D.C. Files Brief in <I>Heller</I> Case

On January 4, the District of Columbia filed its brief in District of Columbia v. Heller, now before the U.S. Supreme Court. The District is appealing the U.S. Court of Appeals for the District of Columbia Circuit's ruling that found D.C.'s bans on handguns, on having any gun assembled for use within the home, and on carrying a firearm within the home without a permit, violate the Second Amendment. 

In March 2007, the Court of Appeals ruled that the amendment protects a "pre-existing right to keep and bear arms . . . premised on the commonplace assumption that individuals would use them for these private purposes [including self-defense], in addition to whatever militia service they would be obligated to perform for the state." And it found that handguns are the kinds of "arms" the ownership of which the amendment protects.  

The District wrongly contended that the amendment "protects the possession and use of guns only in service of an organized militia," and that James Madison and others responsible for the amendment considered that "keep," "bear" and "arms" referred to the maintenance and use of firearms for militia purposes alone. 

The District claimed that "keep" means either for an individual to possess guns only for militia purposes, or for a state to "keep up" a militia, a theory the Court of Appeals said "mocks usage, syntax, and common sense." The Court of Appeals added, "Such outlandish views are likely advanced because the plain meaning of 'keep' strikes a mortal blow to the collective right theory." 

The District furthered argued that it is not subject to the Second Amendment because the Supreme Court ruled in Presser v. Illinois (1886) that the amendment "is a limitation only upon the power of Congress and the National government" and, according to the District, does not limit the states. The District, despite its longstanding wish to the contrary, is not a state, and is therefore obviously subject to the amendment. The District also ignores the Supreme Court's comment in Presser that because "all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States," the states "cannot ... prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security ...."  (The application of the amendment to actual states, rather than would-be states, is not an issue in this case.)   

The District noted that the Supreme Court, in U.S. v. Miller (1939), suggested that the amendment protects arms that are "part of the ordinary military equipment," but apparently failed to comprehend that modern handguns are commonly issued to military personnel and are also useful for another of the potential duties of the militia, namely, law enforcement.  

As if looking for even more ways to undercut its case, the District also claimed that in the mid-1970s it "sensibly concluded" that gun bans would make the city safer. Of course, as is well known, the city's murder rate tripled within 15 years after D.C. imposed the ban.