Parker v. District of Columbia

judg- grant summary voluntarily left We affirm Mayers “Ms. eluded that ment favor LHSFNA. with LHSFNA.” employment her reaching this conclu- at 61. F.Supp.2d So ordered. the letter relied on sion, court district job, her new applying Mayers sent leaving “her reason for

which stated Id. The was ‘advancement.’”

LHSFNA that “notwith- also ruled court

district in her res- [Mayers’s] contention

standing required her that LHSFNA letter

ignation PARKER, al., Appellants Shelly her et despite advice tasks perform duty, the light on placed that she be doctor no accommoda- such shows evidence and Adrian OF COLUMBIA DISTRICT requested Ms. specifically tion was Mayor Fenty, of the District M. resignation letter But the Mayers.” Id. Columbia, Appellees. evidence, the dis- qualifies as plainly ap- against of it weighing trict court’s No. 04-7041. summary no place had plication letter Appeals, United States Court Arrington v. See

judgment proceedings. Circuit. District Columbia States, 473 F.3d (D.C.Cir.2006). Argued Dec. 2006.

Nonetheless, the district court Decided March Mayers’s con correctly concluded claim cannot survive discharge

structive yet have not had

summary judgment. We whether, Morgan, say after

occasion (like discharge claims hostile

constructive claims) by “very their

work environment conduct,” repeated involvef]

nature continuing violations

are amenable thus 115, 122 536 U.S. at

analysis. Morgan, do, they Assuming that Mor

S.Ct. 2061. May- limiting principle bars

gan’s second Mayers Morgan requires that

ers’s claim. offending act within the statuto

show one recently

ry and as this court noted period, discharge “must claims constructive n inten

predicated showing on a either discrimination, or

tional retaliation.” Car Univ., Washington George

ter v. (internal (D.C.Cir.2004) citation

omitted). Mayers failed to Because has act of discrimination or

identify single 180-day her period,

retaliation within discharge claim as mat

constructive fails

ter of law. appel- cause for argued

Alan Gura Robert him on the briefs were lants. With Neily, III. Levy and M. A. Clark General, Abbott, Attor- Attorney Greg Texas, R. ney Office of State of General’s Cruz, General, Troy King, Ted Solicitor General, Attorney General’s Of- Attorney Beebe, Alabama, At- of of Mike fice State General, torney Attorney General’s Office Suthers, Arkansas, of John of the State W. General, Attorney Attorney General’s Of- Colorado, of Charles J. fice of the State Crist, Jr., General, Attorney Attorney Florida, of the of General’s Office State General, Baker, At- Attorney E. Thurbert of torney Office of the State General’s Cox, Attorney Georgia, Michael A. Gener- al, of the Attorney General’s Office State Hatch, Michigan, Attorney Gener- of Mike al, Attorney General’s of the State Office Minnesota, Bruning, Attorney of Gen- Jon eral, Attorney General’s Office State Nebraska, Wayne Stenehjem, Attorney of General, Attorney Office of the General’s Dakota, Petro, Attor- State of North Jim General, ney Attorney Office of General’s Shurtleff, Ohio, At- Mark L. the State General, torney Attorney General’s Office Crank, Utah, and Patrick of the State J. General, Attorney Attorney General’s Of- Wyoming, were on the fice State Texas, et. brief for amici curiae States in support appellants. al. Polsby B. Daniel D.

Don Kates and for amici curiae Professors on brief Bieber, organization Frederick et al. and amici curiae Amendment Founda- tion, et al. Bijan on the

Stefan Tahmassebi was Congress of Racial brief for amicus curiae Before: support appellants Inc. HENDERSON and Equality, GRIFFITH, Judges, Circuit seeking reversal. SILBERMAN, Senior Circuit Judge. Ferrara was on the brief for

Peter J. Rights Union amicus curiae American Civil Opinion for the Court filed Senior support appellants. Judge Circuit SILBERMAN. Dowlut was on the brief for ami- Robert Dissenting opinion filed Circuit Rifle Association Civil cus curiae National Judge HENDERSON. support Rights appel- Defense Fund SILBERMAN, Judge. Senior Circuit seeking reversal. lants Appellants contest district court’s Kim, General, Office of Todd S. Solicitor of complaint alleging dismissal their Attorney the District of General for Co- gun District of Columbia’s control laws lumbia, appellees. for argued the cause rights. violate their Second Amendment him on the brief were Robert J. With The court held that the Second Amend- General, Attorney Edward E. Spagnoletti, (“A Militia, regulated being ment well nec- General, Schwab, Deputy Solicitor State, essary security of a free Prager, Assistant Attor- Lutz Alexander keep Arms, to and bear ney General. infringed”) shall not be not does bestow McGill, se, on the brief pro Ernest any rights except, on perhaps, individuals support for amicus curiae Ernest McGill when an in an organized individual serves appellees. of today’s militia such as National Guard. General, Attorney Reilly, Thomas F. At- We reverse.

torney General’s of Commonwealth Office Massachusetts, Kaplan,

of S. Assis- Glenn I General, Curran, Attorney Joseph tant J. District, Appellants, six residents of the Jr., General, Attorney Attorney General’s 7-2502.02(a)(4), § challenge D.C.Code Maryland, Zulima Office of the State of V. generally registration of which bars Farber, General, Attorney Attorney Gen- (with exception for retired handguns Jersey, Office of the of New eral’s State 22-4504, officers); § police D.C.Code D.C. on the brief for amici curiae Com- prohibits carrying pistol a without a which Massachusetts, sup- et al. in monwealth license, would provision insofar as port appellees. Hogrogian, John Attor- prevent registrant moving gun a a ney, Corporation City Counsel’s Office of from one room to another within his or her Solomon, York, of New and Benna Ruth 7-2507.02, home; requir- § and D.C.Code Counsel, Deputy Corporation Office ing lawfully that all owned firearms be Corporation City Counsel of the of Chica- and disassembled or bound kept unloaded appearances. go, entered Shelly device. by trigger a lock or similar Palmer, Gossett, Parker, Ambeau, Tracey Tom G. Frey, Andrew L. David M. Chou, City Attorney, George Lyon possess Y. want to hand- Danny Deputy City in their homes for self- City Attorney guns respective Office of the Francisco, reg- a and John A. defense. Gillian St. Lawrence owns County San Valentine, shotgun, wishes to it as- were on the brief for amici curi- istered but trigger unhindered a lock Brady ae The Center to Prevent Gun Vio- sembled and Heller, lence, Finally, Dick appellees. al. in Eric or similar device. support et special police a Mogilnicki appearance. entered an who is District Columbia J. injury. Navegar III a carry handgun a on an Article involved permitted officer challenge by gun Federal Judicial manu- pre-enforcement at the duty guard as a home. Center, possess one his provisions to certain of the Vio- wishes facturer regis- denied a for and was applied Heller Enforcement lent Crime Control and Law handgun. to own tration certificate manufac- prohibited Act of which District, refusing request, explicitly his (and as- possession) ture semiautomatic 7-2502.02(a)(4). on.D.C.Code relied weapons. We held then that sault products manufacturers whose the statute claim a appellants Essentially, the standing challenge had listed eo nomine they describe as “function- possess what question the effect of the law because firearms,” they mean ones that by which al out individual single used the statute was “readily accessible could be necessary” purveyors prosecution. for self-de- Id. at effectively when firearms asserting However, They home. are fense manufacturers whose outside their carry weapons such solely by described their products were they challenging Dis- are homes. Nor pre-enforcement had no characteristics require regis- authority per se to trict’s standing prosecution because the threat tration of firearms. many among (presumably) was shared fit the gun products manufacturers whose in- declaratory and sought

Appellants and, moreover, statutory description, to junctive pursuant 28 U.S.C. relief 1983, descriptive por- not clear how these 2201, was §§ 42 but U.S.C. Id. mo- tions of the statute would be enforced. granted District’s court below grounds on the at tion to dismiss Amendment, most, protects an Second at then, In “factor ... Navegar, most arms for service individual’s to “bear analysis” in stat- significant our was “the (The not refer to in the Militia.” court did particular prod- ute’s own identification Amend- “keep” the word in the Second only by appellants” ucts manufactured be-

ment.) “Militia,” And, by the court con- priority” that indicated a for “special cause cluded the Amendment referred preventing specified parties engaging a Na- organized military body —such Ex- particular type in a of conduct. Id. tional unit. Guard tending Navegar’s logic Seegars, we Seegars plaintiffs required said the II singled show that the District had them proceedings After the before prosecution, out for as had been the case Seegars v. judge, district we decided Gon with at least one of the manufacturer zales, (D.C.Cir.2005). 396 F.3d 1248 We plaintiffs Navegar. Seegars in Since plaintiffs bringing pre-enforce held that plaintiffs nothing could show more than a challenge gun ment to the District’s laws general prosecution by threat of the Dis- and, yet injury-in-fact had not suffered an trict, injury we held their feared insuffi- therefore, they lacked constitutional stand ciently III support imminent Article in ing. Although plaintiffs expressed an standing. at 1255-56. gun tention to violate the District’s control recognized Seegars in that our anal- We laws, prosecution imminent. We ysis Navegar was in tension with the thought by prior ourselves bound our deci Supreme pre-en- Court’s treatment of a States, in Navegar, sion Inc. v. 103 United challenge forcement to a criminal statute (D.C.Cir.1997), F.3d 994 to conclude that allegedly threatened constitutional general prosecute the District’s threat gun rights. (citing violations of did not constitute See id. Babbitt v. United its laws Union, Booksellers, Farm Nat’l U.S. Workers and American Workers (1979)). 60 L.Ed.2d 895 .Supreme S.Ct. Court took a far more relaxed Workers, Supreme Farm on pre-enforcement stance challenges than subject pre-enforcement addressed Navegar Seegars permit. Neverthe- challenges general terms: less, unless and until this court en banc plaintiff alleged has an inten-

When precedents, overrules these recent we engage tion to in a course of conduct just must be faithful to Seegars as the arguably affected with constitutional majority Seegars-was faithful to Nave- interest, statute, by but proscribed and gar. prosecu- there exists a credible threat of Applying Navegar-Seegars to the stand- thereunder, tion he “should not be re- case, ing question in this obliged we are quired undergo to await and a criminal allegation look for an that appellants here prosecution seeking as the sole means of singled uniquely targeted have been out or relief.” government prosecution. the D.C. (quoting Doe U.S. made; allegation No such has been with Bolton, v. 93 S.Ct. exception, appellants one in a posi- stand (1973)). unqualified L.Ed.2d 201 Seegars tion almost identical to the plain- Farm language of United Workers would tiffs. Appellants attempt distinguish encompass seem to the claims raised their situation from that Seegars Seegars plaintiffs, as well as appel- plaintiffs by pointing to “actual” and “spe- Appellants’ lants here. assertions of Arti- threats, cific” Appellants’ lodged Br. at standing cle III find in the support also against appellants by during D.C. Supreme Virginia Court’s decision course of the district court litigation. But Ass’n,

American Booksellers this is insufficient. None of the state- (1988), 98 L.Ed.2d 782 which by appellants expresses ments cited a a pre-enforcement challenge allowed to a “special priority”'for preventing ap- these Virginia criminalizing display statute laws, pellants violating gun from or a types sexually explicit of certain materi- particular in punishing interest them for case, al In purposes. for commercial that Rather, having ap- done so. the District plaintiffs the Court held it sufficient for to pears expressing ubiqui- to be a sentiment allege “an actual and well-founded fear governments among tous stable the world against the law will be' enforced over, wit, punished. to scofflaws will be them,” id. at 108 S.Ct. without noteworthy The distinction in this any additional chal- requirement appel- case—a mentioned in lenged single particular plain- statute out distinction complaint pressed by tiffs name.1 In both United Farm lants’ them on course, ing injury-in-fact, 1. Of American Booksellers can be dis- we note the statement of tinguished Navegar, Seegars, and the dissenting colleague Seegars: our "I know case, present ground on that the constitu- hierarchy Rights protections of no of Bill of challenge implicated tional at issue there standing analysis.” that dictates different (as Second) opposed First Amendment. J., (Sentelle, dissenting). F.3d at 1257 The American Booksellers Court was con- Seegars majority, although it felt constrained Virginia's might cerned that statute chill result, by Navegar tacitly to reach a different any speech prosecution taking without ever agreed Judge with Sentelle's assessment that place, thereby 484 U.S. at injury-in-fact requirement ap- should creating wrong remedy pre-en- a without if plied uniformly over the First and Second standing forcement were denied. But de- (and presumably other con- Amendments all ciding privilege whether to one to amendment stitutionally protected rights). Id. at 1254. the U.S. Constitution over another in assess- argument, counsel for At oral ap- Heller has appellant appeal—is not registration maintained that we should denied a District and been plied for fact handgun, licensing standing a not for own a this as a case view certificate gun The denial Seegars. registra firearm present purposes because D.C.’s inju- constitutes significant; complete prohibi license to a system tion amounts prospec- District’s ry independent ownership. The District handgun on tion laws, and an gun of its enforcement tive appellants’ analyze we must argues that stringent requirements injury to which exclusively pre-en- under our standing standing under Nave- pre-enforcement for Seegars and Nave- precedents, forcement apply. not Since Seegars would gar and disagree on counts. gar. both We (prohibition against § 22^4504 D.C.Code prohibit hand completely District does license) a carrying pistol without § 7- registration. See D.C.Code gun (disassembly/trig- § 7-2507.02 D.C.Code 2502.02(a)(4) (allowing pis certificates for would amount requirement) ger lock prior already registered the District tols Heller on the certificate further conditions 7-2502.02(b) (exclud 1976); D.C.Code desires, standing pursue Heller’s Metropoli police officers of the ing retired other these license denial would subsume from the ban on Department tan Police claims too. Had Heller been pistol registration). have proposition. a new We This is not officer, Dis presumably the police retired permit a license or consistently treated registration him a granted trict would or federal ad pursuant to a state denial if be true certificate. The same would inju Article III as an ministrative scheme long attempted register had Heller F.C.C., See, 154 F.3d ry. e.g., Cassell v. gun, opposed handgun. to a (D.C.Cir.1998) li of (reviewing denial event, rights Heller has invoked his under private land application operate cense challenge the the Second Amendment to I.C.C., service); radio Wilkett v. mobile his statutory classifications used bar (D.C.Cir.1983) (reviewing denial F.2d 861 law, ownership handgun of a under D.C. trucking li application expanded application formal process and the cense); City also see of Bedford denial, routine, injury makes the however (D.C.Cir. F.E.R.C., 1164, 1168 interest alleged to Heller’s constitutional 1983) pre of a (describing wrongful denial particular. concrete and He is not assert injury as an liminary hydroelectric permit only a ing injury that his threatened review). injured warranting The interests claiming only gen a prosecution, nor is he may licensing adverse determination handgun ownership; he is eral law, at common protected be interests asserting registration to a certifi they may by statute. And of be created cate, the denial of which is his distinct course, a can also trench licensing decision injury. interests, upon constitutionally protected Ninth has re- We note that the Circuit see, e.g., Props. P’ship Ltd. v. Dist. Intown cently dealt with a Second Amendment Columbia, F.3d 874 District 198 of extensively analyzing claim first (D.C.Cir.1999) (reviewing District Co pro- that it does not provision, determining building permit lumbia’s under denial of a then, right, an individual vide Clause); Psy Bd. Takings Berger v. then, concluding plaintiff that the lacked (D.C.Cir. Exam’rs, chologist F.2d 1056 521 standing challenge a California statute 1975) (reviewing District of Columbia’s de use, and trans- restricting possession, practice psychology nial of a license v. weapons. fer of assault See Silveira Clause), under which will the Due Process 1052, & n. 18 Lockyer, 312 F.3d give injury. also III rise to Article Cir.2003). (9th ap suggest Court did not mean to a return to think such an We doctrinally quite “legal right” unsound. the old theory standing proach has made clear that when Supreme rejected in Processing Association Data considering plaintiff has Article whether Organizations, Inc. v. Camp, Service standing, III a federal court must assume 150, 153-54, U.S. 90 S.Ct. 25 L.Ed.2d legal the merits of his or her arguendo (1970), Warth, because it cited inter Seldin, v. claim. See Warth alia, precedent as for the sentence which 501-02, 45 L.Ed.2d 343 included in- phrase “legally protected (1975) allegations factual (assuming Lujan, terest.” 504 U.S. at 112 S.Ct. theory purposes legal complaint Rather, cognizable 2130. interest repeatedly standing analysis). We which the Court referred would distin- See recognized proposition. Wauke guish, pick example, one a desire to (D.C.Cir. E.P.A., 228, 235 sha v. 320 F.3d aspects observe certain of the environment 2003); Employees, Am. Fed’n Gov’t generalized from a wish to see the Consti- Pierce, v. AFL-CIO Indeed, obeyed. tution and in laws Judi- (D.C.Cir.1982). “Indeed, reviewing in Watch, Senate, cial Inc. v. States standing the court must be care question, (D.C.Cir.2005), 432 F.3d 359 Judge on the questions ful not to decide the concurring Williams wrote an extensive against plaintiff, merits for or (not opinion majority inconsistent with the that on the merits must therefore assume opinion) persuasively in which he explains plaintiffs would be successful their interest,” “legally protected that the term (cit Waukesha, claims.” 320 F.3d at 235 in Lujan, as used could not have been 2197). Warth, ing U.S. at 95 S.Ct. general intended to deviate from Warth’s when, here, This is no less true proposition that we assume the merits scope merits involve the of a constitutional evaluating standing. when Id. at 363-66. protection. Claybrook, say, quite on to we went Still, always we have not been so clear “if inconsistently, plaintiffs claim point. Although recognized on this we law, legally has no foundation he has no (D.C.Cir. Slater, Claybrook v. 111 F.3d 904 protected standing interest and thus no 1997), necessary plain that it for a was Claybrook, sue.” F.3d 907. We tiff to demonstrate that he or she would standing, plaintiff concluded that lacked prevail on the merits in order to have however, government agency because the III standing, Article the rest our discus in that case had unfettered discretion to sion seems somewhat in tension with that did, take the action it and therefore there recognize that in Lu proposition. We did apply.” “no Id. at Thus was law jan Wildlife, Defenders of Claybrook actually decision 560-61, 119 L.Ed.2d 351 separate jurisdictional on based. (1992), Supreme when the Court used the Adminis- ground reviewability under the — an phrase “legally protected interest” as courts trative Procedure Act-—-and federal injury-in-fact, element of it made clear it jurisdic- may any ground deny choose referring only “cognizable to a inter tion, e.g., standing, prudential Article III Claybrook, est.” 111 F.3d at 906-07. The subject jurisdiction. standing, or matter Lujan plaintiffs in concluded that Watch, 432 F.3d at 366 See Judicial in “cognizable observing had a interest” (Williams, J., concurring) (noting considering species animal without wheth Claybrook classify standing hard to as a legal right to so. plaintiffs er the had a do hierarchy no which 562-63, opinion). There is (citing Lujan, Id. 504 U.S. at 2130). III stand- Lujan obliges a court to decide Article plain We think civic, jurisdictional guarantees a rather than an ques- other fairs and ing issues before individual, words, Papandreou, right. In re 139 F.3d In other accord- tions. (D.C.Cir.1998). Therefore, District, we do ing operative to the clause is propo- clause, to stand Claybrook just by not read prefatory limited Warth, sition, that we must evalu- contra explicitly both an but instead clauses share appellants’ vel non of ate existence civic character. The District claims that standing claim as a Second Amendment “protects private the Second Amendment question.2 possession weapons only in connection performance part with of civic duties as sum,

In we conclude that Heller has well-regulated organized citizens militia challenge to raise his standing security for the of a free state.” Individu- specific provisions gun District’s may als to enforce the able control laws. right, only but if the law in Ill question impair participation “will their common law defense and enforcement noted, the As we Second Amendment when called to serve in the militia.” But provides: regulat- because the District reads “a well Militia, necessary A regulated being well signify only organized ed Militia” State, security right of a free founding militias of the era—institutions keep and bear Arms implicitly argues that the District no are infringed. shall not be longer today in existence Const, —invocation amend. II. the Second Amendment is condi- provision’s second comma divides upon tioned service a defunct institution. clauses; into two the Amendment the first think, Tellingly, we the District did not prefatory, and the operative. second law, suggest any, what sort of if would argument Appellants’ is focused on their violate the today Second Amendment —in reading opera- of the Second Amendment’s fact, argument, at oral appellees’ counsel According tive clause. to appellants, the that it asserted would be constitutional for language guarantees Amendment’s flat out outright. the District to ban all firearms individual “to and bear short, position we take the District’s Appellants prefa- Arms.” concede that the be that the Second Amendment is dead tory expresses purpose, clause a civic but letter. argue purpose, may that this while it in- form meaning ambiguous of an term We are told the District “Arms,” like qualify does not Second Amendment was written in re- guaranteed by operative portion of the sponse to fears that the new gov- federal

Amendment. ernment would disarm the state militias preventing from bearing men arms while argues District of Columbia that the service, in actual by preventing prefatory clause declares Amend- keeping them from arms at home in only purpose prepa- ment’s shield the state —to ration for such service. Thus the militias from federal encroachment —and Amend- clause, operative ment should be understood to check even when read feder- isolation, speaks solely military power regulate af- al firearms when F.D.I.C., not, 2. Admittedly, Taylor ring). Whether that was correct or we (D.C.Cir.1997), situation, unique we observed that the concluded that even in that here, requirement standing present causation could co we had discretion decide incide standing with the causal element in a cause of the case on the merits or on J., (Rogers, grounds. action. But id. at 770 concur Id. at 767-68. cf. right at the abo- theme. All versions model legislation directed this federal militias, (1) Amend- because the lition of state They acknowledge share two traits: preserva- concern was the exclusive ment’s could, theoretically, individuals raise Sec- blush, At entities. first tion those against ond Amendment claims the federal strange that the able law- passing seems (2) government,- but define the Second Congress the First yers statesmen purely provision Amendment as a civic Madison) (including would have ex- James no protection private offers a concern for state militias pressed sole ownership use and of arms. language of the Second Amend- with Surely theory there was a more direct The District advances this sort of ment. locution, “Congress shall make no such as ability suggests of individuals disarming the state militias” or “States law to raise Second Amendment serves claims militia.” right well-regulated have a to a distinguish pure it from the collective But right model. when seen terms argument The District’s strained as —as view. hardly practical consequences, it seems to us—is isolated its the fact that debate, there In the Amendment Second standing individuals have invoke camps. are two On one side are the collec- is, view, Second Amendment our a dis- argue that right tive theorists who tinction without a difference. But cf. right protects Amendment Emerson, United States v. 270 F.3d governments preserve various state (5th Cir.2001) (treating sophis- 218-21 understood, arm their militias. So right ticated collective model as distinct militant right expression amounts to an right theory). from the collective Both the federalism, govern- prohibiting the federal theo- sophisticated collective and collective denuding the of their ment from states ries assert the Second Amendment On the other side fighting armed forces. purpose was written for the exclusive argue are those who that the of the debate militias, and both theories preserving state protects right Amendment qua can deny that individuals individuals use. possess private individuals to arms for themselves of the Second Amend- avail theorists, right To these individual is true either today. point ment The latter liberty guarantees personal because, appears argue, as the District analogous pro- to the First Amendment’s existence, or, longer the “Militia” is no Fourth speech, tection of free or the argue, because the militia’s mod- as others right Amendment’s to be free from unrea- Guard, fully analogue, ern the National However, searches and seizures. sonable government, cre- equipped by the federal purport scholars entrepreneurial some ownership individual ating the indi- no need for occupy ground a middle between right vidual and collective models. its appears It to us that for all firearms. nuance, sophisticated collective theory prominent The most in-between old collective model amounts to the named developed by academics has been theory tip proble- of the hat to the giving right” model.3 “sophisticated collective individual) (because ostensibly matic text sophisticated collective label de- Amendment. several variations on the collective of the Second scribes Parker, (D.D.C.2004); J. see also Robert 3. See United States v. 362 F.3d Price, (10th Cir.2004); Diamond, v. Raymond United States Cottrol & T. Fifth (7th Cir.2003); F.3d Auxiliary Right, Yale L.J. Emerson, (5th v. States (1995). Cir.2001); Ashcroft, Seegars F.Supp.2d 380 see usdoj.gov/olc/secondamendment2.pdf; between courts are divided

The lower Ashcroft, Federal also Memorandum from John interpretations. competing these General, Attorney to All United States’ largely adopted have courts appellate (Nov. 9, 2001), in Br. Only Attorneys reprinted the Fifth model.4 right collective 26, at Opposition Amend- for the United States interpreted Second Circuit has Emerson, 907, 122 2362, 153 right.5 State protect an individual ment courts, great legal The treatises of interpretations of L.Ed.2d 184. whose appellate century the individ support are no less authorita- the nineteenth the U.S. Constitution circuits, right interpretation, ual see Silveira v. than of our sister offer tive those (9th 567, Lockyer, picture.6 And the 328 F.3d 583-85 Cir. a more balanced United 2003) (Kleinfeld, J., recently dissenting has denial Department of Justice States Emerson, banc); rehearing model. See of en 270 F.3d adopted the individual Counsel, 236, 255-59, Legal “Whether the at as does Professor Laurence Op. Off. of leading an Individual Tribe’s treatise on constitutional Second Amendment Secures (2004) http://www. prece- available at law.7 Because we have no direct Right” 1092; Blanchard, Silveira, (Ky.2006); Gillespie v. & State 776 4. 312 F.3d at 347 n. 5 v. See 693, 1165, (7th (La.2001); City Indianapolis, 185 F.3d 710 So.2d 1168 State v. Nicker son, 157, 188, 1999); (1952); Wright, v. 117 F.3d Cir. United States 126 Mont. 247 P.2d 192 1265, (11th Cir.1997); Stillwell, 862620, States 1273-74 United Stillwell v. 2001 WL at *4 273, (3d Cir.1996); 30, 2001); Rybar, v. F.3d 286 (Tenn.Ct.App. July 103 State v. 120, (4th Anderson, 122218, Pepersack, (Tenn. 47 Cir. Love v. F.3d 122 2000 WL at *7 n. 3 Hale, 1016, 1995); Williams, Jan.26, 2000); States v. 978 F.2d Crim.App. State v. (8th Cir.1992); 904, 993, v. (2006); 1019-20 United States 158 P.3d 998 Wash.2d 148 Oakes, 384, Cir.1977); (10th State, 298, 387 564 F.2d Rohrbaugh v. W.Va. 607 216 103, Warin, (6th 404, United States v. 530 F.2d 106 (2004), S.E.2d 412 at ten whereas least States, Cir.1976); 131 F.2d Cases v. United (including appellate state courts District 916, (1st Cir.1942). Columbia) endorsed collective States, right position, Sandidge The a decision in the Second see v. United District cites Circuit, Toner, 1057, (D.C.1987); 728 F.2d 115 A.2d United States v. 520 1058 Common (2d 1984), Davis, 886, holding Cir. the Second that wealth v. 343 369 Mass. N.E.2d 847, (1976); Atkinson, protects only right related to Amendment 850 In re 291 N.W.2d 396, purposes.” (Minn.1980); State, "civic District's reliance on The 398 n. 1 Harris v. 83 Toner, 404, 929, plainly wrong. (1967); this case the court In Nev. 432 P.2d 930 Burton v. Sills, only 86, 521, stated (1968); that the Second Amendment 53 N.J. 248 A.2d 526 282, 202, was not "fundamental.” Id. 128. Cassidy, re 268 A.D. 51 N.Y.S.2d opinion way question Fennell, in no addressed the (N.Y.App.Div.1944); State v. 95 requires whether 140, 231, the Second Amendment (1989); N.C.App. 382 S.E.2d possession weapon use and civic 243, City Dayton, Mosher v. 48 Ohio St.2d purposes. We are not aware of Second 540, State, (1976); 358 N.E.2d Masters directly Circuit decision that addresses (Tex.App.1983); 653 S.W.2d State v. collective versus individual nature of the Sec Vlacil, (Utah 1982); 645 P.2d see Silveira, right. ond Amendment See Grove, Village also Kalodimos v. Morton (noting at 1063 n. 11 103 Ill.2d 83 Ill.Dec. 470 N.E.2d yet and D.C. decide Circuits had nature of (1984) (stating in dicta that Second right). Second Amendment protects right). collective Emerson, 270 F.3d at 264-65. 7. See 1 Laurence Tribe, American Constitution- (3d ed.2000). appellate 6. Of the state courts that have ex al Law 902 & n. 221 Professor question, always amined the seven have held at least Tribe was not of this view. See San- Levinson, protects Embarrassing Second Amendment an indi ford Amendment, (1989) (cri- right, Hilberg vidual see v. F.W. Woolworth 99 Yale L.J. Co., (Colo.Ct.App.1988); tiquing posi- 761 P.2d Tribe’s earlier collective Commonwealth, tion). Brewer v. 206 S.W.3d argument, on the other Supreme The District’s court or the this dent —either square hand, to mean people” us with asks us to read “the provides CourD—that we turn first holding question, on the subset of individuals such as “the some of the Amendment. people the text militia” or “the who are organized service,” not engaged perhaps A e.g., individuals at “the states.” all — considering competing Emerson, by start 270 F.3d at 227. These We See meaning of the Second claims about people” of “the interpretations strained right clause: “the operative Amendment’s with the uniform simply squared cannot be Arms shall and bear people of the Bill Rights of our other construction contend Appellants infringed.” not be Indeed, Supreme provisions. clearly con- people” right that “the reading of recently endorsed a uniform has that right and templates an individual In Rights. across the Bill of people” “the necessarily implies Arms” “keep and bear Verdugo-Urquidez, States v. United The District’s ownership. and private use 108 L.Ed.2d U.S. 110 S.Ct. and bear “keep is primary argument (1990), at the specifically the Court looked sense, military in a Arms” is best read Rights’ and use of Constitution Bill operative and, consequence, the entire as a holding that the “people” the course granting be understood clause should not protect Fourth Amendment did District also right. The only a collective rights foreign of non-citizens on soil: people” right that “the argues people” seems to have been a “[T]he right pro- as to whether the ambiguous employed parts in select term of art and use of ownership civic or private tects Constitution. The Preamble de- weapons. clares that the Constitution is ordained determining whether by People “the of the and established an individual guarantee is Amendment’s Amend- States.” The Second one, right, of collective or some sort protects ment “the of the the one the draft- important word is most Arms,” and the Ninth and keep and bear the holders of the chose to describe ers certain provide Amendments Tenth That term is found people.” —“the by and rights powers are retained Fourth, Ninth, First, Second, people.” to “the See also reserved It been Amendments. has never Tenth 1; I, cl. 1. amdt. Art. While Const., provisions were de- these doubted by means exegesis textual no this of individu- signed protect the interests conclusive, people” that “the suggests it intrusion, interfer- against government als Amendment, Fourth by the protected ence, that the We also note usurpation. Amend- First and Second not dele- powers Amendment —“The Tenth ments, rights powers and to whom States the Consti- gated to the United Tenth in the Ninth and are reserved states, tution, by it to the prohibited nor Amendments, per- to a class of refers respectively, or are reserved to the states a national commu- part are sons who that the authors people” —indicates developed nity or have otherwise who capable Rights perfectly Bill of country to with this sufficient connection on people,” “the distinguishing between community. part of that be considered states,” hand, on the one and “the It un- seems Id. at reading of “the other. The natural likely Supreme that the Court would in the Second people” these, together without lumped provisions in the usage accord with elsewhere would view that the if it were of the comment Rights. Bill of Quinlan, a collec- McAffee & Michael protects Bringing J. Second Amendment Right Keep discussion certain- and Bear right. tive The Court’s Forward Text, definitively History, de- Arms: Do or Precedent ly indicates —if does regard Way?, not “the in the 75 L. Rev. we should Stand N.C. termine —that (1997). Hence, Amendment as 890 the Amendment ac- people” in the Second to a small subset of ... knowledges right keep restricted “the and somehow Arms,” meriting protection under the people” right pre-existed “the bear that the use of that same term. Amendments’ speech.” other Constitution like “the freedom of right prior Because the to arms existed sum, phrase right “the of the government, the formation of the new see intratextually in read and people,” when Baldwin, Robertson v. precedent, light Supreme Court leads us of (1897) (describ- L.Ed. right question to conclude that Bill ing origin Rights of the of is true even proposition individual. This law), English only the Second Amendment the time of the though people” “the guarantees right that “shall not be a concept was not as inclusive as founding infringed.” Cooley, Thomas in his influen- today. Robert E. people” “the See Shal- treatise, tial observed Second Early and Bear in the lope, Keep To Ams origins Amendment had in the struggle its Republic, 16 Const. Comment. 280-81 (1999). non-whites, with the Stuart monarehs in late-seven- To the extent women, teenth-century England. M. See Thomas propertyless and the were exclud- Op Cooley, The afforded to “the GeneRal PRINCIPLES Consti- protections ed from the people,” the Protection Clause of United States Of Equal The tutional Law In (Rothman Co.1981) the Fourteenth Amendment is understood AMERICA 270-72 & (1880).8 corrected that initial constitutional have shortcoming. To pre- determine what interests this also wording operative existing right protected,

The of the clause we look to the lawful, and bear right private purposes indicates for which by arms was not but of the government, created time owned and used arms. The preserved rather B. by correspondence political it. See Thomas dialogue of Indeed, England's Rights Kingdom, right, of 1689 of Bill of as a but as a realm, guaranteed Subjects, duty; subjects which are "[t]hat the for all the of the who Protestants, Defence, may arms, have for their Arms are able to bear are bound to be conditions, by times, sheriff, suitable to their as allowed ready, at all to assist the M., too, law.” 1 W. & Sess. c. 2. Here magistrates, other civil in the execution of however, created, right newly was not but preservation public the laws and the recognized part rather the common law peace. every And that which Protes- origin tradition. The ancient unquestionably possesses, tant most individ- later, England century was affirmed almost a must, ually, may, many and in cases in the aftermath the anti-Catholic Gordon collectively, point exercised is likewise a London, riots of the Recorder when clearly which I conceive to be most estab- legal city who was the foremost advisor to the by authority judicial lished decisions Bailey, as well judge as the the Old chief parliament, and ancient acts of as well as gave following opinion legality on the reason common sense. private organizations armed for defense Opinion Legality on of the London Mili- against rioters: Association, tary reprinted Foot in William majesty's The Reflections On Police 59- of His Protestant sub- Desultory Blizzard, defence, (1785). jects, to have For further examination of the arms for their own purposes, English origins, and to use them lawful Second Amendment's see seems, generally most clear and undeniable. It in- To Joyce Keep Malcolm, Lee And Bear deed, considered, (1994). to be the ancient laws Arms Silveira, 328 tyrannical government. See that arms were founding era indicate (Kleinfeld, J.); also id. see F.3d at 583-85 in self-defense lawful use kept for Emerson, (Kozinski, J., dissenting 270 F.3d at 251-55 from the at 569-70 hunting. See materials); Kasler, E. banc); Robert (collecting rehearing historical denial of en Origins (Brown, J., Ideological Shallope, at 605 Cal.Rptr.2d P.3d Amendment, Am. Hist. 69 J. Second concurring).9 Const, (1982); Pa. sec. see also Rights Bill as a at the When we look 1776) (“The of this inhabitants (Sept. whole, setting of the Amend- hunt liberty to fowl and state shall its individual nature. ment reinforces hold, they on the lands times seasonable entirely a decla- Rights Bill of was almost not enclosed therein on all other lands and the Second rights, individual ration of ....”)(cid:127) strongly in- inclusion therein Amendment’s and bear right pre-existing The it, too, protect intended to that was dicates commonplace premised on arms was right ad- liberty. The collective personal use would that individuals assumption the First imagine ask us vocates in addi private purposes, for these them states’ generis a .sui Congress situated they service would tion to whatever indi- of cherished right among catalogue The for the state. obligated perform comment. We be- liberties without vidual used arms would be private premise known lieve the canon of construction Blackstone’s accords with for self-defense we here. Just as applies a sociis noscitur thinking observation, influenced which had statutory term read an ambiguous would colonies, people’s that the in the American context, should read in of its we light natural auxiliary to the arms was right to in the Second ambiguities supposéd See William self-preservation. right of Every light in its context. Amendment of *136, *139; BlACKSTONE, COMMENTARIES Rights, ex- the Bill of provision of other (Kle Silveira, at 583-85 F.3d also see Tenth, explicitly speaks which cepting the J.); infeld, Lockyer, 23 Cal.4th Kasler pow- governmental allocation about the P.3d Cal.Rptr.2d.334, er, enjoyed by citizens rights protects (2000) (Brown, J., The concurring). The Second capacity. individual their turn, was under self-preservation, aber- inexplicable Amendment would be against to defend oneself as the stood individ- protect if it were read individuals, ration or, if abso by lawless attacks rights ual as well. throw off a necessary, to lutely resist (dis- Silveira, at 569-70 trary. See private right of self- importance 9. The banc). rehearing en senting hardly surprising when one remem- from denial defense is populace profession- of a well-armed lacked deterrent effect that most Americans The bers probability of the nine- important until the middle police surely al force more than is Levinson, & supra, at 646 century, conflict. teenth see armed in a full-out of overall success many lived in back- Americans people n. write to the Madison Thus could Territory. country such as the Northwest New York in 1788: military Notwithstanding establish- defend oneself respect to With Europe, kingdoms of the several ments oppression, some have against tyranny and public resources far as are carried as which utterly argued that the Second bear, governments are afraid will protects, even if arms irrelevant because the And it is not arms. with trust owned, no when commonly would be of use they would aid alone with certain that this the modem state. opposed to arsenal yokes. off their noted, not be able shake incidents Judge has But as Kozinski (James 46, at 299-300 No. uprising ghetto the Warsaw Federalist such as The ed., 1961). Madison) (Clinton Rossiter the con- evidence to provide rather dramatic The insists that phrase District the people’s right to “bear arms in defence “keep and bear Arms” should be read as of themselves and among the State” other purely military language, and thus indica- formulations). Thus, it hardly would civic, tive than private, of a rather guaran- (or been unusual for a writer at the time tee. obviously The term “bear Arms” is now) that, to have said an attack after on a susceptible military to a construction. But thieves, house the men set out to find it is not accurate to exclusively construe it “bearing them arms.” First, so. the word “bear” this context The heavily District relies on the use of simply a more synonym formal for “car- i.e., “bearing arms” in a objector ry,” “Beware of Greeks conscientious bearing gifts.” English Dictionary clause part and the that formed of Madison’s initial Oxford original primary Webster’s list the meaning draft of the Second Amendment. pur- support” “bear” as “to carry.” “to pose clause, of this which was later Silveira, (Kleinfeld, See at 573 F.3d dropped from text, the Amendment’s J.). Dr. Dictionary Johnson’s —which to excuse “religiously those scrupulous of Supreme Court upon often relies to ascer- arms” bearing being forced “to ren- founding-era tain the understanding of military der service in person.” The Com- see, text, e.g., Eldred v. Ashcroft, 537 U.S. plete Rights (Neil Bill Of Cogan H. 186, 199, 154 L.Ed.2d 683 ed.1997). The District argues that the (2003) The accord. first defi- three —is objector conscientious equates clause thus nitions for “bear” carry are “to aas bur- “bearing arms” with military service. The den,” “to convey carry,” carry and “to Quakers, Mennonites, pacifist and other aas mark of authority.” See Johnson’s sects that were to benefit the conscien- English AND WalkeR’s Dictionaeies Com- objector tious clause scruples against had (J.E. 1830) ed., bined Worcester [here- soldiering, but not necessarily hunting, inafter Johnson]. which, like soldiering, involved the carry- Historical usage, gleaned as from the ing of arms. ifAnd “bearing arms” only Webster’s, O.E.D. and supports the notion meant arms,” “carrying it argued, the that “bear arms” was sometimes used phrase would not have been used in the an idiom signifying the use of weaponry in objector conscientious clause because conjunction military with service. Howev Quakers were religiously scrupulous of er, these sources also confirm that carrying arms generally; was carrying usage idiomatic was not absolute. Sil arms militant purposes that for veira, (Kleinfeld, J.); 328 F.3d at 573 Em truly Friends (although abhorred many erson, 270 F.3d at 229-32. Just as it is Quakers certainly frowned on hunting as clear that phrase “to bear arms” was the wanton infliction of cruelty upon ani- in common byword use as a for soldiering mals). See Thomas A Portrai- Clakkson, era, see, founding e.g., Wills, Gary Op Quajkerism, Vol. I. That Madison’s ture Op Arms, Keep To and Bear N.Y. Rev. objector conscientious appears clause Sept. 62-73, at it is equal Books, use “bearing arms” in strictly a military ly evident from survey eigh late sense suggest does least that “bear teenth— early nineteenth-century Arms” in the Second opera- Amendment’s state provisions constitutional tive public clause includes the carrying understanding arms “bear also Arms” military for encompassed purposes. However, carrying of arms there are pri for vate purposes too many such as instances of “bear self-defense. See arms” indicat- Emerson, 270 F.3d ing private at 230 n. 29 (collecting use to conclude the draft- state provisions constitutional referring to ers intended a military sense. meaning for private includes a clause ative constitutional the state

In addition Emerson, “bear Arms.” there collected provisions is- report in the following statement theo- collective In contrast to the at the delegates dissenting by the sued tease out the efforts to rists’ extensive convention: Pennsylvania ratification “bear,” conjoined, preced- meáning to bear entirely That almost has been ing “keep” verb tradition, of themselves the defence District arms for In that neglected. States, or state, the United dismissive cursory largely their own offers a killing game purpose appears The District analysis for of the verb. unitary is a “keep and claim that bear” Of Reasons Of Dissent Address And The “keep” word that the individual term and Minority PENN- Of The Convention Of independent signifi- no given should be reprinted Constituents, To Theie SYLVANIA risi- suggestion is somewhat cance. This Complete in 8 Anti-Federalist admonishment, light District’s ble 1981). (Herbert ed., These Storing J. brief, interpreting in its earlier when Antifederalists, writing in De- dissenting “every word must have text constitutional clearly “bear using cember force, meaning; appropriate due its weaponry outside include uses arms” to unnecessarily used or ... no word was “bear may one setting e.g., — Br. at 23 Appellees’ added.” needlessly killing purpose ... arms (14 Jennison, 39 U.S. (quoting Holmes game.”10 (1840)). Pet.) 570-71, L.Ed. current three at least also note that We not read as and “bear” are “keep” if Even member) (and former one members term, told, meaning unitary we are in “bear Arms” have read Supreme than be- “bear” “keep” cannot be broader meaning to have Amendment pro- Amendment cause the Second a “Surely most soldiering: beyond mere course of arms in the the use of tects is, firearm’] ‘carries a meaning [of familiar 26-27. But this Id. at militia service. as the Constitution’s conclusion, and we assumes its proposition Arms’) Law and Black’s (‘keep and bear seriously. do not take bear, ‘wear, or ... Dictionary indicate: the District has authority cited by cloth- or in the One person carry upon ... “keep with equate “keep” attempted ... of purpose for the pocket, or in a ing phrases in used that had been up,” a term ready for offensive being armed and or, army” standing as “keep up a with in case of conflict such as action defensive Confederation, “every in the Articles v. United Muscarello person.” another regulated and keep up a well shall States, state 524 U.S. ” Wills, supra, .... See (1998) J., (Ginsburg, disciplined dis- 141 L.Ed.2d as Scalia, “keep” used C.J., argument that at 66. The Rehnquist, senting, joined keep ... J.) right of in Souter, original). in “the J., (emphasis military meaning with Arms” shares oper- we think the foregoing, Based on Rakove, The Second See Jack N. sure, conventions. have theorists collective To be Original- Stage Highest Pennsylvania dis- The correctly that the Amendment: observed (2000). ism, but speaking anyone 134-35 were not senters L. Rev. Chl-Kent is, attempt they in delegates politi- lost their dissenting were themselves—that But that Constitution, and to defeat ratification their status as does not undercut cal losers suggested their to have the clout lacked late-eighteenth-century competent users Congress, un- First sent amendments English. state delegates in other like Antifederalist up” “every used in “keep state shall Framers’ militia has faded insignifi- into keep regulated a well militia” up mocks cance.” usage, syntax, and common sense. Such parties The draw on United States v. likely outlandish views are advanced be- Miller, 83 L.Ed. plain meaning “keep” cause the strikes (1939), support differing their defi- a mortal blow the collective theo- Miller, nitions. a rare Second Amend-

ry. Turning again to Dr. Johnson’s Dic- precedent Court, ment Supreme tionary, we see that the first three defini- holding below, of which we discuss de- retain; lose,” tions of are “keep” “to not to scribed the militia in following terms: “to in custody,” preserve; have “to not to Johnson, go.” let supra, at 540. thinkWe The Militia which the States were ex- “keep” straightforward is a im- term that pected to maintain and train is set plies ownership possession of a func- contrast Troops they with which tioning weapon by private an individual for forbidden to without the consent of Emerson, 31; use. 270 F.3d at 231 & n. Congress. The sentiment of the time (Klein- Silveira, accord strongly armies; disfavored standing J.). feld, arms,” The term “bear when the common view that adequate de- isolation, viewed in might thought am- country fense of and laws could be se- biguous; military it could cast. But cured through the pri- Militia—civilians since “the people” “keep” have obvious marily, soldiers on occasion. individual private meanings, we think signification attributed to the those supposed ambigu- words resolve term Militia appears from the debates ity in the term “bear arms.” whether that purpose was exclusive. The meanings the militia purpose parties do prefatory declares the Second Amendment’s civic ^[*] parties generally agree — i.e., insuring the continuance of clause, system to “a well attribute ^[*] —and to which we now ‡ dramatically ' regulated only disagree over # ^[*] different Militia.” turn, ^[*] that ordinarily when called for service for writings of tia comprised all ble of These show defense. tion Convention, military of Colonies and acting “A plainly discipline.” body approved concert for the common the history males enough that the Mili- of citizens enrolled States, physically commentators. And and the further, legisla- capa- these men expected appear Appellants argue that the militia refer- bearing supplied arms enced themselves prefato- Amendment’s ry and of clause was the kind in “practically synonymous” common use at the with “the people” opera- referenced the time. tive clause. The District advances a much 178-79, Id. at 59 S.Ct. 816.

more limited According definition. The District claims that Miller’s histori- District, body the militia was a of adult cal account of the “Militia” supports its regulated men organized by and state law position. Miller, Yet according to the mili- as a civilian fighting force. The crucial tia included “all males physically capable distinction between the parties’ views then acting in concert the common de- goes to the Appel- nature of the militia: of for ” who were military “enrolled lants claim no organization required, was fence for discipline.” And expansive Miller’s whereas the defi- District claims a militia did nition of subject exist unless the qualitatively it was to state different militia — discipline leadership. and from the As we have al- District’s concept in accord —is ready noted, the District claims that “the with the second passed Militia Act of firelock, or of his musket to the bore May ofAct Congress.11 by the Second quan- course, proper contain cartridge to a each XXXIII, 271. Of 1 Stat. 1792, ch. good a and or with tity powder Con- ball: of the Second of the members many of First, rifle, powder- and the knapsack, shot-pouch, members of also gress were But Rights. horn, Bill of suited to the bore twenty balls had drafted which conversant they were rifle, pound a importantly, quarter a more and his of both understanding armed, common ac- appear shall so with and powder; state ratifying and First Congress out to when called provided, coutred and by “Mili- what was meant as to legislatures exercise, or into service. The sec- Amendment. in the Second

tia” added).12 (emphasis Id. exten- and specific placed Act ond Militia Act’s first note that the The reader will citizens who were on the requirements sive able-bodied is that “free requirement militia: constitute eighteen population male” between white every and ... each [t]hat it enacted Be in the militia. And enroll forty-five and citizen white male free able-bodied from the var- quite distinct enrollment therein, states, resident respective by Con- prescribed other regulations ious eighteen age be of is or shall who weaponry type which included gress, forty-five age under years, and Becom- militia must own. members except- after is herein (except as years appears in the militia ing “enrolled” ed) severally respectively and shall and one’s name providing have involved or militia, captain by the enrolled militia officer— to a local whereabouts company, officer of commanding cur- to our nation’s analogous somewhat shall such citizen whose bounds within tomen requiring young practice rent months reside, that within twelve Act. Service the Selective register under ... And of-this Act. passing after J.). (Kleinfeld, Silveira, F.3d at offi- commanding every captain such of the second light read Thus when delay ... shall without company a cer of as Act, the militia defines Militia Miller enrollment of the said notify such citizen characteristics: primary two having citizen, enrolled every so .... That a free, white, men of all able-bodied It was thereaf- notified, shall, within six months names given had their age certain who musket good a ter, himself with provide mili- eligible officers local militia belt, firelock, bayonet sufficient the District’s Contrary tia service. flints, knapsack, spare two condition view, organizational was no there therein, contain not a box pouch, with of the “Militia.” the existence precedent cartridges, suited twenty four than less pursuant provision Congress this enacted May passed on Act Militia was 11. The second 12. I, powers over Congress Section had May to its Article 1792. On power the au- have the "providing Congress for shall Act enacted a Militia "The militia: Mili- arming, to call out the thority and organizing, of the President provide ... for [t]o XXVIII, Stat. May ch. militia, governing tia." Act of disciplining, gave the President Act Militia 264. The first employed in the may as be part of them such cases of forth the Militia power to call States, reserving to the of service tribe, foreign Indian nation or invasion appointment of respectively, the states If rebellion. of internal and also cases officers, training authority the mili- of and the rebellion state wherein the of the militia discipline prescribed according tia suppress it was unable to taking place either art. sec. Congress .U.S. I., Const., Act up, the first Militia called or refused be authority to use militia gave President other states. on in the Congress enactment, went second Militia Act Id. Just as the 1792 Con- prescribe organiz- a number of rules for gress and, defined the militia broadly, ing the militia. But the militia itself was explicitly more than in founding-era its from which an organized raw material counterpart, Congress provided that a fighting Thus, force was to be created. large portion of the militia would remain Act second Militia reads: unorganized. The District has a similar enacted,

And be it further That out structure for its “Every own militia: able- of the militia enrolled as is herein direct- bodied male citizen resident within the ed, there shall be formed for each battal- Columbia, District of age years of 18 ion at one company grenadiers, least age years, under the excepting riflemen; light infantry or and that to idiots, lunatics, ... drunkards, common each division shall at there least one vagabonds, paupers, persons convicted company artillery, and one troop of crime, infamous shall be enrolled company horse: There shall be to each § the militia.” D.C.Code 49-401. artillery, captain, lieutenants, one two argues District the modifier four sergeants, corporals, gun- four six regulated” “well means that militia “[t]he ners, bombardiers, drummer, six one own; was not acting individuals on their and one fifer. one cannot one-person be a militia.” We added). Id. at (emphasis 59 S.Ct. 816 quite agree that the militia awas collective point The crucial is that the existence of body designed to act in concert. But we preceded organization its by disagree with the District that the use Congress, preceded implementa- and it “well regulated” in the constitutional text tion Congress’s organizing plan by the somehow popular turns the militia embod- states. The District’s definition of the mi- ied in the 1792 Act into a “select” militia just litia is too narrow. The militia was a semi-professional consisted of soldiers large segment population quite —not like our current National Guard. Contem- synonymous people,” with “the appel- poraneous legislation once again provides certainly lants contend—but orga- not the guidance us with in reading ambiguous “divisions, brigades, nized regiments, bat- 30; constitutional text. Op. See see also talions, companies” mentioned in the Silveira, J.). (Kleinfeld, 328 F.3d at 579-80 second Militia Act. Id. at 59 S.Ct. 816. The second Militia provides Act a de- congressional The current definition of tailed list of directions to both individuals the “Militia” original accords with usage: and states that we take as an indication of “The militia of the United States consists what the drafters of the Second Amend- of all able-bodied males at years least 17 ment contemplated as a “well regulated age and ... under years of age who recalled, Militia.” It will be the second are, or who have made declaration of Militia Act requires that eligible citizens become, intention to citizens of the United and, enroll in the militia months, within six States and of female citizens of the United arm accordingly. themselves Subsequent States who are members of the National enrollment, arming oneself became the Guard.” 10 U.S.C. 311. The statute duty first Silveira, of all then militiamen. See distinguishes “organized between the militia,” J.). (Kleinfeld, 328 F.3d at 581 which consists of the National The Act Militia, goes Guard and Naval on to “unorga- require and the of the states that the militia,” nized which every enrollment; consists of militiamen be notified of their member of the militia who is not a that year, member within one pass states laws of the National Guard or Naval Militia. to arrange divisions, the militia into bri- clear, “well makes foregoing battalions, As the compa- and regiments, gades, nies, cers; appointed orders requirements tion were State We themselves other, arm themselves gardless the Second judges], Congressmen, citizens and (as “well plicit a clear For sion duty “the Vice President States, ployed merchant within cers, employed at ... The Another distinct provided instance, subject to of certain take as well all regulated obligated that there ... to the several statute for the i.e., in the sea were indication pilots, of whether [executive post these dual in each state from aspect in Amendment militiamen second by the properly any ferry accordance thus makes were Commander persons appoint Militia.” organization officers, regardless all mariners actually organized) the United be Act organize service of “well of what Militia individuals independent branch states, and the states exempts from requirements supplied corps, various were custom Adjutant General contemplated on the ... all to distribute with the statute. Act is the clear of the in the authors regulated” of the United States; militia service. by the states citizen or any officers actually em- obligated Chief and militia had armed militia, re- house that with arms post Ferrymen organiza- of each —to so —that militia exclu- these road, offi- aas offi- im- on. all be all regulated body. See ing ganizations (Kleinfeld, and Alexander ORIGIN popular ing an point, ond (David of the ensure al called. isolation, even if interpretation Alternatively, when read the civic points Amendment’s two interactive that the prefatory lokh, ed or As we fathers, operative clause ^[*] Congress the Amendment militia is consistent individual Of E. isolation, conditioned one reads course, observed, operative character Militia” was participation. it Young language. The Seoond J.). Commonplace over a ^[*] Silveira, including supports singular of the the District preamble Hamilton, While unambiguously and right was the best militia and ed., ^[*] clauses. popular that the the District clause in some should bear Compare 2d nature of Second Amendment. not an elite George some of Amendment operative could serve ed.1995), read, correctly, as ^[*] with favored must be as an it is The prefatory Second arms: Preserv militia, see The collective popular not, contends The way by the imbued Washington an individu Eugene Vo argues that the found ^[*] at important indication clause required or select such or the Sec restrict Amend fact, District way to nature clause when with xlvii # may be hereafter are or now persons (1998), who with ment, L. Rev. N.Y.U. respective by the laws exempted Dorf, Does the What C. Michael XXXIII, ch. May states.” Act 76 Chi.-Kent Today?, Mean Amendment found- Thus, after the However, even (2000). struc 1 Stat. 271. L. Rev. regulated,” “well out became turns ing-era of the Second ture character. examine popular its when we did lose not so unusual to be majority of adult guarantee provisions included the militia still constitutional state time, restricting governmental (albeit, “free able-bodied rights at the ing men prefatory male[s]”), quite to arm them- common were It was power. who white whom, good gov principle expected to state selves, language the states oper narrower than Quite un- that was units. ernment into fighting organize Volokh, it. achieve Guard, language used ative participation today’s National like at 801-07. supra, mandatory. widespread bates, We think the Second Amendment was where the Federalists relied on the similarly structured. The prefatory lan- existence populace armed to deflect guage announcing Antifederalist criticism that desirability strong the of a feder- government al would lead to well-regulated oppression bearing militia —even tyranny. Antifederalists acknowl- concept mind the breadth of the of a mili- edged the argument, but insisted that an guarantee tia—is narrower than the anof populace armed enough, was not and that individual right keep and bear arms. the existence of a popular militia should The Amendment not protect does “the guaranteed. also be Compare The Feder- right keep of militiamen to and bear (Alexander Hamilton), Nos. alist arms,” but rather “the of the people.” (James Madison) No. 46 (arguing that an clause, operative read, The properly pro- armed populace constitutes a check on the ownership tects the and use of weaponry potential abuses of govern- the federal beyond preserve that needed to the state ment) with Melancton [Federal Smith Again, militias. we out that if the point Farmer], To A Observations Fair Examina- competent drafters of the Second Amend- System tion Of The Of Government Pro- ment had meant the to be limited to posed By Convention, The Late And To protection militias, of state it is hard to Neoessary Several Essential And Altera- imagine they would have chosen the (Nov. 8, 1787), reprinted in tionsin It language they did. therefore We take Origin Of The Second supra, Amendment, expression as an of the drafters’ view that 91 (despite the “yeo- fact that the people possessed a natural right manry country ... possess arms” arms, and bear preser- and that the defense, government the federal could vation of militia right’s most regular undermine the militia and render political salient benefit —and thus the most the armed populace of importance). no appropriate express political in a docu- sure, To be as District argues, ment. Miller Court did upon draw prefatory That the Amendment’s purpose civic clause interpret the term “Arms” in the was placed preamble in a perfect makes operative below, clause. As we note inter- given sense the then-recent ratification preting “Arms” in light of the Second controversy, wherein oppo- Antifederalist Amendment’s militia purpose makes sense nents of the 1787 agitated Constitution for because “Arms” open-ended is an term greater assurance that the system that appears but once in the Constitution would remain robust and Bill standing Rights. so ar- But Miller does not mies, which thought by many command that at the we limit perfectly sensible time to liberty, be the bane of constitutional text would not be such “the people” in a necessary. manner See BERNARD inconsistent with oth- BailyN, Ideo- logical Origins er provisions. constitutional Similarly, Of The Amerioan Revolu- ed.1992). use of (Enlarged “keep” Amendment’s does The Fed- tion not need to be recast artificially military eralists who the First .Congress dominated terms in order to conform to Miller. offered the preamble Second Amendment’s palliate Antifederalist concerns about We note that when interpreting the text the continued popular existence mili- of a constitutional amendment it is com- tia. But neither the Federalists nor the mon for courts to guidance look for in the thought Antifederalists govern- federal proceedings of Congress that authored ment had power disarm people. provision. Unfortunately, the Second This is evident from the ratification de- Amendment’s history drafting relatively

391 Bill of the Emerson, applicability the 270 Court asserted inconclusive. and scant following in in the Rights to the territories debates The recorded 245-51. at F.3d the not reference do terms: Congress the First that clause, likely indication operative Congress that ... will contend one [N]o guarantee individual . its took

the drafters Territory respect- in a make law can cer- There is uncontroversial. as rather or the religion, the establishment of ing history to substanti- in this nothing tainly thereof, abridging the free exercise of the reading Second strained ate the or the speech press, or of the freedom of District. by the offered Amendment Territory the people of the right assemble, petition and to to peaceably B griev- the redress of for the Government unequiv no there is that have noted We [njor deny Congress ... can ances the outcome that dictates precedent ocal and bear right keep the the has never decided This case. this arms, by jury, trial nor right the nor protects Amendment the Second whether against a witness any one to be compel keep right collective an individual .... proceeding in a criminal himself antici occasion we arms. On one bear rights ... in relation powers These scope the about argument pated are, express positive in ... person issue Amendment, but because the Second terms, Govern- to the General denied by appel raised properly not been had ment. applicability lants, the we assumed added). Although (emphasis Id. 450 urged then interpretation collective errone- as it was is as infamous Dred Scott Or government. Fraternal by the federal are that holding African-Americans ous (F.O.P.II), States Police v. United der of the citizens, expresses passage this not (D.C.Cir.1999). 898, The Su F.3d 906 173 the Second view, passing, albeit this issue not decided has preme Court right. It said, personal contains a the Amendment As we See id. either. rights, among case other individual leading Amendment is included Second by jury States v. Miller. to trial Supreme Court United as the such Su guide, best Miller is our against While self-incrimination. privilege statements on other preme Court’s cases Amendment other Second mention. warrant upon touch century did not mid-nineteenth nature of collective versus individual 393, 60 Sandford, U.S. In Dred Scott v. (1857), guarantee.13 393, Amendment’s L.Ed. 691 How. 15 19 importance Cruikshank, is a corporation debate matter 92 U.S. v. States In United (1876), gun control 551, challenges state many v. and Presser 23 L.Ed. 588 252, 264-66, Illinois, laws, 29 decide. 6 S.Ct. need not that we 116 U.S. is an issue (1886), District, held the Court Federal L.Ed. of Columbia is The District only federal constrained Although Second Amendment Congress. by ultimately controlled apply to and did not government law, action see An federal subject to 1983 suits holding governments. This of state actions U.S.C. [42 Under Civil Suits to Permit Act Dow, U.S. v. was reiterated Maxwell Acting Any Under Against Person § 1983] (1900), 44 L.Ed. 597 20 S.Ct. of the District of Any or Custom Law Color of Columbia, Jersey, Twining v. New 96-170, Stat. 1284 Pub.L. No. Indeed, (1908). 53 L.Ed. directly (1979), constrained the District Bill of is one of the few Second Amendment Rights, need for the without Bill of the entire yet held to been Rights provisions has See, e.g., Pernell incorporation. intermediary of through Fourteenth incorporated 363, 369-80, Realty, 416 U.S. Southall the status of While Amendment. (1974) (apply- 40 L.Ed.2d twentieth-century in Amendment within Baldwin, In Robertson v. limitation regulatory on the (1897), 17 41 L.Ed. 715 the and bear arms. The decision does not scope Court addressed the the term of discuss right whether the is individual or “involuntary servitude” in the Thirteenth Still, collective. Robertson tends to cut , discussing Amendment. limitations in- against any version of the right collective provision, herent that constitutional the argument. If right the keep and bear following: Court said the individuals, arms protection offered no perfectly

The law is well settled that the the Court would likely pick not as a note- constitution, first 10 amendments to the worthy exception right to the a prohibition commonly known as the Rights,” “Bill of on concealed weapons. The na- individual lay intended to novel down permitted ture the regulation suggests principles government, simply but too, that the underlying right, concerned embody guaranties certain and immuni- personal ownership of firearms. ties which we had inherited from our New decisions Second Amendment ancestors, had, English and which from relevance arose in early decades immemorial, subject time been to certain century. Miller, twentieth Then came well-recognized exceptions, arising from Supreme thorough Court’s most analysis the necessities of the case.... date, the Second Amendment to and a Thus, the freedom of speech and of decision that both sides of the gun current (article 1) press permit does not control debate have claimed as their own. publication libels, blasphemous or in- (and agree We with the Emerson court articles, or publications decent other in- dissenting Circuit) judges in the Ninth jurious public private morals or repu- that does support Miller not lend tation; right right Silveira, collective model. See (article 2) bear arms infring- is not (Kleinfeld, Emerson, F.3d at J.); ed laws prohibiting the carrying of 270 F.3d at 226-27. Nor does support weapons; provision concealed quasi-collective District’s Al- position. no shall person put be twice in jeopardy though did not explicitly accept Miller (article 5) prevent does not a second individual position, the im- decision trial, upon if the first trial jury failed plicitly interpretation. assumes agree, or if the verdict was set aside Miller involved a Second Amendment upon motion; the defendant’s nor does challenge by criminal defendants to section the provision of the same that no article (then 11 of the National Firearms one shall Act be a against witness himself codified §§ at 26 impair U.S.C. obligation seq.), his et testify, if a pros- prohibited which against ecution transportation him be interstate barred time, lapse of of certain pardon, by statutory registration firearms without a enactment. stamped order. The defendants had been indicted for transporting a short-bar- 281-82, 165 U.S. at (emphasis reled shotgun from Oklahoma to added). Arkansas Scott, Just as Dred the Second contravention the Act. The district Amendment in a cata- mentioned court logue sustained defendants’ demurrer chal- other well-known individual provisions, and, lenging Supreme their indictment on Second Court’s thin grounds. Second Amendment jurisprudence, government Amendment Robertson has the straightfor- appealed. virtue of The defendants submitted no wardly suggesting permissible one form of brief and appearance made no in the Su-

ing legislation District). Seventh Amendment to local for the warfare, and 175-77, in civilized ally employed Miller, Court. preme military equip- ordinary case on direct constitute the Hearing the S.Ct. 816. State, Aymette and remanded. (quoting reversed ment.” Id. the Court appeal, (2 Hum.) S.Ct. 816. 1840 WL 1554 Id. at Tenn. (1840)). weapons-based government’s question whether On the the Miller Court with argument provided or col- individual protects an Nation- uphold means to an alternative in Miller opinion right, the Court’s lective if the Court disa- al Firearms Act even The it omits. for what most notable government’s the collective greed in its Miller with argument first government’s by Court’s hold- [the Miller right right argument. that “the secured The was brief keep alterna- government’s Amendment] the ing Second is based on may be not one which arms is and bear position: tive only one but private purposes for utilized tend evidence the absence in are borne the arms where which exists use of possession or ing to show military organiza- other militia or some the having barrel of less than “shotgun and intended for by for provided law tion length” inches at this time eighteen Appellant’s protection the state.” relationship the has some reasonable 174, This 15, 59 816. U.S. S.Ct. Br. at 307 efficiency regu of a well preservation or model. right of the collective is a version militia, say that we cannot the lated Circuit, signif- think Fifth the we Like guarantees the Second the not decide Court the did icant and bear such an instru this, primary government’s case on judicial Certainly not within ment. it is Emerson, at 222. argument. any part weapon is notice that this logic Rather, the Court followed or ordinary military equipment which secondary position, government’s to the common its use could contribute not shotgun was that a short-barreled was State, 2 Hum v. Aymette defense. “Arms” in the the term scope within (Tenn.) 158, 154, 1840 WL 1554. phreys Amendment. (em- Miller, 178, at that even argued government had The added). ap- makes quotation phasis an individual adopted had courts that those focused on parent that Amendment14 theory of the Second by the Second protected are what arms “Arms,” as used that the term held had Emerson, Amendment, F.3d at see consti- various state Federal and both 224, individual not the collective weapons tutions, “only to those referred If the Miller Court right. nature of the military or ordinarily for are used which first government’s to endorse intended not re- and does purposes defense public view, it i.e., the collective argument, commonly are weapons which to those late out that undoubtedly pointed would Br. at Appellant’s criminals.” used affiliated with two defendants were govern- 59 S.Ct. 816. U.S. military or- local other a state length at quote proceeded ment then Id. ganization. case inter- state court a Tennessee sure, linked the the Miller Court To be Bill of Tennessee “Arms” preting the Con- language Amendment’s as are usu- Second weapons “such Rights to mean Duke, (1875). Appellant's See Br. 42 Tex. 455 States cites the brief 14. Here 83 L.Ed. interpreting state U.S. at state court decisions two Brown, People provisions: constitutional (1931); State v. 235 N.W. 253 Mich. militia clause: stitution’s “With obvious sion.” Id. at 59 S.Ct. 816. When purpose to assure the continuation and up by called either the state or the federal possible render the effectiveness of such government, “these men expected [i.e., the militia] forces declaration and appear bearing supplied by arms them- guarantee of the Second Amendment were selves and the kind in common use at interpreted applied made. It must be added). the time.” Id. (emphasis with that end view.” 307 above, As we noted the “Militia” was S.Ct. 816. We take the “declaration and vast, free, white, including all able-bodied guarantee” referred the Miller Court men who were properly enrolled with a to mean the prefato- Second Amendment’s contrast, local militia By officer. (which ry necessity clause declares the of a (and Ninth recently Circuit has we think Militia”) regulated “well operative and its erroneously) read “Militia” to mean a (which guarantees preservation clause “state-created and state-organized fighting right) respectively. of a force” that unorganized excludes the popu- The District would have us read this Silveira, lace. 312 F.3d at 1069. As passage recognizing as a limitation on the Judge noted, Kleinfeld the Ninth Circuit’s right Second Amendment on based the entirely ignores decision Miller’s control- thereof) (or individual’s connection lack ling definition of the militia. 328 F.3d organized functioning militia. We dis- (dissenting from denial of rehearing en discussed, agree. already As the Miller banc). The Ninth Circuit’s interpretation examining court was relationship the be- of “Militia” also fails to account for the weapon tween the in question short- —a second Militia Act 578-82, id. at as shotgun preservation barreled —and well as local militia units such as federal system, the militia which was the Amend- provided those for by the Northwest Ordi- politically ment’s purpose. relevant nance, 7, 1789, VIII, see Act of Aug. ch. indefinite, quite term “Arms” was but it Stat. or for the District of Columbia in peculiar, least, would have been to say the Act of XX, March ch. if it designed ensure that Stat. 215. had an right individual to keep weapons capable of mass e.g., “Militia,” then, Miller’s definition of cannons. destruction — Thus the Miller Court limited the term offers further support for the individual interpreting it in a right manner con- interpretation of the Second Amend- “Arms”— sistent with the Amendment’s underlying ment. Attempting to draw a line between civic purpose. Only “Arms” whose “use or ownership and use of pri- “Arms” for possession ... has some reasonable rela- purposes vate and ownership and use tionship preservation or efficiency of of “Arms” purposes for militia would have militia,” a well regulated id. at 59 been an extremely silly exercise on the S.Ct. qualify would for protection. part of Congress the First if indeed the very survival of the depended militia Essential, then, on to understanding what men who would bring their weapons commonplace, qualify as Second Amendment private arms with them to muster. A “Arms” is an ban awareness of how the found- on ing-era the use ownership weapons functioned. The Court ex- plained private allowed, purposes, its if understanding would what un- doubtedly Framers in deleterious, had mind have had a they spoke when if not the militia in catastrophic, terms we have discussed effect on the readiness of the above. The members of the militia were militia for action. We do not see how one to be primarily, “civilians soldiers on occa- could believe that Congress, First implicate not federal- Amendment, militia does that its the Second crafting when in the Second drawing such a embodied ism concerns engaged would distinction, i.e., legis- and we local the District’s impractical foolish Amendment — as recognized “security the Miller does not interfere with think lation much. of a free State.” it, nor could argue, The District does summarize, we conclude To con if the Second Amendment that even indi protects an is en right, individual fers an That and bear arms. vidual (that of states only by the residents joyed the formation prior to existed of the United that citizens would mean the Constitution under government new territories, such as the who lived States use private on the premised and was accep to their Territory, prior Northwest hunting such as activities arms for states, enjoy a constitu did not tance as self-defense, being understood the latter event, Supreme right). tional lawlessness private to either resistance held unambiguously Court has tyrannical govern of a depredations are ef Rights and Bill of Constitution abroad). (or In addi a threat from ment v. O’Donoghue District. See fect had tion, keep and bear arms right to 539-41, States, salutary purpose of civic important 1356(1933) (quoting 77 L.Ed. citizen militia. preserve helping 260-61, Bidwell, Downes expe political also a purpose was The civic (1901)).’ “The 45 L.Ed. Con the First the Federalists dient to of Columbia of the District mere cession served, placate their part, it gress as relinquished government the Federal The individual opponents. Antifederalist states, take it did not but authority of ensuring service militia facilitated right from under it out of the United States from not be barred that citizens would If, before of the Constitution.... aegis would need when they the arms keeping off, Congress had was set the District Despite the duty. for militia called forth affecting its act unconstitutional passed an Amendment’s of the Second importance If inhabitants, been void. it would have however, it the activities purpose, civic created, the District done after service, militia are not limited protects void; in other equally been would have enjoyment of an individual’s is nor indirectly, words, not do Congress could his or her continued contingent upon District, it could what by carving out in the militia. enrollment or intermittent still re directly. The District- not do States, pro

IV of the United part mained a Id. by the Constitution.” tected its corollary a collective As Rather, argument the District’s S.Ct. 740. argues almost position, District —albeit collective appendage an amounts subject it is not afterthought as —that only if one reads It is position. Amend to the restraints of opera limiting language as prefatory entity.15 federal purely it is because ment militias about guarantee to a tive statute, clause see it has a Although question arrives at ever that one 49-401, argues the District D.C.Code adopted a federal subsequently concurring has been originated in a 15. This contention court, Ashcroft, 297 Seegars v. see of Columbia district opinion in the District States, (D.D.C.2004). Sandidge v. United Appeals, F.Supp.2d see J.), (Nebeker, (D.C.1987) A.2d guarantee State,” is confined to auxiliary whether the state defense of “a free militias. eventually army such an would entire- ly displace the militia. Gerry That wor- dissenting colleague recognizes

Our this ried standing army would be understood point; begins with an opinion accep- her state, “secondary” security as the of a free right interpretation tance of the collective however, indicates that he understood “a Amendment. Dissent at free State” to mean the country new as a 402-04. It therefore not clear to us that all, whole. After no one contended it is even relevant to discuss the meaning standing army of “a language upon free federal would which be used State” — heavily Still, the dissent taking protect relies.16 individual states. It was the en- argument presented, as nation, we think it tire including the District of Co- First, wrong grounds. on several the dis- lumbia, army that a standing would be (and District) sent mistakenly reads “a defend, erected to and thus if a standing free State” to mean an political actual unit army supplant were to the militia in secur- States, York, of the United such as New State,” ing “a free question the “State” in. etc., hypothetical rather than a polity. undoubtedly would have been the United fact, proposal Madison’s initial to the First States. Congress well-regulated stated that a mili- The use of both the indefinite article and security tia was “the best of a free coun- “state,” the modifier “free” with the word Complete try.” su- Rights, Bill Of moreover, unique to the Second Amend- pra, at 169. The House committee then ment. Elsewhere the Constitution refers to substituted for “country” “State” when it “the states” or “each state” when unam- initially proposal. altered Madison’s We biguously denoting the domestic political have no record of the House committee’s entities such Virginia, etc. With “a free proceedings, but it is not credible to con- State,” we understand the framers to have clude that a profound shift was intended referring republican been government change “country” “State,” par- generally. purpose The entire making ticularly there was no subsequent as com- subject the militia authority change. ment on the government national was that a standing The record of the debates the First army would not be necessary. The Dis- Congress upon by relied our dissenting militia, trict’s organized by Congress in colleague only further undermines XX, see Act of March ch. 2 reading of “a free State” meaning Stat. was no integral less to that individual state of the union. As she national function than its state counter- out, points Elbridge Gerry, an Antifederal- parts. That the D.C. militia is not a state Representative ist Massachusetts, from militia does not make it necessary less criticized an initial formulation of the Sec- “security of a free State.” ond Amendment as follows: “A regu- well The dissent Supreme notes a being lated militia Court security the best of a state, free in Perpich Department admitted an idea that a statement De- standing of army fense, secondary was a 496 one.” at 110 Dissent S.Ct. Gerry’s 405 n. 10. (1990), fear obvious was that a L.Ed.2d 312 that “there was a standing army would be erected as an widespread fear that a national standing suggests opinion (whether The dissent not) that our reasoning con- our 16. correct or direct- largely sists of contrast, dicta. Dissent ly supports at 401. But holding. By our reasoning dictum refers to sup- that does not might dissent's "free State” discussion be port holding of a case. We thought superfluous. think all of regulation, indeed its virtual the District’s to indi- threat an intolerable Army posed ownership. handgun sovereignty prohibition, liberty and to the vidual 340, 110 S.Ct. at Id. States.” separate that modern contends The District dissent). Howev- added (emphasis weapons cov- handguns are not sort concern the other er, overlooks dissent But the by the Second Amendment. ered they would armies —that standing with claim runs afoul of Miller’s dis- District’s liberty. a threat individual pose con- “Arms.” The Miller Court cussion consis- entirely Perpich is from language defendants, did not who cluded the American tent, then, the view that with Court, no Supreme provided in the appear (including the residents large at sawed-off) (or showing that short-barreled District) threatened equally would be statute— federal shotguns —banned army. And standing of a presence relationship to the “some bore reasonable position dissent’s directly contradicts the regulat- a well efficiency or preservation was con- Amendment Miller, at ed militia.” preservation exclusively with the cerned However, the also ob- power. state expected to that militiamen were served order dissenting colleague Our —in them when private their with bring arms in the people” meaning to “the give a weapons Those up for service. called her with consistent Amendment in common use “of the kind would be people” “the interpretation analogizes — 816. There time.” Id. at at 403 Amendment. Dissent Tenth handguns that most question can no howev suggestion, Contrary to her n. 5. use) (those description fit that in common limit does not er, the Tenth Amendment Emerson, 270 F.3d at now. See then and Rather, the to state citizens. people” “the pistol (assuming that a Beretta 227 n. to “the powers reserves Tenth test). passed the Miller people.” respectively, States that “the holding Act provides no case terms of the second Militia By the dissent Amendment, as used the Tenth people,” given six months all militiamen were referred people” from “the are distinct enrollment outfit the date of their The one Rights. in the Bill of elsewhere good “a musket fire- with themselves Flintkote, F.2d Lee v. upon, relied case belt, two lock, bayonet a sufficient (D.C.Cir.1979), inappo- n. with flints, knapsack, pouch, spare the Dis merely contrasts That case site. therein, not less than to contain a box states, hand, on trict, on the one with to the bore cartridges, suited twenty four as other; meaning people” of “the firelock, cartridge to or each his musket at was not in Tenth Amendment used powder and quantity proper a contain Indeed, Verdugo-Urquidez, issue. rifle, knapsack, shot- good a ball: or with 1056, directly contra 265, 110 at twenty balls suit- pouch, powder-horn, and reading people” of “the dissent’s dicts rifle, quarter a and the bore of his ed to Amendment, just as contra in the Tenth ” 8,May .... Act powder pound of a peo “the reading of the restrictive dicts (emphasis XXXIII, 1 Stat. ch. in the ple” Second. added). V had somewhat officers Commissioned The Act de- requirements. more onerous the Dis- argument alternative third The that, foregoing, to the in manded addition that, if the Second even presents trict with a armed severally be they “shall individual protects an Amendment ....” Id. espontoon hanger or and District, sword it does not bar applies and at 271-72. Still further demands supplied by were in- government. For officers, stance, placed artillery on the respect who were with to an artillery private (or “matross”), with a hanger, provides be “armed sword or a the Act that he fusee, belt, should “furnish bayonet cartridge- and with a himself with all the equip- private ments of a in infantry, cartridges box to contain until twelve ....” Id. proper ordnance and artillery pro- field cavalry at 272. But commissioned officers vided.” Id. at 272. The Act required dragoons had assume an even militiamen to acquire weapons that in were greater expense, perhaps due to the fact common circulation and that individual positions these were volunteer re- men would be to employ, able such as served for cavalry the well-off. The offi- muskets, rifles, sabres, pistols, hangers, cers required procure “good were hors- etc., cumbersome, but not expensive, or es of at least fourteen hands and a half equipment rare such as cannons. We take high, and to be with a armed sword and the outfitting requirements of the second pair pistols, the holsters of which to be Militia Act precisely to list weapons those caps.” covered with dragoon bearskin that would have satisfied the two prongs of worse, being had it even required to fur- They Miller arms test. bore a “rea- horse, nish “a himself at serviceable least sonable relationship preservation to the fourteen hands a half high, good a efficiency militia,” of a well regulated be- saddle, bridle, valise, mailpillion and hol- they cause very were the arms needed for sters, breast-plate and a crupper, a militia service. And terms of the pair of boots and spurs, pair pistols, Act, they were to personally be owned and sabre, cartouch-box, and a to contain “of the kind common use at the time.” cartridges twelve pistols.” Id. at 272 added). (emphasis handgun The modern for that —and matter long-barreled rifle and shot These items were not antiques mere gun quite undoubtedly improved over —is hung above the mantle. Immediately its predecessor, is, colonial-era but it after following required the list of weapons pur- all, a lineal descendant of that founding- chases, Act provided that militiamen Miller’s, weapon, era passes and it stan armed, appear “shall so pro- accoutred and dards. certainly Pistols bear “some rea vided, exercise, when called out or into ” sonable relationship preservation added). (emphasis service .... Id. efficiency of a regulated well militia.” planned phased-in statute even upgrades They are also in “common use” today, quality of the militia’s firearms: probably far more than in so 1789. Never years “[F]rom and after five from the theless, it has suggested by been some passing act, of this all muskets for arming (e.g., colonial-era firearms single- the militia as required, herein shall be of pistols) shot are covered bores sufficient for eighteenth balls just Amendment. But the First part of pound.” Id. 271-72. speech free clause covers It follows that the weapons described modern devices communication unknown the Act time, “common use” at the to the founding generation, e.g., radio and particularly when one considers the wide- television, and the Fourth Amendment spread nature of duty. militia Included protects telephonic conversation from a among these weapons long were “search,” the Amendment protects Second guns (i.e., rifles) muskets pistols. and and possession the modern-day the equiva Moreover, the distinguishes Act between See, lents of the colonial pistol. e.g., Kyllo the weapons citizens required to fur- States, v. 31-41, United U.S. 121 533 nish themselves and those that 2038, 150 (2001) were to be S.Ct. L.Ed.2d 94 (applying government’s pub- the interest promote thermal to standards Amendment Fourth law search). safety consistent with our common lic imaging however, importantly, Just as tradition. govern suggest that That is not to upon core conduct they impair do not regulating absolutely from barred ment is right premised. which ownership pistols. the use are of the Second protections might also be Reasonable restrictions of reasonable subject to the same sort regulated a “well thought consistent with as recognized that have been restrictions registration of firearms Militia.” The instance, First Amend limiting, for information as to gives government Racism, Against v. Rock ment. See Ward mili many be armed for how would 109 S.Ct. U.S. up. Reasonable fire tia service if called (“[GJovernment (1989) may L.Ed.2d 661 testing pro would both proficiency arm time, restrictions on impose reasonable safety produce better public mote speech protected or manner place, military for service. Personal candidates ”). Indeed, and bear right keep .... characteristics, insanity feloni such as explained pre-exist- we have arms —which conduct, ownership gun that make ous ed, preserved by, and therefore was society also make someone dangerous subject to re Amendment —was militia. unsuitable for service Cfi take these at common law. We strictions “idiots, lu (excluding D.C.Code regulations of reasonable the sort be drunkards, natics, vagabonds, common drafters of the Sec contemplated in any convicted of paupers, persons instance, pre it is For ond Amendment. duty). from militia On famous crime” carry prohibit “to sumably reasonable hand, per that a it does not follow other influence under the ing weapons when for militia service son who is unsuitable drink, church, poll intoxicating or to A and bear arms. right keep has no in a man assembly, or place, public ing instance, for person, disabled physically ” .... terror State inspire calculated to ner in even participate not be able to might Kerner, 574, 107 N.C. S.E. v. rudimentary organized militia. the most (1921). noted, the United And as we have still have the person But this would has observed Supreme Court States arms, just as men over keep and bear concealed carrying of prohibiting the and women would age forty-five not offend weapons does nation though our right, have that even Robertson, at 281- Amendment. excluded them traditionally has also Similarly, the Court 17 S.Ct. 326. As we have membership in the militia. that convicted felons to have held appears than its is broader explained, the may deprived of their Volokh, supra, at 801-07 See purpose. civic States, aims. See Lewis bear .17 n. 100 S.Ct. 445 U.S. prohibits § 7-2502.0218 (1980) Miller, D.C.Code (citing L.Ed.2d 198 registered 816). pistol of a registration regulations These asserted, therefore, gun con- course, that the D.C. virtual ban on the District's 17. Of abiding irrationally prevent law trol laws ownership on mili- handgun is not based owning handguns. It is unnec- citizens from solely justified as a measure purpose. It is tia point, we think the essary for to consider out, point safety. amici protect public As deny impermissibly Second Amend- laws D.C. aware, the black judges are well and as D.C. rights. ment handguns in the is so District market readily available strong handguns are provision reads relevant text of the 18. The It premium) to criminals. (probably at little follows: by applicant prior § in the District D.C.Code 22—150420 restricts separately carrying of a pistol. Appel contends that it 1976.19The District since challenges lant Heller this provision and a firearm, type one bans “residents companion 22-4506, § provision, insofar as more,” still have access to hundreds they appear to moving handgun ban a implicate does not prohibition thus its house, from room to room in one’s own Second Amendment because it does not if lawfully even one has registered the threaten total disarmament. think We (an firearm interpretation the District does argument frivolous. It could be-simi dispute). not to carry pistol order a larly may contended that all firearms be (inside anywhere in the District or outside long permitted. banned so as sabers were home), apply one must for and obtain Once it is determined —as we have done— an additional license the Chief of handguns are “Arms” referred in Police, gives whom the complete Code dis Amendment, open it is not deny cretion to applications. license Hel Kerner, the District to ban them. See 107 ler does not claim legal right carry a a (“To pistols S.E. at 225 exclude all ... home, handgun outside his so we need not a regulation, prohibition, not but a of ... consider the more difficult issue whether ‘arms’ which the are entitled to the carrying District can ban the of hand bear.”). Indeed, pistol is the most guns public, or in automobiles. It is preferred “keep” firearm the nation to sufficient for us to just conclude that may flatly District not protection keeping and use for ban the one’s home and handgun home, of a obviously may Gertz, family. Gary Kleck & See Marc prevent it from being through moved Armed Resistance to Crime: The Preva out one’s house. Such restriction would lence and Nature with a of Self-Defense negate upon the lawful use which the Ceiminology Gun, L. 86 J. Ceim. & premised i.e, self-defense. — (1995). And, noted, as we have premise Second Amendment’s that guns Finally, there is the District’s re kept by would self-protec citizens for quirement § under D.C.Code 7-2507.02 (and tion hunting). registered that a kept firearm be “unload- (a) registration A certificate shall not be provision relevant text of the reads as 20.

issued for a: follows: (a) person carry No shall within the Dis- (4) validly registered Pistol not to the cur- trict openly of Columbia either or con- registrant prior Sep- rent in the District person, pistol, cealed on or about their 24, 1976, except provisions tember that the pursuant without a license issued to District apply any organi- of this section shall not law, deadly danger- Columbia or or employs zation that at least 1 commissioned weapon capable being ous so concealed. special police employee officer or other li- Whoever violates pun- this section shall be carry censed to a firearm 22-4515, and that arms the provided § except ished as employee during with a employ- firearm that: duty police (1) ee’s hours or to a person officer who A who violates this section Metropolitan carrying has retired from the pistol, Police without a license issued Department. pursuant law, to District of Columbia or any deadly § dangerous weapon, D.C.Code place 7-2502.02. in a person's other dwelling place, than the here, Although business, not relevant there is also an place of pos- or on land other exception registration restriction for person, sessed shall be fined not police $5,000 Metropolitan retired officers of the Po- imprisoned more than for not Department. lice § See D.C.Code 7- years, more than 5 or both .... 2502.02(b). D.C.Code 22-4504.

tH o summary grant court is ordered to by trigger district or bound ed and disassembled device, the judgment unless such firearm to Heller consistent with or similar lock business, or while in appellants’ for relief contained place prayer at kept [a] is purposes recreational being complaint. used lawful This of Columbia.” the District

within using a lawfully Heller provision bars HENDERSON, KAREN LECRAFT in the home protection handgun for self Judge, dissenting. Circuit a only for use of allows the statute because noted Fifth Circuit As has been As activities. during firearm recreational Parker in United States Judge Robert M. out, § 7- accurately point appellants (2001) (“The Emerson, v. F.3d to a useless pistol reduce a 2507.02 would in dicta pages fact that the 84 contained does springs.” Heller hunk of “metal interesting, majority opinion] are [the challenge requirement the appear change scholarly, and written does not well unloaded or ordinarily kept be gun that a they are dicta and amount the fact that under lock be attached trigger that a even advisory long- treatise on this at best simply contends He some circumstances. debate.”) (Parker, J., concur running of a possession to the that he is entitled origin, the opinions on ring), exhaustive employed to be firearm “functional” scope of the Second Amend purpose and limb. The Dis- threat to life or case of a ment to the United States Constitution that, notwithstanding responds trict to the feder to be irresistible proven Code, judge would language of the broad See, Lockyer, v. judiciary. e.g., Silveira al narrowing con- statute a likely give the Cir.2003) (as (9th 1052, 1060-87 312 F.3d confronted with a self-de- when struction Emerson, amended); at 218-72. so, might That be but justification. fense page page been after The result has often un- up for the lenity cannot make judicial side of the debate “dueling dicta”—each constitutional of a reasonable restriction articles and obscure offering law review 7-2507.02, on like the bar right. Section an outcome support historical texts home, amounts carrying pistol within majority adds Today the proper. deems on the lawful use prohibition complete to a pages pile.1 to the Its fifty-plus another such, we As handguns for self-defense. how pronounced, more superfluity is even unconstitutional. hold it ever, meaning of the Second because VI in the District Columbia (District) Why? As academic. purely reasons, judgment foregoing For v. Ash Seegars Judge Walton declared is reversed and of the district court (D.D.C.2004), 201, 239 croft, F.Supp.2d are no there case is remanded. Since part sub nom. See part, rev’d in dispute, ajfd of fact questions material Fourth Amendments. challenged in the First and fire- anteed declaring District's Verdugo- (citing States v. at 380-82 Id. unconstitutional, majori- arms ordinances Urquidez, 494 U.S. 377-401, Maj. Op. ty pages, at takes over 45 (1990)). unre- That L.Ed.2d 222 estab- explaining Second Amendment that the regu- well prefatory clause—"A stricted keep an unrestricted individual lishes Militia, necessary security being lated' arms, analysis can at 395. Its and bear see id. simply enunciates a free State” —which The Second be summarized as follows: Op. Maj. purpose,” "civic Amendment’s right of guarantee clause—“the Amendment’s word "Arms” in and modifies Arms, shall not and bear clause, (citing at 390-91 operative id. Miller, people” infringed” "the with United States 816, —endows (1939)). rights guar- 83 L.Ed. 1206 right analogous to the individual 1248, Gonzales, reh’g unregistered, shotgun. en short-barreled gars v. Miller, denied, (2005), 1, F.3d 1 “the Dis at 175 & n. 59 413 307 U.S. S.Ct. 816. banc a quashed is not state within the The court had the indict- trict of Columbia district Amendment and meaning of the Second ment it concluded that because section Amendment’s reach therefore the Second National Act of the Firearms violated following it.” 177, not extend to -For the does Amendment. Id. at Second S.Ct. reasons, I dissent. respectfully High disagreed, declaring: 816. The any tending the absence evidence

I. possession to show that or use of a recognized, has As our court ‘shotgun having a barrel of less than Supreme guidance on the States Court’s eighteen in length’ inches at this time “notoriously Amendment is scant.” Second relationship has some reasonable to the States, v. Fraternal Order Police United preservation efficiency or well regu- a (D.C.Cir.1999) (FOP). F.3d militia, say lated we cannot be, is, me, may it at While scant it least to guarantees Second Amendment in that respect. unmistakable one And right to and keep bear such an instru- appellant it respect, one dooms Heller’s Certainly judicial ment. it is within challenge.2 weapon any that this part notice ordinary military equipment or that Miller, In United States v. its use could contribute to the common (1939), only 83 L.Ed. 1206 defense. twentieth-century Supreme United States added). analyzes (emphases Court decision Id. 59 S.Ct. 816 scope Amendment, Then, I, § quoting the Second the Government Article 8 of the Consti- tution,3 appealed quashing succinctly the district court’s of an the Court unam- —but (and charged biguously indictment that Miller one down understanding its —set other) with violation of section of the Second Amendment: obvious “With Act, purpose National Firearms Pub.L. No. to assure the continuation and (1934), §§ seq. possible 26 U.S.C. 1132 et render Stat. the effectiveness of such an transporting guarantee interstate commerce forces the declaration and appellants standing, remedy trig 2. The other lack respect five see ministrative with to the Gonzalez, (D.C.Cir. Seegars ger provision, already 396 F.3d 1248 lock we have decided 2005), standing challenge enough "its and Heller has absence is not [their] render 7-2502.02(a)(4), justiciable only § if claim[s] D.C.Code the imminence of the under for, denied, injury inadequate.” threatened Id. at applied pistol 1256. which he and was permit. difference between the I, 3. pro- Article section 8 of the Constitution standing appellants of the in this case and vides: Seegars appellants that of the relates to Hel is, permit ler’s denial. appel That none of the Congress shall have Power ... here, Heller, including lants faces imminent provide calling To for forth the Militia to 7-2507.02, injury § from D.C.Code which re Union, suppress execute the Laws of the quires any registered kept firearm be Invasions; repel Insurrections and unloaded and disassembled or bound provide organizing, arming, To device, trigger lock or 22- Militia, similar section disciplining, governing and for prohibits carrying unregis which an may employed Part such of them as be pistol. They "allege prior tered States, no threats reserving the Service of the United against provisions] [based them on those respectively, Appointment to the States Officers, indicating especially characteristics Authority training and the high probability pro of enforcement according discipline pre- [of those the Militia against Seegars, by Congress. visions] 396 F.3d at them.” scribed Const., I, Although appellants lack an ad Art. els. 15-16. It “guarantee” “declaration” and its made. Amendment were —“must with that interpreted applied” together. Id.4 interpreted applied be must added). By Construing together its two clauses so Id. end in view.” (emphases as Miller that, declares, words, declared that emphatically these arms relates to people5 its bear the entire Amendment —both a militia and not to the individual’s have noted that maintain of our sister circuits 4. Nine (internal guarantee declaratory right quotation ....” clause modifies to bear arms Silveira, ("The States, omitted)); at 1066 312 F.3d clause. See Cases v. United 131 F.2d people's 916, (1st Cir.1942) ("[Tjhere protects the amendment 923 is no evi militia, and does an effective state maintain appellant dence that the was or ever had been right to own or an individual not establish organization any military or that a member of use.”); personal other possess for or firearms weapon under the circum his use of the 693, City Indianapolis, 185 F.3d Gillespie v. preparation disclosed was in for a stances (7th Cir.1999) ("Because Gillespie has no 711 Cases, career.”). military the First Circuit being prospect able to demon reasonable considered, alia, a Puerto Rican crimi inter the firearms dis strate ... a nexus between challenge Second Amendment nal defendant's opera by and the ability imposed the statute Significantly, the to the Federal Firearms Act. militias, judge] court [the district tion of state analy qualified its Amendment court Second right to dismiss his Second as sis follows: claim.”); Wright, 117 F.3d United States v. applicability imposed of the restriction Cir.1997) ("[T]he 1265, (11th Miller 1273 by upon power the Second Amendment the Second Amendment to Court understood Rico, Congress legislate or for Puerto weapons protect only possession or use of any territory, ques- raises matter actively reasonably related to a militia that is However, complexity. we tions of no little states.”); by Unit and trained maintained upon do not feel called to consider them 273, (3d Rybar, 286 ed v. 103 F.3d States we that the Federal because take the view 1996) ("[T]he assigned no Cir. Miller Court unconstitutionally Act does not in- Firearms special importance to the character of the fringe appellant’s right, if one in a itself, a rea weapon but instead demanded all, territory any right keep has 'possession relationship its between sonable bear arms. activity."(quoting or use’ and militia-related Cases, 131 F.2d at 920. 178, Miller, 816)); v. U.S. at Love 307 Cir.1995) 120, (4th Pepersack, 47 F.3d 124 language in Unit I have not overlooked ("The consistently held that the courts 259, Verdugo-Urquidez, v. 494 U.S. ed States only confers a collective Second Amendment 1056, 265, (1990), 222 S.Ct. 108 L.Ed.2d 110 bearing keeping arms which people” used in the effect that "the as relationship to the must bear 'reasonable refers to various of the first Ten Amendments efficiency well-regulated preservation or of a part ” persons who are of a national "a class of Miller, (quoting 307 U.S. at 59 militia.’ developed community have otherwise or who Hale, 816)); States v. 978 F.2d S.Ct. United country to be connection with this sufficient (8th Cir.1992) ("Whether 1020 community.” just part But considered of that purposes 'right arms’ for militia is to bear rights ties the re as the Tenth Amendment or in nature is irrele ‘individual’ 'collective' people” indi to "the served thereunder where, here, posses vant the individual's "States,” thereby excluding peo "the vidual preservation arms is not related to the sion of Co., District, ple” Lee v. Flintkote militia.”); cf. efficiency v. of a United States (D.C.Cir.1979) n. 14 593 F.2d 1278 (10th Cir.1977) Oakes, 564 F.2d states, District, ("[T]he has re unlike the no ("The purpose the second amendment as by power guaranteed the Tenth to be served Supreme Court in United States stated Amendment.”), simi the Second Amendment preserve ... was to the effectiveness v. Miller States, people” those of the larly limits "the the state mili assure the continuation of Clinton, F.Supp.2d Adams v. amendment The Court stated that the tia. cf. (D.D.C.2000) (“Although standing alone the interpreted applied with that must be Warin, States’ Arti phrase 'people [in of the several view.”); purpose States v. I, meaning all Cir.1976) ("[T]he be read as (6th 1] cle cl. could Sec 530 F.2d not sim the 'United States' and 'to and bear ond Amendment states, of individual ply those who are citizens only right of the State to applies to the Arms' 468, 478-79, Transp., is Pub. vitality continued those Militia whose (“The (1987) 2941, 97 L.Ed.2d safeguard individual required Miller, that, States, depends large part I under rule of law on adher- believe decisis.”); ence to the doctrine of stare excluded from the inescapably District Rybar, United States is not a Amendment because Cir.1996) (“As (3d one of the fed- However the Second Amendment inferior State.6 subsequently subject Supreme labeled eral courts right has been Court’s collective, precedents, individual we have neither the license others —whether engage of either —Miller’s label nor the inclination to such free- modified version wheeling presumptuousness.” (responding one that matters.7 And until is the that Miller Supreme argument “wrong revisits its and unless Miller, (and one-sided) reading superficial analysis of the Second Amend- its (internal obliged are quotation ment is the one we to follow. Second Amendment” omitted))).8 Dep’t Highways See Welch v. Tex. & “ citizen, subsequent repeated 'any prevent refer- date [Article l’s] with intent to or ... make clear that the 'state[s]’ ences to enjoyment any hinder his free exercise and intended."); Verdugo- former was not see also privilege granted or secured to him 265, Urquidez, 494 at 110 S.Ct. 1056 U.S. by the constitution or laws of the United ” I, 2, 1). (citing § U.S. Const. Art. cl. 141). (quoting States.' Id. 548 16 Stat. convictions, setting In their aside the Su (U.S. 6. Nor do the Militia Clauses Const.Art. preme Court declared: I, 8, cls.15,16) § conflict with the view that the of the Second “Militia” any pur- [The to bear arms lawful for means those of the States. As used in the pose] right granted by is not a the Constitu- Clauses, Indeed, plural. "Militia” is Militia depen- tion. Neither is it in manner 8, I, Article clause 16 states that the section upon dent that instrument for its existence. Congress power provide "[t]o shall have The second amendment declares that it organizing, arming, disciplining, for this, infringed; shall not be but as has been Militia, governing and for such Part of them.” seen, means no that more than it shall not added). II, (emphasis Article section 2 also infringed by Congress. indicates the Militia Clauses refer to "the Mi- language Id. at 553. This does not conflict litia II, the several States.” U.S. Const. Art. with Miller—as I read Miller—because it does added); (emphasis cl. 1 Oxford cf. simply recognizes not define the but that (2d 1989) ("Mili- English Dictionary 768 ed. content, right, whatever its cannot be in- Orig., spec. a. tia” "4. distinctive name of fringed by government. the federal More in- service, military of the British branch form- teresting nineteenth-century is the case Miller volunteers, ing, together with the what are cite, Illinois, does Presser v. 116 U.S. 6 auxiliary 'the known as forces' as distin- There, (1886). S.Ct. 29 L.Ed. 615 (Con- guished regular army from the .... upheld legislation against Court state a Sec- sing, plural.)"). strued either as challenge, relying ond Amendment on Cruik- previously 7. Our court has "assume[d]" the holding shank's that the Second Amendment guarantee Miller "test” to mean that the must government only. constrains the national FOP, light be read in of the declaration. See following The Court then included the lan- 173 F.3d at 906. guage: cannot, laying states [T]he even the consti- nineteenth-century Supreme 8. One view, provision question tutional in out of Cruikshank, precedent, United States v. 92 prohibit people keeping from and bear- (1875), U.S. 23 L.Ed. 588 is included in arms, ing deprive so as to the United States every almost discussion of the Second Amend rightful Miller, however, maintaining of their resource for ment. does not cite Cruik shank, case, public security, and disable the good reason. In that performing duty general challenged their several criminal defendants their government. under the convictions Enforcement Act of making 1870 unlawful threaten or intimi Id. at 584.

405 in the tion.... word state used [T]he II. a member designating constitution as long has held Supreme Court union, from the term and excludes in the Constitution refers as used “State” attached to it writers signification of the Union. Chief to one of the States on the law of nations. Marshall, rejecting the ar- John

Justice Ellzey, & Dundas v. Hepburn Cranch constitutes the District gument (1805) 445, 452-53, 2 L.Ed. 332 U.S. III, Article section under “State” Geofroy see also De added); (emphasis and, derivatively, the Judicia- Constitution 258, 269, Riggs, 1789, explained: (1890). ry fact, Act of L.Ed. 642 Constitution apart uses “State” or “States” times is a urged been that Columbia has [I]t from the Second Amendment and 116 of and is there- political society; distinct unambiguously the term refers to according to the defini- fore “a state” Const., the States Union.9 U.S. This is general on law. tions of writers passim. Accepted statutory construction congress obvi- true. But as the act of the same give directs that we “State” word “state” reference ously uses the meaning throughout the Constitution. Cf. constitution, as used term Treasury, Sec’y Sorenson v. necessary inquire whether it becomes L.Ed.2d of that is a state the sense Columbia (1986) (“The statutory normal rule of 855 The result of that examina- instrument. assumes that identical words construction the members that tion is a conviction parts used in different of the same act are of only are the (in- confederacy American the meaning.” intended to have the same omitted)).10 in the constitu- quotations ternal contemplated states however, son), "country” changed was to refers to In three instances the Constitution 9. Record, 9, State,” I, Documentary (citing su- § "State.” Id. "foreign Const. Art. see U.S. Ill, 2, 30). 8; 1; Judge noted: pra, at As Walton § XI. id. Art. cl. id. amend. cl. meaning plainly different also "State” with a Gerry Elbridge explained Anti-Federalist "State appears in reference to the President’s "necessary changing language to the that II, 3,§ Art. cl. 1. The of the Union.” Id. security emphasized the the of a free State” to "a” State five times. Constitution refers over the federal primacy of the state militia 2; Ill, 2, 1, § els. id. amend. See id. Art. well-regulated standing army: militia “A XX3II, 1, adjective pre- descriptive § cl. 2. A state, security being of a free ad- the best IV, id. Art. cedes “State” two times. See army standing was a an idea that a mitted 3, ("no State"); § id. amend. XXI- cl. 1 new secondary one.” 1, State”). II, ("the populous 2 least cl. (internal quota- Seegars, F.Supp.2d 297 at 229 omitted) Yassky, (quoting (citing supra tion 17, history legislative Register, August of the Second Congressional The Indeed, supports interpretation 1789)). meaning light also the of the Amendment Constitution, throughout the "State” as one of the States of Union. "State” used 5, Congress, pro- are supra p. James Madison and the care the drafters In the First see selecting specific language well-regulated presumed have taken in posed that a Jennison, country." 39 U.S. security language, see Holmes v. "the best free was 570-71, (1840) 10 L.Ed. 579 Yassky, Struc- 14 Pet. David The Second Amendment: ture, appears to ("Every Change, [in Constitution] word History, and Constitutional 99 (2000) Creating weighed with utmost delibera- (citing have been L.Rev. 610 Mich. tion, fully been force and effect to have Rights: Documentary Record and its Bill understood.”), suggests (Helen change plainly Congress 12 E. the First Federal Veit, clarify Bowling Bangs that the drafters intended R. & Charlene Kenneth Record)) eds., 1991) (Documentary in the Second established Bickford added). protect "free[dom]” proposal was was intended (emphasis After the the Union rather than "State[s]” eleven-member House of submitted to an “country.” (including Representatives Madi- committee 406 (D.C.Cir. Columbia, is in effect 91 F.3d “the Constitution

Although 1996) (while District,” state,” O’Donoghue v. not a “D.C. is Com ... in the States, Twenty-first 77 merce Clause and Amend 289 U.S. S.Ct. District). (1933), States, apply Ultimately, as it is in the ment L.Ed. 1356 “[wjhether district of District of consti of the Columbia is Columbia citizen “[a] Territory’ meaning a citizen of a state within the tutes ‘State within the not Hepburn, meaning particular statutory 6 U.S. at of the constitution.” original). Accordingly, provision depends upon constitutional (emphasis aim Supreme specific provision Court and this court character and both Carter, consistently that several consti involved.” v. held District Columbia 418, 419-20, provisions explicitly referring tutional 409 U.S. (1973) added). apply (emphasis do to citizens L.Ed.2d 613 citizens of “States” not 452-53; of the District. See id. see also The Second Amendment’s “character 497, 498-99, Bolling Sharpe, v. 347 U.S. require and aim” not does we treat (1954) (District 693, 98 L.Ed. 884 not S.Ct. the District as a State. The Amendment Amendment); “State” under Fourteenth drafted in response perceived Clinton, 941, 121 Adams v. threat to the “free[dom]” “State[s]” (2000), aff'g L.Ed.2d 270 posed standing army a national con (D.D.C.2000) F.Supp.2d (three-judge See, government. trolled the federal held that district court Constitution does Emerson, 237-40, 259; e.g., 270 F.3d at guarantee District citizens to Silveira, Miller, 312 F.3d at 1076. In Congress vote for members of because Supreme explained senti “[t]he District not constitute does “State” within ment of the time the Amendment’s [of 11); voting Constitution’s clauses LaShawn drafting] strongly standing disfavored ar (D.C.Cir. Barry, 1394 n. mies; the common adequate view was that 1996) (“The District of Columbia is not a country defense of and laws could be se gov state. It is the seat of our national through cured the Militia” of composed Thus, ernment .... Eleventh [the Amend expected appear men who “were bear here.”); application no Lee v. ment] has ing supplied by arms themselves.” 307 Co., 1275, Flintkote 1278 n. 14 Indeed, U.S. at 59 S.Ct. 816. at the (D.C.Cir.1979) (“[T]he District, unlike the Convention, time of the Constitutional states, power guar no reserved to be has “there was a widespread fear that a na Amendment.”). Tenth by anteed the On standing Army tional posed an intolerable hand, Supreme the other the Court and threat to liberty individual and to the sov this court have held that the District can ereignty separate Perpich States.” of parallel a “State” within the meaning of Defense, v. Dep’t of provisions. Loughran (1990) some constitutional 2418, 110 L.Ed.2d (empha v. Loughran, added). 292 U.S. Amendment, then, sis The Second (Full (1934) L.Ed. 1219 Faith and “aimed” to military secure a balance of Credit Clause binds “courts of the District power between the States on the one hand states”); ... equally with courts of the and the government federal on the other.12 States, Milton S. Kronheim & Co. v. District Unlike the the District had—and I, §§ standing army, people U.S. Const. Art. 2-4. would have the militias, stating: use of Seegars 12. As noted in : regular army, fully equal Let a formed; country, resources of people [I]n his efforts to convince the entirely advantages let it be at the devotion of the of the Constitution in The Fed- Papers, government: eralist James Madison noted that federal still it would not be although government going say govern- the federal had a too that the State far protect thority itself from the legislate has —no need both to over this Dis- trict government federal because is a and to exercise control over ‘the federal Forts, Erection entity govern- Magazines, created as the seat of that Ar- [and] ..surely ment. senals it was not intended protection for the afforded the Sec- Second Amendment was included [T]he ond apply entity to an Rights in the Bill of to ensure that that had been created to house the na- people ability would have the to defend government. tional seat of In other potentially against oppres- themselves words, there is no reason to believe that government, just federal which had sive First Congress thought that the fed- given authority been to maintain a government eral seat of needed to be I standing army national Article protected from itself when the Second But, the Constitution. the drafters of adopted. Amendment was having provided the Constitution for a (internal ‘District ... Seegars, [to] become the Seat F.Supp.2d at 238-39 States,’ omitted) Government United citations (emphasis and altera- having given Congress au- in original);13 ‘exclusive’ tions see also Sandidge v. people justice, ments with the on side their mental to the American scheme of repel danger:... against would be able to same apply constitutional standards armed, advantage being Besides the both State and Federal Governments.” (internal possess omitted)). quotation which the Americans over the and citation nation, people every Supreme of almost other But the Court has never held that governments, existence subordinate incorporat the Second Amendment has been Cruikshank, which the are attached ed. States 92 U.S. Cf. ("[The appointed, (1875) which the militia officers are 23 L.Ed. 588 against enterprises forms a barrier is one of the Amendment] amendments that ambition, any powers insurmountable than has no other effect than more to restrict the ”); simple government government which a form of the national .... see also Love, (“The can admit of. 47 F.3d at 123 Second Amend (internal Seegars, F.Supp.2d quota- apply (citing ment does not to the states.” omitted) Cruikshank, 588)); (quoting tion The Federalist No. 23 L.Ed. Cases, (Clinton ed., 1961)). ("Whatever rights at 267 Rossiter 131 F.2d at 921-22 people may ... [under 13. Even if the District were to be considered upon depend legislation; local Amendment] Amendment, a "State” under the Second I do function of the Second Amendment 7-2502.02(a)(4) § not believe D.C.Code could being prevent government to the federal and thereunder., challenged adopted, When government only infringing the federal Cruikshank, Rights protected only the Bill right.” of individuals (citing that at 92 U.S. See, Thus, against government. 553)). e.g., the federal apply the Amendment does not Baltimore, 243, 247, City gun by Barron v. 32 U.S. laws enacted the States. Because of 243, (1833). Pet. specifically 7 8 L.Ed. 672 the "was in Under Amendment doctrine, however, "incorporation” "many by Rights of cluded the drafters of the Bill of rights guaranteed by eight protect against potentially oppres the the first the states a government,” Seegars, Amendments to the Constitution been sive federal 297 230, [by Supreme protected F.Supp.2d held the to be at Court] it would make little sense against by incorporate Although state action the Due Process Clause the Amendment. the of the Fourteenth Amendment.” Duncan v. District is a thus Sec enclave and the federal Louisiana, 145, 149, 1444, might apply 391 U.S. 88 S.Ct. ond seem to without Amendment (1968) (Sixth regard incorporation, 20 L.Ed.2d 491 Amendment to hold that the Dis jury protected trial in criminal case trict a "State” Amend constitutes under the action); time, against Mary yet, state see also Benton v. ment and at the same to treat its land, 784, 795, 2056, 395 U.S. 89 S.Ct. 23 laws as federal is a self-contradiction. words, (1969) ("Once District, L.Ed.2d 707 it is decided that a other either the as a federal enclave, law, particular Rights guarantee including Bill of is funda enacts federal 408 of (D.C. powers 1057, ... which the immense within States, 1058 A.2d 520 destined

1987) general government amendment (“assuming the second the Columbia,” ma expanding great of the the District for be exercised applies guar Second Id. at forty-eight “the states.” jority holds of population than an individu rather antees a collective 539, 53 S.Ct. omitted)); (internal see quotation right” al plenary power Congress possesses (Nebeker, J., concurring) at 1059 also id. “In- Id. and its officers. over the District Amend (“I [the conclude first deed, over the Congress of power ‘[t]he the apply Seat not does ment] legis- all the includes of Columbia District States.”). the United Government may exercise which state powers lative ” Carter, 429, at 409 U.S. affairs.’ over its III. Parker, v. (quoting Berman 602 93 S.Ct. moreover, operation, origin In its 27 99 L.Ed. 75 S.Ct. 348 U.S. the not a “State” of plainly is the District (1954)). delegated Although Congress the instead, com- is, exceptional “an It Union. gov- local authority to the District’s certain Murphy, v. Columbia munity,” District of Home Act of in the Rule ernment L.Ed. 86 seq., §§ 1-201.01 et it reserved D.C.Code (1941), either the States “[u]nlike “on legislation to enact authority Territories, truly generis sui ... is 1-206.01, § and to re- subject,” Carter, D.C.Code structure.” governmental our by gov- the local enacted peal legislation 602. The S.Ct. Constitu- U.S. at 206.02(c)(1). ernment, Bliley § the Dis- the creation of id. See provides tion 1— (D.C.Cir.1994) I, Congress granting trict in Article Kelly, Legisla- Act). exercise exclusive power “[t]o Rule (describing Home whatsoever, such in all over tion Cases States, maintains the District As do (not square) exceeding ten Miles District “[ejvery male able-bodied “militia” States, particular may, Cession under age ... years citizen become Congress, Acceptance and the years” residing in the Dis- age of 45 of the United Government the Seat trict, 49-401, which includes D.C.Code I, § cl. 17. Art. States.” U.S. Const. “designated division “organized” explained O’Do- Supreme As the District of Co- the National Guard of exclu- object grant noghue, “The lumbia,” § 49-406. Neverthe- D.C.Code ... over the district legislation sive less, in that its again unique District is sense, city highest national component of the essentially “is city, organized grant became under Seegars, government.” federal district, state, of a of a but not of a is, That it is controlled F.Supp.2d at 241. 539^0; 53 nation.” and acts government the federal omitted). (internal quotations and citations Executive on the of the President.14 order capi- words, In other the District “the 11,485 Secretary of authorizes itself Order the Union very tal—the heart —of ("The subject 7-2502.02(a)(4), not be enrolled militia shall § the District is D.C.Code 7-2502.02(a)(4) any duty except into the service § when called a "State” and D.C.Code States, unincorporated or to the civil author- legislation of the United aid state to which the suppres- laws or apply. ities the execution Second does not ("Whenever riots.”); § id. 49-405 sion of any portion necessary to call out shall shall be 14. "The of the United States President militia the Commander-in-Chief of the militia enrolled be the Commander-in-Chief otherwise, out, by § draft or 49- shall order D.C.Code the District of Columbia.” many required.”). added); accept as § as volunteers (emphasis id. 49-404 see also Department guarantee of Defense that “the the United States of the “supervise, Arms, administer and control” the keep and bear shall not be infring- District’s National Guard “while militia ed” to the relates Militia of the States status” and to “order out National only. That the Second Amendment does ... civil Guard to aid the authorities District, then, is, me, not apply to the Exec. No. District of Columbia.” Order unavoidable conclusion. (Oct. 11,485, 15,411 § Fed.Reg. reasons, For foregoing I would af- 1969). provides The Executive also Order firm the district court’s dismissal of Hel- “Commanding General ler’s challenge Second Amendment to sec- Adjutant General of the National Guard 7-2502.02(a)(4) tion for failure to state President,” appointed by will be id. claim for relief under Federal Rule of Civil 3, § Commanding and that General 12(b)(6). Procedure I affirm would its dis- Defense,” report Secretary “shall missal of the other appellants’ five claims 301(a)—(b) 1;§ § id. see also D.C.Code 49— as well as Heller’s other claims for lack of (“There appointed shall be and commis standing under Federal Rule of Civil Pro- sioned the President of the United 12(b)(1). cedure I Accordingly, respectful- a Commanding States General of the mili ly dissent. tia of the District of Columbia .... [T]he Commanding General of the militia of the

District of Columbia shall be considered to an employee Department

be of the of De

fense.”). Unlike State Governor who can

mobilize civil unr during the State

est,15 Mayor of the District must re

quest the President mobilize the Dis (“[I]t § trict’s militia. D.C.Code 49-103 BAILEY, Appellant Vanessa Mayor shall lawful for the the Dis trict of ... Columbia to call on the Com POTTER, E. John Postmaster General ... in suppressing

mander-in-Chief to aid of the United Postal laws; States ... enforcing violence and Service, Appellee. thereupon Commander-in-Chief shall or out portion der so much and such No. 05-5454. may necessary sup militia as he deem ”). press generally Appeals, the same .... United States Court of See See gars, 297 at F.Supp.2d (discussing District of Columbia Circuit. militia). structure of District’s Argued 2007. Jan. up, To sum is no dispute there March 2007. Decided Constitution, applicable case law and stat utes all establish that the District is not a meaning within the

State

Amendment. v. Mil Under United States

ler,

Second Amendment’s declaration See, 7.211(a) ("The e.g., [wjeapons 4 Pa.Code Gover the National Guard will carried peacekeep bayonets nor will retain command of State not be loaded nor will be fixed with disorder.") Governor.”) (em ing during (emphasis specific forces a civil out the order of the added), (d) ("In disorder, added). phasis the event of ...

Case Details

Case Name: Parker v. District of Columbia

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Mar 9, 2007

Citation: 478 F.3d 370

Docket Number: 04-7041

Court Abbreviation: D.C. Cir.