Tomorrow the Supreme Court will hear oral argument in District of Columbia v. Heller. The justices are expected to rule on whether the Second Amendment allows an individual right to bear arms or reserves that right to militias. Below are excerpts from some of the dozens of briefs filed on both sides.
Monday, March 17, 2008
In 1976, the Council of the District of Columbia concluded that existing laws did not adequately curb gun-related violence. As a consequence, it enacted a comprehensive new law regulating firearms. The principal provision at issue here prohibits most residents from registering (and thus possessing) any pistol not registered before the law became effective. . . . The Council targeted handguns because they . . . were used in 88% of armed robberies and 91% of armed assaults. In 1974, handguns were used to commit 155 of 285 murders in the District. In the same year, every rapist in the District who used a firearm to facilitate his crime used a handgun.
The Council . . . found that guns 'are more frequently involved in deaths and violence among relatives and friends than in premeditated criminal activities,' and that many 'murders are committed by previously law-abiding citizens, in situations where spontaneous violence is generated by anger, passion, or intoxication.' The Council also focused on the link between handguns and accidental deaths and injuries, particularly to young children who can wield only smaller weapons: of the '[c]lose to 3,000 accidental deaths . . . caused by firearms' annually, children were particularly vulnerable -- ' 1/4 of the victims are under 14 years of age.' . . . The legislature concluded that 'the ultimate resolution of the problems of gun created crimes and gun created accidents . . . is the elimination of the availability of handguns.' The Council thus chose to 'freez[e] the pistol . . . population within the District of Columbia.' As the Council summed up, 'the bill reflects a legislative decision' that handguns 'have no legitimate use in the purely urban environment of the District of Columbia.'
-- from the brief of the District of Columbia
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As the court of appeals correctly held, the Second Amendment protects an individual right to possess firearms, including for private purposes unrelated to militia operations. But like other constitutional rights, that individual right is subject to reasonable restrictions, must be applied in light of context and history, and does not provide any protections to individuals who have never been understood to be within the Amendment's protections. The D.C. laws at issue here ban a commonly-used and commonly-possessed firearm. The ban is not unconstitutional just because it takes a categorical approach, but it is subject to heightened judicial scrutiny.
This Court should affirm the court of appeals' threshold determination that the Second Amendment protects an individual right, but it should adopt a more flexible standard of review.
-- from the brief for the United States
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Even pro-gun advocates recognize that handguns are not well-suited for self-defense. Firearms expert Chris Bird has explained that a handgun 'is the least effective firearm for self defense' and in almost all situations 'shotguns and rifles are much more effective in stopping a [criminal].' . . . [and] '[a] handgun is the hardest firearm to shoot accurately.' Because of their smaller size and shape, which allows them to be concealed and carried easily, handguns -- compared with larger shotguns and rifles that are designed to be held with two hands -- require a greater degree of dexterity.
The difficulty of shooting a handgun accurately is substantially compounded when an individual is faced with a life-threatening situation. Even a well-trained shooter will experience dramatic physiological effects in response to mortal danger. Commonly known as the 'fight-or-flight reflex,' and accompanied by an enormous surge in adrenaline . . . the resulting effects include the loss of fine motor skills, tunnel vision, auditory exclusion, trembling, and loss of control of bodily functions. . . . The effect of these unavoidable physiological changes is profound. A handgun owner faced with the 'fight-or-flight reflex' is less likely to be able to manipulate his handgun effectively for self-defense, but he also is more likely to endanger himself, his family, and other innocent bystanders.
-- from the brief by the Violence Policy Center and the police chiefs of Los Angeles, Minneapolis and Seattle
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Domestic violence is a pervasive societal problem that affects a significant number of women and children each year. Correctly recognized as a national crisis, domestic violence accounts for a significant portion of all violence against women and children. . . . [D]omestic violence accounts for between one-third and almost one-half of the female murders in the United States. These murders are most often committed by intimate partners with handguns. And . . . batterers also use handguns to threaten, intimidate, and coerce victims.
Handguns empower batterers and provide them with deadly capabilities, exacerbating an already pervasive problem.
-- from the brief compiled by a multistate group of coalitions against domestic violence
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This case provides the Court an opportunity to advance the ability of women to free themselves from being subject to another's ill will and to counter the commonly-held prejudice that women are 'easier targets' simply because of their gender characteristics. Violence against women in the United States is endemic, often deadly, and most frequently committed by men superior in physical strength to their female victims.
The District's current prohibition against handguns and immediately serviceable firearms in the home effectively eliminates a woman's ability to defend her very life and those of her children against violent attack. Women are simply less likely to be able to thwart violence using means currently permitted under D.C. law. Women are generally less physically strong, making it less likely that most physical confrontations will end favorably for women. Women with access to immediately disabling means, however, have been proven to benefit from the equalization of strength differential a handgun provides. Women's ability to own such serviceable firearms is indeed of even greater importance given the holdings of both federal and state courts that there is no individual right to police protection. . . .
Effectively banning the possession of handguns ignores biological differences between men and women, and in fact allows gender-inspired violence free rein.
-- from the brief of 126 female legislators and academics
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Congress has historically viewed the Second Amendment as protecting from infringement the right of the people at large to keep and bear arms. It has further regarded ordinary, commonly-possessed rifles, handguns, and shotguns to be constitutionally protected arms. It has also passed regulations for engaging in firearms businesses and to require background checks on firearm transferees, and has restricted certain dangerous categories of persons from possession of firearms. None of these laws is called into question by the lower court's limited holding.
The standard for whether a right is 'fundamental' is whether it is 'explicitly or implicitly protected by the Constitution, thereby requiring strict judicial scrutiny.' The right of the people to keep arms is obviously such a right. Yet even if this Court applied a lower 'reasonableness' test as the standard of review, the District's handgun ban is unreasonable on its face. The lower court's categorical approach in holding a prohibition on handguns to be unconstitutional per se was correct.
Where Congress has sought to restrict certain firearms, some of which may have other characteristics which overlap with handguns, it has defined them in terms of specific categories. A holding by this Court that the District's pistol ban violates the Second Amendment would not apply to such firearms which are restricted under other categories.
This case involves nothing more than the right of law-abiding persons to keep common handguns and usable firearms for lawful self-defense in the home. Accordingly, no purpose would be served by remanding this case for further fact finding or other proceedings.
-- from the brief filed by 55 members of the Senate; the president of the Senate, Vice President Cheney; and 255 members of the House of Representatives
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If private gun ownership were a natural-law right inherited from our colonial mother country, the laws of other Nations sharing our heritage should treat individual gun ownership as a protected activity. But those well-governed, democratic Nations extensively regulate and limit firearm ownership in the service of public safety. . . . [T]he Second Amendment has its origins in the uniquely American tradition of federalism -- and the unique role of state militias in this Nation's early history -- not in some prior common law tradition.
Confronted with the destructive and unlawful use of pistols, England has banned handguns altogether. . . . Parliament has banned semi-automatic rifles, pump-action rifles, and regulated shotguns for decades. And in 1996, after a licensed gun owner massacred 16 school children, Parliament passed a near total ban on handguns. Thus, the Nation that brought us both Blackstone and the English Bill of Rights bans handguns.
Indeed, although the English Bill of Rights remains in effect today, it has not prevented Parliament from enacting regulations that parallel the ones at issue here.
-- from the brief filed by the American Jewish Committee, Anti-Defamation League, Baptist Peace Fellowship of North America and more than two dozen other religious and civic groups
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To limit the right to keep and bear arms to a state regulated militia is to disregard what the Framers understood -- that individual possession of arms is essential to preventing usurpation by the state.
During the 20th Century, more than 70 million people were slaughtered on a massive scale by their own governments after first being disarmed. This pattern repeated itself in Ottoman Turkey (1915-17), the Soviet Union (1929-45), Nazi Germany and Occupied Europe (1933-1945), Nationalist China (1927-1949), Communist China (1949-52, 1957-60, and 1966-70), Guatemala (1960-81), Uganda (1971-79), Cambodia (1975-79) and Rwanda (1994) just to name a few.
In many cases, firearm confiscation followed only after the groundwork was laid by purportedly 'reasonable' regulation and registration of firearms. History illustrates just how readily the standardless 'reasonable' regulation of firearms invites large scale abuse by the state and ultimately paves the way for wholesale confiscation of arms and the mass slaughter of the disarmed.
-- from the brief of Jews for the Preservation of Firearms Ownership
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The District of Columbia Metropolitan Police Department has failed to provide adequate police services to the District of Columbia's citizens. The District is consistently a national leader in various crime categories while simultaneously demonstrating inability to adapt or change under the crippling bureaucracy endemic to the District. Compounding this deadly combination of high crime and inflexibility are constant examples of corruption, incompetence and outright misfeasance in the operation of the department. . . . Since the 30-plus year old implementation of what amounts to a complete ban on owning, carrying or using firearms for self-defense, the MPD has cycled through new chiefs and precinct commanders with depressing frequency. The only constant within the department has been the incompetence, corruption, cronyism and failure to perform the most basic duty of a police department -- to protect and serve.
The jaded citizens of the District have essentially given up on the police and the administration, resigning themselves to living as victims -- or as outlaws, for those who choose to defend themselves despite the D.C. Gun Ban. The unavoidable result of the D.C. Gun Ban is that it is the victims, not the criminals, who are disarmed and rendered helpless.
-- from the brief of the Buckeye Firearms Foundation and a variety of private investigation services
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Laws that prevent the use of firearms for self-defense in one's own home disproportionately impact those individuals who are targets of hate violence due to their minority status, whether defined by race, religion, sexual orientation, or other characteristic. Even in their homes, LGBT individuals are at risk of murder, aggravated assault and other forms of hate violence because of their sexual orientation. In fact, the home is the most common site of anti-gay violence. Thus, for certain [lesbian, gay, bisexual or transgendered] individuals, the possession of firearms in the home is essential for a sense of personal security -- a fact generally lost in the majoritarian debate about restricting individual's access to, and use of, firearms. . . . [N]ot only do members of the LGBT community have a heightened need to possess firearms for self-protection in their homes, the Second Amendment clearly guarantees this most basic right. . . .
Indeed, Petitioners' arguments seeking to limit the right to keep and bear arms to persons who are actively serving in militias would produce absurd results irreconcilable with the purpose of the Bill of Rights and the plain language of the Second Amendment. Interpreting the Second Amendment as recognizing a right conditioned upon military service, where eligibility for military service is defined by the Government, prevents the Amendment from acting as any constraint on Government action at all. Such a result is contrary not only to the literal text of the Amendment, but to the intentions of the Framers. Further, in light of the current "Don't Ask, Don't Tell" policy, such an interpretation would completely eradicate any Second Amendment right for members of the LGBT community.
-- from the brief of Pink Pistols, an advocacy group for gay and transgendered gun owners
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The Second Amendment reads: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Under longstanding linguistic principles that were well understood and recognized at the time the Second Amendment was adopted, the "well regulated Militia" clause necessarily adds meaning to the "keep and bear Arms" clause by furnishing the reason for the latter's existence. The first clause is what linguists call an "absolute construction" or "absolute clause." It functions by melding the sentence "A well regulated Militia is necessary to the security of a free State" together with the sentence "The right of the people to keep and bear Arms shall not be infringed" to express this thought: "Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed." On its face, the language of the Amendment tells us that the reason why the right of the people to keep and bear arms shall not be infringed is because a well regulated militia is necessary to the security of a free State. The purpose of the Second Amendment, therefore, is to perpetuate "a well regulated Militia."
-- from the brief for professors of linguistics and English Dennis E. Baron, Richard W. Bailey, and Jeffrey P. Kaplan
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Handgun prohibition is simply not effective to produce good and valuable effects in society. Handgun prohibitions such as those enacted by the City Council of the District of Columbia appear to be effective only at removing from law-abiding citizens the best means of protecting themselves, their loved ones and others from violent criminals. The District's 30-year social experiment with handgun prohibition has, if anything, illustrated this sad fact. Rather than becoming safer, our Nation's Capital has unfortunately become known as the 'murder capital' of the United States, one of the most violent cities in the country. In light of the District's gun prohibitions, there is little that the residents can realistically do but hope that they do not become victims themselves.
This case involves various statistics and differing analyses of those statistics. But, in the end, the reality is that the District is claiming that its gun laws -- the most restrictive gun prohibitions in the Nation -- have been effective in reducing violent crime when, among other things:
-- since the implementation of the 1977 ban, the District's murder rate has only once fallen below what it was in 1976;
-- since 1977, there have been only four years when the District's violent crime rate fell below the rate in 1976; and
-- in an incredible 15 years that the ban has been in place the District has ranked #1 or #2 in murders; in four of those years it was #4.
-- from the brief of the Claremont Institute and various criminologists, social scientists and scholars
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A well-regulated militia -- whether ad hoc or as part of our organized military -- depends on recruits who have familiarity and training with firearms -- rifles, pistols and shotguns. Amici suggest that the Second Amendment ensures both the individual's right to possess firearms, subject to reasonable regulation, and the constitutional goal of collective defense readiness. Based on decades of military experience, amici have concluded that the District of Columbia's Gun Law directly interferes with various Acts of Congress aimed at enhancing the national defense by promoting martial training amongst the citizenry.
For over a century, Congress has authorized and funded programs to promote the marksmanship of young Americans so that they might make the transition from civilian to military life more effectively and at less cost to our national defense. This pre-military training has become an integral part of national defense aimed at preparing, as civilians, 'every ablebodied male [and female].' The D.C. Gun Law, by barring individuals from owning handguns and using other firearms at reasonable times and places, is inconsistent with these congressional mandates and, when enacted in 1976, impeded the Department of the Army's Civilian Marksmanship program.
-- from the brief of several retired military officers and the American Hunters and Shooters Association
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