicide, and much more
likely to die at the hands of a family member or intimate acquaintance
than people who do not. See Arthur L. Kellermann et al.,
Gun Ownership as a Risk Factor for Homicide in the Home, 329 New Eng. J. Med. 1084 (1993).

Third, handguns cause accidents, frequently involving
children. The smaller the weapon, the more likely a child can use it,
and children as young as three years old are strong enough to fire
today’s handguns. David Hemenway, Private Guns, Public Health 32 (2004). Every year, the majority of people killed in
handgun accidents are young adults and children, including dozens under
the age of 14. See National Center for Health Statistics, Trend C Table 292: Deaths for
282 Selected Causes, at 1888 (2006), http://www.cdc.gov/nchs/data/statab/gm292_3.pdf.

Fourth, handguns are easy to bring to schools, where
their concealability and capacity to fire multiple rounds in quick
succession make them especially dangerous. In urban areas, as many as
25% of junior high school boys carry or have carried a gun. Jack M. Bergstein
et al., Guns in Young Hands: A Survey of Urban
Teenagers’ Attitudes and Behaviors Related to Handgun Violence, 41 J. Trauma 794 (1996). In the
recent Virginia Tech shooting, a single student with two
handguns discharged over 170 rounds in nine minutes, killing 32 people
and wounding 25 more. Reed Williams & Shawna Morrison, Police: No
Motive Found, Roanoke Times, Apr. 26, 2007, at A1.

Fifth, handguns enable suicide. A study was conducted
comparing the District to nearby Maryland and Virginia immediately after
the District’s handgun ban was enacted, when no changes were made in
the Maryland and Virginia laws. There was a 23% drop in suicides by
firearms in the District and no increase in other suicide methods.
Loftin, supra. Moreover, the District’s overall, youth, and
firearms-related suicide rates have consistently been the lowest in the
Nation. See National Center for Injury Prevention and Control, WISQARS Injury Mortality Reports, 1999-2004,
http://webappa.cdc.gov/sasweb/ncipc/mortrate10_sy.html
(interactive database). Handguns pose a higher suicide risk than
other firearms; indeed, purchasing a handgun correlates to a doubled
risk that the buyer will die in a homicide or a suicide. See Hemenway
(Private Guns), supra, at 41; Peter Cummings et al., The Association Between the Purchase of a Handgun
and Homicide or Suicide, 87 Am. J. Pub. Health, 974, 976–77 (1997).

The Council had good reason to conclude that other less
restrictive measures were insufficient by themselves. PA104a. Safety
mechanisms, while helpful, do not always work as designed, and
compliance, even with mandatory safety laws, is imperfect. See Cynthia Leonardatos
et al., Smart Guns/Foolish Legislators: Finding the Right Public Safety Laws, and
Avoiding the Wrong Ones, 34 Conn. L. Rev. 157, 169 70, 178-80 (2001). Furthermore, safe-storage policies are
of no help where the handgun owner is determined to kill a family member
or himself.

Although there are competing views today, just as in
1976, the Council acted based on plainly reasonable grounds. It adopted
a focused statute that continues to allow private home possession of
shotguns and rifles, which some gun rights’ proponents contend are
actually the weapons of choice for home defense. Dave Spaulding, Shotguns for Home Defense: Here’s How to
Choose and Use the Most Effective Tool for Stopping an Attack, Guns & Ammo, Sept. 2006, at 42; Clint
Smith, Home Defense, Guns Mag., July 2005, at 50 (preferring rifles). The Second Amendment inquiry
requires no more.¹³

2. The Trigger-Lock Requirement
Is A Reasonable Safety
Regulation.

Like the handgun ban, the trigger-lock requirement in
D.C. Code § 7-2507.02 is a reasonable regulation designed to prevent
accidental and unnecessary shootings, while preserving citizens’
ability to possess safely stored firearms. And as with the ban, the
Council debated the trigger-lock requirement extensively and carefully
considered opposing viewpoints. E.g., Afternoon Council Sess. Tr., May
18, 1976, at 3133; Evening Council Sess. Tr., Jun. 15, 1976, at 33-34.
Only then did it enact a trigger-lock requirement based on the
predictive judgment that it would save lives. See supra page 6.

That conclusion is confirmed by subsequent studies. In
1991 the U.S. General Accounting Office found that 8% of accidental
shooting deaths resulted from shots fired by children under the age of
six, which could have been prevented by child-proof safety locks. U.S.
Gen Accounting Office, Accidental Shootings: Many Deaths and Injuries Caused by Firearms Could
Be Prevented 17-19 (1991), http://161.203.16.4/d20t9/143619.pdf.
Nor are adults immune from the kind of accidental shootings
that send 15,000 people per year to hospital emergency rooms. Karen D.
Gotsch et al., CDC Surveillance Summary No. SS-2, Surveillance for Fatal and Nonfatal Firearm-Related Injuries—United
States 1993-1998 2 (Apr. 13, 2001), http://www.cdc.gov/mmwr/pdf/ss/ss5002.pdf.

Respondent does not argue, and the majority below did not
find, that it is unconstitutional for the District to require trigger
locks on guns under normal circumstances. C.A. Br. 59; PA55a. Rather,
respondent’s argument—which the panel embraced as a corollary of its
invalidation of the handgun ban—is that the trigger-lock requirement
is unconstitutional because it does not specifically contain a
self-defense exception. According to respondent, even if he lawfully
possessed a handgun, the District would prohibit him from unlocking it
to defend himself against a sudden intruder in his home. If respondent
were correct, the District agrees that the law would be unreasonable.

Respondent is wrong. Such an exception is fairly implied
in the trigger lock requirement, just as it is in many of the
District’s other laws. See, e.g., United States v. Bailey, 444 U.S.
394, 410-11 (1980) (noting existence of duress and necessity defenses in
common law); Griffin v. United States, 447 A.2d 776, 777 (D.C. 1982)
(recognizing the necessity defense in criminal cases). As Councilmember
Wilson noted, “it would have to be a very irresponsible and
unintelligent judge” who would punish a person for unlocking and using
a gun to defend herself against a rapist. Evening Council Sess. Tr.
26:22-28:8, Jun. 15, 1976.

This Court should not accept respondent’s invitation to
create an unnecessary constitutional question. Federal courts should
construe statutes to avoid serious constitutional problems unless doing
so would be “plainly contrary” to the intent of the legislature. Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. &
Constr. Trades Council, 485 U.S. 568, 575 (1988). Furthermore, the District’s courts have not yet
interpreted section 7-2507.02, and local courts normally should have the
first opportunity “to avoid constitutional infirmities.” New York v. Ferber, 458 U.S. 747,
768 (1982).

Moreover, respondent’s assertion that the law might
have unconstitutional consequences under some narrow and hypothetical
circumstances is insufficient to render it wholly invalid in this facial
challenge. The law may be struck down only if there is “no set of
circumstances” under which it would be constitutional, United States v.
Salerno, 481 U.S. 739, 745 (1987), a burden that respondent cannot meet.

In any event, even if the lack of a specifically
enumerated self-defense exception were enough to render the trigger-lock
requirement unconstitutional, the proper remedy would be for this Court
to disapprove only that limited application of the trigger-lock
requirement and leave the remainder of the District’s laws intact. Ayotte v. Planned Parenthood,
546 U.S. 320, 328-30 (2006).

3. The Licensing Requirement Does No More Than Properly
Limit Those Who May Carry Handguns.

As an additional corollary to its holding on the handgun
ban, the majority invalidated D.C. Code 58 § 22-4504(a), which requires a license to carry
concealable weapons in the District, seemingly on the theory that it
eliminates respondent’s right to use handguns for self-defense in his
home. However, licensing laws ensure that only law-abiding, competent
individuals have access to dangerous weapons. The majority recognized
that the Second Amendment permits governments to deny firearms to felons
and the insane and to test for firearm proficiency and responsibility.
PA52a; see Lewis, 445 U.S. at 65 n.8 (felons). Such laws legitimately
“promote the government’s interest in public safety” and are
“consistent with a ‘well regulated militia.’” PA52a.

Nonetheless, the majority concluded that section
22-4504(a) functions as a complete ban on using handguns for
self-defense at home because one cannot obtain a license for a handgun.
PA54a-55a. But if the handgun ban is struck down and respondent
registers a handgun, he could obtain a license, assuming he is not
otherwise disqualified. Once he did, nothing in District law would
prevent him from “carrying” his gun in his home when needed for
self-defense.

* * *

The Second Amendment was not intended to tie the hands of
government in providing for public safety. Reasonable regulations of
firearms have been commonplace since the founding of the Republic.
Consistent with this tradition, the Council enacted guncontrol
legislation tailored to the unique problems presented by the
District’s urban environment. The contrary holdings of the court of
appeals were premised upon reasoning with no basis in law or logic. This
Court should restore the District’s laws.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted,

THOMAS C. GOLDSTEIN 

CHRISTOPHER M. EGLESON

Akin, Gump, Strauss, Hauer & Feld LLP 

1333 New Hampshire Ave., NW 

Washington, DC 20036

WALTER DELLINGER 

MATTHEW M. SHORS 

MARK S. DAVIES 

GEOFFREY
M. WYATT

LINDA SINGER

Attorney General for the District of Columbia

ALAN B. MORRISON

Special Counsel to the Attorney General

TODD S. KIM

Solicitor General, Counsel of record

DONNA M. MURASKY

Deputy Solicitor General

LUTZ ALEXANDER PRAGER

Office of the Attorney General for the District of Columbia



Tel. (202)
724-6609

JANUARY 4, 2008

1 Prior to the drafting of the Second Amendment, twelve
of the thirteen original colonies and Vermont had enacted legislation
regulating their state militia along similar lines. See An Act for
forming, regulating, and conducting the military Force of this State
(1786) (Connecticut) [hereinafter Connecticut Militia Law, with
subsequent citations similarly abbreviated]; Act for Establishing a
Militia, 1785 Laws of Delaware 57 (June 4, 1785); Act for Regulating the
Militia of the State, and for Repealing the Several Laws Heretofore Made
for That Purpose, 1786 Georgia Session Laws (Aug. 15, 1786); Act to
Regulate the Militia, 1777 Maryland Laws Chap. XVII (June 16, 1777); Act
of Nov. 3, 1783, 1783 Maryland Laws Chap. I; Act of Mar. 10, 1785, 1785
Mass. Acts 1; Act of June 24, 1786, 1786 N.H. Laws 1; Act of Jan. 8,
1781, 1781 N.J. Laws, Chap. CCXLII; Act to Regulate the Militia of New
York, 1786 N.Y. Laws 1 (Apr. 4, 1786); Act for Establishing a Militia,
N.C. Sess. Laws, Chap. XXII (Nov. 18, 1786); Act for the Regulation of
the Militia, 1780 Pa. Laws 1 (Mar. 20, 1780); Act for the Regulation of
the Militia, 1784 S.C. Acts 68 (1784); Act Regulating the Militia, 1787
Vt. Acts & Resolves 1 (Mar. 8, 1787); Act of Oct. 17, 1785, 1785 Va.
Acts, Chap. I.

2 Congress’s power under the Militia Clauses to “organiz[e]”
the militias buttresses the point that the Second Amendment applies to
participants in organized military entities. Since 1903, the militia has
consisted of two parts, the National Guard and an “unorganized
militia” including all able-bodied males, and some females, of certain
ages. Perpich v. Dep’t of Defense, 496 U.S. 334, 341-46 (1990); 10
U.S.C. § 311. The unorganized militia has no duties and receives no
training, discipline, or supervision by state-appointed officers. Id.;
see also D.C. Code § 49-401 (District militia law). If language is to
have meaning, membership in an unorganized militia is not membership in
a “well regulated” militia. Because he is sixty-six (PA120a),
respondent is not a member of any statutory militia.

3 Some read the “free State” language to mean that
the Amendment was intended to ensure that people could rise up outside
the context of any governmental organization against a tyrannical
federal army in order to be “free.” Fear of federal abuse animated
some opponents of the Constitution, but construing the Second Amendment
as a right to rebel is inconsistent with the Treason Clause and the
Militia Clauses, which specifically authorize the use of militias to
“suppress Insurrections.” The Framers of this “more perfect
Union” did not include the Second Amendment to “undo [their] hard
work at Philadelphia.” Paul Finkelman, “A Well Regulated Militia”: The
Second Amendment in Historical Perspective, 76 Chi.-Kent L. Rev. 195,
222 (2000). The reference to “State” in the Amendment is
to a governmental unit, as elsewhere in the text of the Constitution,
including its amendments. It was also common in that era for
legislatures to declare the need for a militia to secure a “free
government,” “the Commonwealth,” or a “free State.” See
Delaware Militia Law; Maryland Militia Law; Virginia Militia Law.

4 As the majority noted, this Court has on several
occasions referred to the Second Amendment in passing when construing
other constitutional provisions and statutes. PA37a-39a. The
District’s position is fully consistent with the dicta cited to the
effect that the Amendment protects a “right of the people.” The
dicta do not speak to the nature of the right.

5 The Virginia convention’s concerns with arms for the
militia and the perceived threat from a standing army were mirrored at
the North Carolina and New York conventions, which suggested similarly
worded amendatory language. 4 id. at 242-47; The Bill of Rights: A
Documentary History 912 (Bernard Schwartz ed., 1971).

6 The Senate defeated a proposal that would have amended
the Militia Clauses to make explicit that states could not only arm but
also regulate and discipline their militias if Congress failed to do so.
2 Schwartz, supra, at 1151-1153. That was one of twenty unsuccessful
amendments offered by Virginia’s two Anti-Federalist senators. Id. at
1151-53, 1186-87. Respondent has argued that this proposal shows that
the Second Amendment was not directed at ensuring the availability of
arms for the militia; otherwise the two senators would have considered
its inclusion unnecessary. Whatever Virginia’s senators may have
contemplated, their proposal went much farther than the Second
Amendment. It would not only have revised the body of the Constitution,
which the Federalists opposed doing, but also have provoked disputes
about whether Congress had regulated and disciplined the militias so
insufficiently as to warrant state intervention. The Senate may also
have concluded that the Second Amendment made the minority’s proposal
redundant.

7 New Hampshire’s 1783 constitution exempted persons
“conscientiously scrupulous of bearing arms” for the common defense
from being “compelled thereto” but had no other provision on arms.
Id. at 183. Georgia’s constitution directed that each county with men
“liable to bear arms” should form battalions or companies. Id. New
Jersey’s and South Carolina’s constitutions did not mention either
arms or militias. Connecticut and Rhode Island had no constitutions.

8 Vermont was not yet a state, but its 1777 and 1786
declarations of rights had similar language. Cogan, supra, at 184-85.

9 Although this case does not present the question of
incorporation, there is no reason to think that a right to possess guns
for personal use is a “principle of justice so rooted in the
traditions and conscience of our people as to be ranked as
fundamental” and “implicit in the concept of ordered liberty.”
Palko v. Connecticut, 302 U.S. 319, 325 (1937). Moreover, incorporation
against the states would be curious since the Second Amendment was
enacted to protect state prerogatives.

10 See, e.g., State v. Cole, 665 N.W.2d 328, 336-37
(Wisc.
2003); Robertson v. Denver, 874 P.2d 325, 328 & nn.15-16 (Colo.
1994); Arnold v. Cleveland, 616 N.E.2d 163, 172-73 (Ohio 1993);
State v. LaChapelle, 451 N.W.2d 689, 690-91 (Neb. 1990); State v. Hamlin, 497 So.
2d 1369, 1371 (La. 1986); State v. McAdams, 714 P.2d 1236, 1237-38 (Wyo. 1986); Kalodimos v. Morton
Grove, 470 N.E.2d 266, 273 (Ill. 1984).

11 Heightened scrutiny might be appropriate if
Congress overrode the explicit command of the Second Amendment by
barring a member of a well-regulated militia from possessing a weapon
required to meet militia obligations. The asserted right to own and use
a gun for private purposes is, however, not a fundamental right, see
supra note 9, and individuals who wish to own and use guns for their own
purposes are not a suspect class, see Lewis v. United States, 445
U.S. 55, 65 n.8 (1980); United States v. Carolene Products Co., 304
U.S. 144, 152 n.4 (1938). They have no difficulty in protecting their
interests in political arenas.

12 E.g., Chicago Mun. Code §§ 8-20-040, 8-20-050(c);
Legal Community Against Violence, Regulating Guns in America: An
Evaluation and Comparative Analysis of Federal, State and Selected Local
Gun Laws (2006), http://www.lcav.org/library/reports_analyses/regulating_guns.asp; Wendy Cukier &
Victor W. Sidel, The Global Gun Epidemic: From Saturday Night Specials
to AK-47s 144 (2006).

13 The majority independently erred in its determination
of the proper relief to be accorded respondent. Finding no disputed
issue of material fact, it ordered that summary judgment be entered in
favor of respondent. PA55a. The facts it found relevant depended,
however, on its mistaken adoption of a per se rule. If it had properly
considered the challenged laws’ reasonableness, it should have
affirmed the dismissal of the complaint given the facts as found by the
Council, as confirmed by subsequent studies. At a minimum it should have
remanded for further proceedings to allow the parties and the district
court to address reasonableness in the first instance. In any event, the
record is sufficient for this Court to order entry of judgment for the
District.