Parker v. District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 7, 2006 Decided March 9, 2007

No. 04-7041

SHELLY PARKER, ET AL.,

APPELLANTS

v.

DISTRICT OF COLUMBIA AND

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

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 03cv00213)

Alan Gura argued the cause for appellants. With him on the

briefs were Robert A. Levy and Clark M. Neily, III.

Greg Abbott, Attorney General, Attorney General’s Office

of State of Texas, R. Ted Cruz, Solicitor General, Troy King,

Attorney General, Attorney General’s Office of State of

Alabama, Mike Beebe, Attorney General, Attorney General’s

Office of the State of Arkansas, John W. Suthers, Attorney

General, Attorney General’s Office of the State of Colorado,

Charles J. Crist, Jr., Attorney General, Attorney General’s

Office of the State of Florida, Thurbert E. Baker, Attorney

General, Attorney General’s Office of the State of Georgia,

2

Michael A. Cox, Attorney General, Attorney General’s Office of

the State of Michigan, Mike Hatch, Attorney General, Attorney

General’s Office of the State of Minnesota, Jon Bruning,

Attorney General, Attorney General’s Office of the State of

Nebraska, Wayne Stenehjem, Attorney General, Attorney

General’s Office of the State of North Dakota, Jim Petro,

Attorney General, Attorney General’s Office of the State of

Ohio, Mark L. Shurtleff, Attorney General, Attorney General’s

Office of the State of Utah, and Patrick J. Crank, Attorney

General, Attorney General’s Office of the State of Wyoming,

were on the brief for amici curiae States of Texas, et. al. in

support of appellants.

Don B. Kates and Daniel D. Polsby were on the brief for

amici curiae Professors Frederick Bieber, et al. and organization

amici curiae Second Amendment Foundation, et al.

Stefan Bijan Tahmassebi was on the brief for amicus curiae

Congress of Racial Equality, Inc. in support of appellants

seeking reversal.

Peter J. Ferrara was on the brief for amicus curiae

American Civil Rights Union in support of appellants.

Robert Dowlut was on the brief for amicus curiae National

Rifle Association Civil Rights Defense Fund in support of

appellants seeking reversal.

Todd S. Kim, Solicitor General, Office of Attorney General

for the District of Columbia, argued the cause for appellees.

With him on the brief were Robert J. Spagnoletti, Attorney

General, Edward E. Schwab, Deputy Solicitor General, and Lutz

Alexander Prager.

3

Ernest McGill, pro se, was on the brief for amicus curiae

Ernest McGill in support of appellees.

Thomas F. Reilly, Attorney General, Attorney General’s

Office of Commonwealth of Massachusetts, Glenn S. Kaplan,

Assistant Attorney General, J. Joseph Curran, Jr., Attorney

General, Attorney General’s Office of the State of Maryland,

Zulima V. Farber, Attorney General, Attorney General’s Office

of the State of New Jersey, were on the brief for amici curiae

Commonwealth of Massachusetts, et al. in support of appellees.

John Hogrogian, Attorney, Corporation Counsel's Office of City

of New York, and Benna Ruth Solomon, Deputy Corporation

Counsel, Office of the Corporation Counsel of the City of

Chicago, entered appearances.

Andrew L. Frey, David M. Gossett, Danny Y. Chou, Deputy

City Attorney, Office of the City Attorney of the City and

County of San Francisco, and John A. Valentine, were on the

brief for amici curiae The Brady Center to Prevent Gun

Violence, et al. in support of appellees. Eric J. Mogilnicki

entered an appearance.

Before: HENDERSON and GRIFFITH, Circuit Judges, and

SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

SILBERMAN.

Dissenting opinion filed by Circuit Judge HENDERSON.

SILBERMAN, Senior Circuit Judge: Appellants contest the

district court’s dismissal of their complaint alleging that the

District of Columbia’s gun control laws violate their Second

Amendment rights. The court held that the Second Amendment

(“A well regulated Militia, being necessary to the security of a

4

free State, the right of the people to keep and bear Arms, shall

not be infringed”) does not bestow any rights on individuals

except, perhaps, when an individual serves in an organized

militia such as today’s National Guard. We reverse.

I

Appellants, six residents of the District, challenge D.C.

Code § 7-2502.02(a)(4), which generally bars the registration of

handguns (with an exception for retired D.C. police officers);

D.C. Code § 22-4504, which prohibits carrying a pistol without

a license, insofar as that provision would prevent a registrant

from moving a gun from one room to another within his or her

home; and D.C. Code § 7-2507.02, requiring that all lawfully

owned firearms be kept unloaded and disassembled or bound by

a trigger lock or similar device. Shelly Parker, Tracey Ambeau,

Tom G. Palmer, and George Lyon want to possess handguns in

their respective homes for self-defense. Gillian St. Lawrence

owns a registered shotgun, but wishes to keep it assembled and

unhindered by a trigger lock or similar device. Finally, Dick

Heller, who is a District of Columbia special police officer

permitted to carry a handgun on duty as a guard at the Federal

Judicial Center, wishes to possess one at his home. Heller

applied for and was denied a registration certificate to own a

handgun. The District, in refusing his request, explicitly relied

on D.C. Code § 7-2502.02(a)(4).

Essentially, the appellants claim a right to possess what they

describe as “functional firearms,” by which they mean ones that

could be “readily accessible to be used effectively when

necessary” for self-defense in the home. They are not asserting

a right to carry such weapons outside their homes. Nor are they

challenging the District’s authority per se to require the

registration of firearms.

5

Appellants sought declaratory and injunctive relief pursuant

to 28 U.S.C. §§ 2201, 2202, and 42 U.S.C. § 1983, but the court

below granted the District’s motion to dismiss on the grounds

that the Second Amendment, at most, protects an individual’s

right to “bear arms for service in the Militia.” (The court did

not refer to the word “keep” in the Second Amendment.) And,

by “Militia,” the court concluded the Second Amendment

referred to an organized military body—such as a National

Guard unit.

II

After the proceedings before the district judge, we decided

Seegars v. Gonzales, 396 F.3d 1248 (D.C. Cir. 2005). We held

that plaintiffs bringing a pre-enforcement challenge to the

District’s gun laws had not yet suffered an injury-in-fact and,

therefore, they lacked constitutional standing. Although

plaintiffs expressed an intention to violate the District’s gun

control laws, prosecution was not imminent. We thought

ourselves bound by our prior decision in Navegar, Inc. v. United

States, 103 F.3d 994 (D.C. Cir. 1997), to conclude that the

District’s general threat to prosecute violations of its gun laws

did not constitute an Article III injury. Navegar involved a pre-

enforcement challenge by a gun manufacturer to certain

provisions of the Violent Crime Control and Law Enforcement

Act of 1994, which prohibited the manufacture (and possession)

of semiautomatic assault weapons. We held then that the

manufacturers whose products the statute listed eo nomine had

standing to challenge the law in question because the effect of

the statute was to single out individual firearms purveyors for

prosecution. Id. at 999. However, manufacturers whose

products were described solely by their characteristics had no

pre-enforcement standing because the threat of prosecution was

shared among the (presumably) many gun manufacturers whose

products fit the statutory description, and, moreover, it was not

6

clear how these descriptive portions of the statute would be

enforced. Id. at 1001.

In Navegar, then, the “factor . . . most significant in our

analysis” was “the statute’s own identification of particular

products manufactured only by appellants” because that

indicated a “special priority” for preventing specified parties

from engaging in a particular type of conduct. Id. Extending

Navegar’s logic to Seegars, we said the Seegars plaintiffs were

required to show that the District had singled them out for

prosecution, as had been the case with at least one of the

manufacturer plaintiffs in Navegar. Since the Seegars plaintiffs

could show nothing more than a general threat of prosecution by

the District, we held their feared injury insufficiently imminent

to support Article III standing. 396 F.3d at 1255-56.

We recognized in Seegars that our analysis in Navegar was

in tension with the Supreme Court’s treatment of a pre-

enforcement challenge to a criminal statute that allegedly

threatened constitutional rights. See id. (citing Babbitt v. United

Farm Workers Nat’l Union, 442 U.S. 289 (1979)). In United

Farm Workers, the Supreme Court addressed the subject of pre-

enforcement challenges in general terms:

When the plaintiff has alleged an intention to engage in

a course of conduct arguably affected with a

constitutional interest, but proscribed by a statute, and

there exists a credible threat of prosecution thereunder,

he “should not be required to await and undergo a

criminal prosecution as the sole means of seeking

relief.”

442 U.S. at 298 (quoting Doe v. Bolton, 410 U.S. 179, 188

(1973)). The unqualified language of United Farm Workers

would seem to encompass the claims raised by the Seegars

7

plaintiffs, as well as the appellants here. Appellants’ assertions

of Article III standing also find support in the Supreme Court’s

decision in Virginia v. American Booksellers Ass’n, 484 U.S.

383 (1988), which allowed a pre-enforcement challenge to a

Virginia statute criminalizing the display of certain types of

sexually explicit material for commercial purposes. In that case,

the Court held it sufficient for plaintiffs to allege “an actual and

well-founded fear that the law will be enforced against them,”

id. at 393, without any additional requirement that the

challenged statute single out particular plaintiffs by name.1 In

both United Farm Workers and American Booksellers, the

Supreme Court took a far more relaxed stance on pre-

enforcement challenges than Navegar and Seegars permit.

Nevertheless, unless and until this court en banc overrules these

recent precedents, we must be faithful to Seegars just as the

majority in Seegars was faithful to Navegar.

1

Of course, American Booksellers can be distinguished from

Navegar, Seegars, and the present case, on the ground that the

constitutional challenge at issue there implicated the First (as opposed

to the Second) Amendment. The American Booksellers Court was

concerned that Virginia’s statute might chill speech without any

prosecution ever taking place, 484 U.S. at 393, thereby creating a

wrong without remedy if pre-enforcement standing were denied. But

in deciding whether to privilege one amendment to the U.S.

Constitution over another in assessing injury-in-fact, we note the

statement of our dissenting colleague in Seegars: “I know of no

hierarchy of Bill of Rights protections that dictates different standing

analysis.” 396 F.3d at 1257 (Sentelle, J., dissenting). The Seegars

majority, although it felt constrained by Navegar to reach a different

result, tacitly agreed with Judge Sentelle’s assessment that the injury-

in-fact requirement should be applied uniformly over the First and

Second Amendments (and presumably all other constitutionally

protected rights). Id. at 1254.

8

Applying Navegar-Seegars to the standing question in this

case, we are obliged to look for an allegation that appellants here

have been singled out or uniquely targeted by the D.C.

government for prosecution. No such allegation has been made;

with one exception, appellants stand in a position almost

identical to the Seegars plaintiffs. Appellants attempt to

distinguish their situation from that of the Seegars plaintiffs by

pointing to “actual” and “specific” threats, Appellants’ Br. at 21,

lodged against appellants by D.C. during the course of the

district court litigation. But this is insufficient. None of the

statements cited by appellants expresses a “special priority” for

preventing these appellants from violating the gun laws, or a

particular interest in punishing them for having done so. Rather,

the District appears to be expressing a sentiment ubiquitous

among stable governments the world over, to wit, scofflaws will

be punished.

The noteworthy distinction in this case—a distinction

mentioned in appellants’ complaint and pressed by them on

appeal—is that appellant Heller has applied for and been denied

a registration certificate to own a handgun, a fact not present in

Seegars. The denial of the gun license is significant; it

constitutes an injury independent of the District’s prospective

enforcement of its gun laws, and an injury to which the stringent

requirements for pre-enforcement standing under Navegar and

Seegars would not apply. Since D.C. Code § 22-4504

(prohibition against carrying a pistol without a license) and D.C.

Code § 7-2507.02 (disassembly/trigger lock requirement) would

amount to further conditions on the certificate Heller desires,

Heller’s standing to pursue the license denial would subsume

these other claims too.

This is not a new proposition. We have consistently treated

a license or permit denial pursuant to a state or federal

administrative scheme as an Article III injury. See, e.g., Cassell

9

v. F.C.C., 154 F.3d 478 (D.C. Cir. 1998) (reviewing denial of

license application to operate private land mobile radio service);

Wilkett v. I.C.C., 710 F.2d 861 (D.C. Cir. 1983) (reviewing

denial of application for expanded trucking license); see also

City of Bedford v. F.E.R.C., 718 F.2d 1164, 1168 (D.C. Cir.

1983) (describing wrongful denial of a preliminary hydroelectric

permit as an injury warranting review). The interests injured by

an adverse licensing determination may be interests protected at

common law, or they may be created by statute. And of course,

a licensing decision can also trench upon constitutionally

protected interests, see, e.g., Dist. Intown Props. Ltd. P’ship v.

District of Columbia, 198 F.3d 874 (D.C. Cir. 1999) (reviewing

District of Columbia’s denial of a building permit under the

Takings Clause); Berger v. Bd. of Psychologist Exam’rs, 521

F.2d 1056 (D.C. Cir. 1975) (reviewing District of Columbia’s

denial of a license to practice psychology under the Due Process

Clause), which will also give rise to Article III injury.

At oral argument, counsel for the District maintained that

we should not view this as a licensing case for standing purposes

because D.C.’s firearm registration system amounts to a

complete prohibition on handgun ownership. The District

argues that we must analyze appellants’ standing exclusively

under our pre-enforcement precedents, Seegars and Navegar.

We disagree on both counts. The District does not completely

prohibit handgun registration. See D.C. Code § 7-2502.02(a)(4)

(allowing certificates for pistols already registered in the District

prior to 1976); D.C. Code § 7-2502.02(b) (excluding retired

police officers of the Metropolitan Police Department from the

ban on pistol registration). Had Heller been a retired police

officer, presumably the District would have granted him a

registration certificate. The same would be true if Heller had

attempted to register a long gun, as opposed to a handgun. In

any event, Heller has invoked his rights under the Second

Amendment to challenge the statutory classifications used to bar

10

his ownership of a handgun under D.C. law, and the formal

process of application and denial, however routine, makes the

injury to Heller’s alleged constitutional interest concrete and

particular. He is not asserting that his injury is only a threatened

prosecution, nor is he claiming only a general right to handgun

ownership; he is asserting a right to a registration certificate, the

denial of which is his distinct injury.

We note that the Ninth Circuit has recently dealt with a

Second Amendment claim by first extensively analyzing that

provision, determining that it does not provide an individual

right, and then, and only then, concluding that the plaintiff

lacked standing to challenge a California statute restricting the

possession, use, and transfer of assault weapons. See Silveira v.

Lockyer, 312 F.3d 1052, 1066-67 & n.18 (9th Cir. 2003). We

think such an approach is doctrinally quite unsound. The

Supreme Court has made clear that when considering whether

a plaintiff has Article III standing, a federal court must assume

arguendo the merits of his or her legal claim. See Warth v.

Seldin, 422 U.S. 490, 501-02 (1975) (assuming factual

allegations and legal theory of complaint for purposes of

standing analysis). We have repeatedly recognized that

proposition. See Waukesha v. E.P.A., 320 F.3d 228, 235 (D.C.

Cir. 2003); Am. Fed’n of Gov’t Employees, AFL-CIO v. Pierce,

697 F.2d 303, 305 (D.C. Cir. 1982). “Indeed, in reviewing the

standing question, the court must be careful not to decide the

questions on the merits for or against the plaintiff, and must

therefore assume that on the merits the plaintiffs would be

successful in their claims.” Waukesha, 320 F.3d at 235 (citing

Warth, 422 U.S. at 502). This is no less true when, as here, the

merits involve the scope of a constitutional protection.

Still, we have not always been so clear on this point.

Although we recognized in Claybrook v. Slater, 111 F.3d 904

(D.C. Cir. 1997), that it was not necessary for a plaintiff to

11

demonstrate that he or she would prevail on the merits in order

to have Article III standing, the rest of our discussion seems

somewhat in tension with that proposition. We did recognize

that in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61

(1992), when the Supreme Court used the phrase “legally

protected interest” as an element of injury-in-fact, it made clear

it was referring only to a “cognizable interest.” Claybrook, 111

F.3d at 906-07. The Court in Lujan concluded that plaintiffs had

a “cognizable interest” in observing animal species without

considering whether the plaintiffs had a legal right to do so. Id.

(citing Lujan, 504 U.S. at 562-63). We think it plain the Lujan

Court did not mean to suggest a return to the old “legal right”

theory of standing rejected in Association of Data Processing

Service Organizations, Inc. v. Camp, 397 U.S. 150, 153-54

(1970), because it cited Warth, inter alia, as precedent for the

sentence which included the phrase “legally protected interest.”

Lujan, 504 U.S. at 560. Rather, the cognizable interest to which

the Court referred would distinguish, to pick one example, a

desire to observe certain aspects of the environment from a

generalized wish to see the Constitution and laws obeyed.

Indeed, in Judicial Watch, Inc. v. United States Senate, 432 F.3d

359 (D.C. Cir. 2005), Judge Williams wrote an extensive

concurring opinion (not inconsistent with the majority opinion)

in which he persuasively explains that the term “legally

protected interest,” as used in Lujan, could not have been

intended to deviate from Warth’s general proposition that we

assume the merits when evaluating standing. Id. at 363-66.

In Claybrook, we went on to say, quite inconsistently, that

“if the plaintiff’s claim has no foundation in law, he has no

legally protected interest and thus no standing to sue.”

Claybrook, 111 F.3d at 907. We concluded that plaintiff lacked

standing, however, because the government agency in that case

had unfettered discretion to take the action it did, and therefore

there was “no law to apply.” Id. at 908. Thus the decision in

12

Claybrook was actually based on a separate jurisdictional

ground—reviewability under the Administrative Procedure

Act—and federal courts may choose any ground to deny

jurisdiction, e.g., Article III standing, prudential standing, or

subject matter jurisdiction. See Judicial Watch, 432 F.3d at 366

(Williams, J., concurring) (noting that Claybrook is hard to

classify as a standing opinion). There is no hierarchy which

obliges a court to decide Article III standing issues before other

jurisdictional questions. In re Papandreou, 139 F.3d 247, 255-

56 (D.C. Cir. 1998). Therefore, we do not read Claybrook to

stand for the proposition, contra Warth, that we must evaluate

the existence vel non of appellants’ Second Amendment claim

as a standing question.2

In sum, we conclude that Heller has standing to raise his

§ 1983 challenge to specific provisions of the District’s gun

control laws.

III

As we noted, the Second Amendment provides:

A well regulated Militia, being necessary to the

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

and bear Arms shall not be infringed.

U.S. CONST. amend. II.

2

Admittedly, in Taylor v. F.D.I.C., 132 F.3d 753, 767 (D.C. Cir.

1997), we observed that the causation requirement of standing could

coincide with the causal element in a cause of action. But cf. id. at 770

(Rogers, J., concurring). Whether that was correct or not, we

concluded that even in that unique situation, not present here, we had

discretion to decide the case on the merits or on standing grounds. Id.

at 767-68.

13

The provision’s second comma divides the Amendment into

two clauses; the first is prefatory, and the second operative.

Appellants’ argument is focused on their reading of the Second

Amendment’s operative clause. According to appellants, the

Amendment’s language flat out guarantees an individual right

“to keep and bear Arms.” Appellants concede that the prefatory

clause expresses a civic purpose, but argue that this purpose,

while it may inform the meaning of an ambiguous term like

“Arms,” does not qualify the right guaranteed by the operative

portion of the Amendment.

The District of Columbia argues that the prefatory clause

declares the Amendment’s only purpose—to shield the state

militias from federal encroachment—and that the operative

clause, even when read in isolation, speaks solely to military

affairs and guarantees a civic, rather than an individual, right.

In other words, according to the District, the operative clause is

not just limited by the prefatory clause, but instead both clauses

share an explicitly civic character. The District claims that the

Second Amendment “protects private possession of weapons

only in connection with performance of civic duties as part of a

well-regulated citizens militia organized for the security of a

free state.” Individuals may be able to enforce the Second

Amendment right, but only if the law in question “will impair

their participation in common defense and law enforcement

when called to serve in the militia.” But because the District

reads “a well regulated Militia” to signify only the organized

militias of the founding era—institutions that the District

implicitly argues are no longer in existence today—invocation

of the Second Amendment right is conditioned upon service in

a defunct institution. Tellingly, we think, the District did not

suggest what sort of law, if any, would violate the Second

Amendment today—in fact, at oral argument, appellees’ counsel

asserted that it would be constitutional for the District to ban all

14

firearms outright. In short, we take the District’s position to be

that the Second Amendment is a dead letter.

We are told by the District that the Second Amendment was

written in response to fears that the new federal government

would disarm the state militias by preventing men from bearing

arms while in actual militia service, or by preventing them from

keeping arms at home in preparation for such service. Thus the

Amendment should be understood to check federal power to

regulate firearms only when federal legislation was directed at

the abolition of state militias, because the Amendment’s

exclusive concern was the preservation of those entities. At first

blush, it seems passing strange that the able lawyers and

statesmen in the First Congress (including James Madison)

would have expressed a sole concern for state militias with the

language of the Second Amendment. Surely there was a more

direct locution, such as “Congress shall make no law disarming

the state militias” or “States have a right to a well-regulated

militia.”

The District’s argument—as strained as it seems to us—is

hardly an isolated view. In the Second Amendment debate,

there are two camps. On one side are the collective right

theorists who argue that the Amendment protects only a right of

the various state governments to preserve and arm their militias.

So understood, the right amounts to an expression of militant

federalism, prohibiting the federal government from denuding

the states of their armed fighting forces. On the other side of the

debate are those who argue that the Second Amendment protects

a right of individuals to possess arms for private use. To these

individual right theorists, the Amendment guarantees personal

liberty analogous to the First Amendment’s protection of free

speech, or the Fourth Amendment’s right to be free from

unreasonable searches and seizures. However, some

15

entrepreneurial scholars purport to occupy a middle ground

between the individual and collective right models.

The most prominent in-between theory developed by

academics has been named the “sophisticated collective right”

model.3 The sophisticated collective right label describes

several variations on the collective right theme. All versions of

this model share two traits: They (1) acknowledge individuals

could, theoretically, raise Second Amendment claims against the

federal government, but (2) define the Second Amendment as a

purely civic provision that offers no protection for the private

use and ownership of arms.

The District advances this sort of theory and suggests that

the ability of individuals to raise Second Amendment claims

serves to distinguish it from the pure collective right model. But

when seen in terms of its practical consequences, the fact that

individuals have standing to invoke the Second Amendment is,

in our view, a distinction without a difference. But cf. United

States v. Emerson, 270 F.3d 203, 218-21 (5th Cir. 2001)

(treating the sophisticated collective right model as distinct from

the collective right theory). Both the collective and

sophisticated collective theories assert that the Second

Amendment was written for the exclusive purpose of preserving

state militias, and both theories deny that individuals qua

individuals can avail themselves of the Second Amendment

today. The latter point is true either because, as the District

appears to argue, the “Militia” is no longer in existence, or, as

3

See United States v. Parker, 362 F.3d 1279, 1284 (10th Cir.

2004); United States v. Price, 328 F.3d 958, 961 (7th Cir. 2003);

United States v. Emerson, 270 F.3d 203, 219 (5th Cir. 2001); Seegars

v. Aschcroft, 297 F. Supp. 2d 201, 218 (D.D.C. 2004); see also Robert

J. Cottrol & Raymond T. Diamond, The Fifth Auxiliary Right, 104

YALE L.J. 995, 1003-04 (1995).

16

others argue, because the militia’s modern analogue, the

National Guard, is fully equipped by the federal government,

creating no need for individual ownership of firearms. It

appears to us that for all its nuance, the sophisticated collective

right model amounts to the old collective right theory giving a

tip of the hat to the problematic (because ostensibly individual)

text of the Second Amendment.

The lower courts are divided between these competing

interpretations. Federal appellate courts have largely adopted

the collective right model.4 Only the Fifth Circuit has

interpreted the Second Amendment to protect an individual

right.5 State appellate courts, whose interpretations of the U.S.

4

See Silveira, 312 F.3d at 1092; Gillespie v. City of Indianapolis,

185 F.3d 693, 710 (7th Cir. 1999); United States v. Wright, 117 F.3d

1265, 1273-74 (11th Cir. 1997); United States v. Rybar, 103 F.3d 273,

286 (3d Cir. 1996); Love v. Pepersack, 47 F.3d 120, 122 (4th Cir.

1995); United States v. Hale, 978 F.2d 1016, 1019-20 (8th Cir. 1992);

United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977); United

States v. Warin, 530 F.2d 103, 106 (6th Cir. 1976); Cases v. United

States, 131 F.2d 916, 921-23 (1st Cir. 1942).

The District cites a decision in the Second Circuit, United States

v. Toner, 728 F.2d 115 (2d Cir. 1984), as holding that the Second

Amendment protects only a right related to “civic purposes.” The

District’s reliance on this case is plainly wrong. In Toner, the court

stated only that the Second Amendment right was not “fundamental.”

Id. at 128. The opinion in no way addressed the question whether the

Second Amendment requires that use and possession of a weapon be

for civic purposes. We are not aware of any Second Circuit decision

that directly addresses the collective versus individual nature of the

Second Amendment right. See Silveira, 312 F.3d at 1063 n.11 (noting

that only the Second and D.C. Circuits had yet to decide nature of

Second Amendment right).

5

Emerson, 270 F.3d at 264-65.

17

Constitution are no less authoritative than those of our sister

circuits, offer a more balanced picture.6 And the United States

Department of Justice has recently adopted the individual right

model. See Op. Off. of Legal Counsel, “Whether the Second

Amendment Secures an Individual Right” (2004) available at

http://www.usdoj.gov/olc/secondamendment2.pdf; see also

Memorandum from John Ashcroft, Attorney General, to All

United States’ Attorneys (Nov. 9, 2001), reprinted in Br. for the

United States in Opposition at 26, Emerson, 536 U.S. 907 (No.

01-8780). The great legal treatises of the nineteenth century

support the individual right interpretation, see Silveira v.

Lockyer, 328 F.3d 567, 583-85 (9th Cir. 2003) (Kleinfeld, J.,

dissenting from denial of rehearing en banc); Emerson, 270 F.3d

6

Of the state appellate courts that have examined the question, at

least seven have held that the Second Amendment protects an

individual right, see Hilberg v. F.W. Woolworth Co., 761 P.2d 236,

240 (Colo. Ct. App. 1988); Brewer v. Commonwealth, 206 S.W.3d

343, 347 & n.5 (Ky. 2006); State v. Blanchard, 776 So. 2d 1165, 1168

(La. 2001); State v. Nickerson, 247 P.2d 188, 192 (Mont. 1952);

Stillwell v. Stillwell, 2001 WL 862620, at *4 (Tenn. Ct. App. July 30,

2001); State v. Anderson, 2000 WL 122218, at *7 n.3 (Tenn. Crim.

App. Jan. 26, 2000); State v. Williams, 148 P.3d 993, 998 (Wash.

2006); Rohrbaugh v. State, 607 S.E.2d 404, 412 (W. Va. 2004),

whereas at least ten state appellate courts (including the District of

Columbia) have endorsed the collective right position, see United

States v. Sandidge, 520 A.2d 1057, 1058 (D.C. 1987); Commonwealth

v. Davis, 343 N.E.2d 847, 850 (Mass. 1976); In re Atkinson, 291

N.W.2d 396, 398 n.1 (Minn. 1980); Harris v. State, 432 P.2d 929, 930

(Nev. 1967); Burton v. Sills, 248 A.2d 521, 526 (N.J. 1968); In re

Cassidy, 51 N.Y.S.2d 202, 205 (N.Y. App. Div. 1944); State v.

Fennell, 382 S.E.2d 231, 232 (N.C. Ct. App. 1989); Mosher v. City of

Dayton, 358 N.E.2d 540, 543 (Ohio 1976); Master v. State, 653

S.W.2d 944, 945 (Tex. App. 1983); State v. Vlacil, 645 P.2d 677, 679

(Utah 1982); see also Kalodimos v. Village of Morton Grove, 470

N.E.2d 266, 269 (Ill. 1984) (stating in dicta that Second Amendment

protects collective right).

18

at 236, 255-59, as does Professor Laurence Tribe’s leading

treatise on constitutional law.7 Because we have no direct

precedent—either in this court or the Supreme Court—that

provides us with a square holding on the question, we turn first

to the text of the Amendment.

A

We start by considering the competing claims about the

meaning of the Second Amendment’s operative clause: “the

right of the people to keep and bear Arms shall not be

infringed.” Appellants contend that “the right of the people”

clearly contemplates an individual right and that “keep and bear

Arms” necessarily implies private use and ownership. The

District’s primary argument is that “keep and bear Arms” is best

read in a military sense, and, as a consequence, the entire

operative clause should be understood as granting only a

collective right. The District also argues that “the right of the

people” is ambiguous as to whether the right protects civic or

private ownership and use of weapons.

In determining whether the Second Amendment’s guarantee

is an individual one, or some sort of collective right, the most

important word is the one the drafters chose to describe the

holders of the right—“the people.” That term is found in the

First, Second, Fourth, Ninth, and Tenth Amendments. It has

never been doubted that these provisions were designed to

protect the interests of individuals against government intrusion,

interference, or usurpation. We also note that the Tenth

7

See 1 LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW 902

& n.221 (3d ed. 2000). Professor Tribe was not always of this view.

See Sanford Levinson, The Embarrassing Second Amendment, 99

YALE L.J. 637, 640 (1989) (critiquing Tribe’s earlier collective right

position).

19

Amendment—“The powers not delegated to the United States

by the Constitution, nor prohibited by it to the states, are

reserved to the states respectively, or to the people”—indicates

that the authors of the Bill of Rights were perfectly capable of

distinguishing between “the people,” on the one hand, and “the

states,” on the other. The natural reading of “the right of the

people” in the Second Amendment would accord with usage

elsewhere in the Bill of Rights.

The District’s argument, on the other hand, asks us to read

“the people” to mean some subset of individuals such as “the

organized militia” or “the people who are engaged in militia

service,” or perhaps not any individuals at all—e.g., “the states.”

See Emerson, 270 F.3d at 227. These strained interpretations of

“the people” simply cannot be squared with the uniform

construction of our other Bill of Rights provisions. Indeed, the

Supreme Court has recently endorsed a uniform reading of “the

people” across the Bill of Rights. In United States v. Verdugo-

Urquidez, 494 U.S. 259 (1990), the Court looked specifically at

the Constitution and Bill of Rights’ use of “people” in the course

of holding that the Fourth Amendment did not protect the rights

of non-citizens on foreign soil:

“[T]he people” seems to have been a term of art

employed in select parts of the Constitution. The

Preamble declares that the Constitution is ordained and

established by “the People of the United States.” The

Second Amendment protects “the right of the people to

keep and bear Arms,” and the Ninth and Tenth

Amendments provide that certain rights and powers are

retained by and reserved to “the people.” See also U.S.

CONST., amdt. 1; Art. I, § 2, cl. 1. While this textual

exegesis is by no means conclusive, it suggests that

“the people” protected by the Fourth Amendment, and

by the First and Second Amendments, and to whom

20

rights and powers are reserved in the Ninth and Tenth

Amendments, refers to a class of persons who are part

of a national community or who have otherwise

developed sufficient connection with this country to be

considered part of that community.

Id. at 265. It seems unlikely that the Supreme Court would have

lumped these provisions together without comment if it were of

the view that the Second Amendment protects only a collective

right. The Court’s discussion certainly indicates—if it does not

definitively determine—that we should not regard “the people”

in the Second Amendment as somehow restricted to a small

subset of “the people” meriting protection under the other

Amendments’ use of that same term.

In sum, the phrase “the right of the people,” when read

intratextually and in light of Supreme Court precedent, leads us

to conclude that the right in question is individual. This

proposition is true even though “the people” at the time of the

founding was not as inclusive a concept as “the people” today.

See Robert E. Shallope, To Keep and Bear Arms in the Early

Republic, 16 CONST. COMMENT. 269, 280-81 (1999). To the

extent that non-whites, women, and the propertyless were

excluded from the protections afforded to “the people,” the

Equal Protection Clause of the Fourteenth Amendment is

understood to have corrected that initial constitutional

shortcoming.

The wording of the operative clause also indicates that the

right to keep and bear arms was not created by government, but

rather preserved by it. See Thomas B. McAffee & Michael J.

Quinlan, Bringing Forward the Right to Keep and Bear Arms:

Do Text, History, or Precedent Stand in the Way?, 75 N.C. L.

REV. 781, 890 (1997). Hence, the Amendment acknowledges

“the right . . . to keep and bear Arms,” a right that pre-existed

21

the Constitution like “the freedom of speech.” Because the right

to arms existed prior to the formation of the new government,

see Robertson v. Baldwin, 165 U.S. 275, 280 (1897) (describing

the origin of the Bill of Rights in English law), the Second

Amendment only guarantees that the right “shall not be

infringed.” Thomas Cooley, in his influential treatise, observed

that the Second Amendment had its origins in the struggle with

the Stuart monarchs in late-seventeenth-century England. See

THOMAS M. COOLEY, THE GENERAL PRINCIPLES OF

CONSTITUTIONAL LAW IN THE UNITED STATES OF AMERICA 270-

72 (Rothman & Co. 1981) (1880).8

8

Indeed, England’s Bill of Rights of 1689 guaranteed “[t]hat the

Subjects, which are Protestants, may have Arms for their Defence,

suitable to their conditions, as allowed by law.” 1 W. & M., Sess. 2,

c. 2. Here too, however, the right was not newly created, but rather

recognized as part of the common law tradition. The ancient origin of

the right in England was affirmed almost a century later, in the

aftermath of the anti-Catholic Gordon riots of 1780, when the

Recorder of London, who was the foremost legal advisor to the city as

well as the chief judge of the Old Bailey, gave the following opinion

on the legality of private organizations armed for defense against

rioters:

The right of His majesty’s Protestant subjects, to have arms for

their own defence, and to use them for lawful purposes, is most

clear and undeniable. It seems, indeed, to be considered, by the

ancient laws of the Kingdom, not only as a right, but as a duty;

for all the subjects of the realm, who are able to bear arms, are

bound to be ready, at all times, to assist the sheriff, and other

civil magistrates, in the execution of the laws and the

preservation of the public peace. And that right which every

Protestant most unquestionably possesses, individually, may, and

in many cases must, be exercised collectively, is likewise a point

which I conceive to be most clearly established by the authority

of judicial decisions and ancient acts of parliament, as well as by

reason and common sense.

22

To determine what interests this pre-existing right

protected, we look to the lawful, private purposes for which

people of the time owned and used arms. The correspondence

and political dialogue of the founding era indicate that arms

were kept for lawful use in self-defense and hunting. See

Emerson, 270 F.3d at 251-55 (collecting historical materials);

Robert E. Shallope, The Ideological Origins of the Second

Amendment, 69 J. AM. HIST. 599, 602-14 (1982); see also PA.

CONST. sec. 43 (Sept. 28, 1776) (“The inhabitants of this state

shall have liberty to fowl and hunt in seasonable times on the

lands they hold, and on all other lands therein not enclosed

. . . .”).

The pre-existing right to keep and bear arms was premised

on the commonplace assumption that individuals would use

them for these private purposes, in addition to whatever militia

service they would be obligated to perform for the state. The

premise that private arms would be used for self-defense accords

with Blackstone’s observation, which had influenced thinking

in the American colonies, that the people’s right to arms was

auxiliary to the natural right of self-preservation. See WILLIAM

BLACKSTONE, 1 COMMENTARIES *136, *139; see also Silveira,

328 F.3d at 583-85 (Kleinfeld, J.); Kasler v. Lockyer, 2 P.3d

581, 602 (Cal. 2000) (Brown, J., concurring). The right of self-

preservation, in turn, was understood as the right to defend

oneself against attacks by lawless individuals, or, if absolutely

necessary, to resist and throw off a tyrannical government. See

Silveira, 328 F.3d at 583-85 (Kleinfeld, J.); see also id. at 569-

Opinion on the Legality of the London Military Foot Association,

reprinted in WILLIAM BLIZZARD, DESULTORY REFLECTIONS ON

POLICE 59-60 (1785). For further examination of the Second

Amendment’s English origins, see generally JOYCE LEE MALCOLM,

TO KEEP AND BEAR ARMS (1994).

23

70 (Kozinski, J., dissenting from the denial of rehearing en

banc); Kasler, 2 P.3d at 605 (Brown, J., concurring).9

When we look at the Bill of Rights as a whole, the setting

of the Second Amendment reinforces its individual nature. The

Bill of Rights was almost entirely a declaration of individual

rights, and the Second Amendment’s inclusion therein strongly

indicates that it, too, was intended to protect personal liberty.

The collective right advocates ask us to imagine that the First

Congress situated a sui generis states’ right among a catalogue

9

The importance of the private right of self-defense is hardly

surprising when one remembers that most Americans lacked a

professional police force until the middle of the nineteenth century,

see Levinson, supra, at 646 & n.46, and that many Americans lived in

backcountry such as the Northwest Territory.

With respect to the right to defend oneself against tyranny and

oppression, some have argued that the Second Amendment is utterly

irrelevant because the arms it protects, even if commonly owned,

would be of no use when opposed to the arsenal of the modern state.

But as Judge Kozinski has noted, incidents such as the Warsaw ghetto

uprising of 1943 provide rather dramatic evidence to the contrary. See

Silveira, 328 F.3d at 569-70 (dissenting from the denial of rehearing

en banc). The deterrent effect of a well-armed populace is surely

more important than the probability of overall success in a full-out

armed conflict. Thus could Madison write to the people of New York

in 1788:

Notwithstanding the military establishments in the several

kingdoms of Europe, which are carried as far as public resources

will bear, the governments are afraid to trust the people with

arms. And it is not certain that with this aid alone they would not

be able to shake off their yokes.

THE FEDERALIST NO. 46, at 299-300 (James Madison) (Clinton

Rossiter ed., 1961).

24

of cherished individual liberties without comment. We believe

the canon of construction known as noscitur a sociis applies

here. Just as we would read an ambiguous statutory term in

light of its context, we should read any supposed ambiguities in

the Second Amendment in light of its context. Every other

provision of the Bill of Rights, excepting the Tenth, which

speaks explicitly about the allocation of governmental power,

protects rights enjoyed by citizens in their individual capacity.

The Second Amendment would be an inexplicable aberration if

it were not read to protect individual rights as well.

The District insists that the phrase “keep and bear Arms”

should be read as purely military language, and thus indicative

of a civic, rather than private, guarantee. The term “bear Arms”

is obviously susceptible to a military construction. But it is not

accurate to construe it exclusively so. First, the word “bear” in

this context is simply a more formal synonym for “carry,” i.e.,

“Beware of Greeks bearing gifts.” The Oxford English

Dictionary and the original Webster’s list the primary meaning

of “bear” as “to support” or “to carry.” See Silveira, 328 F.3d

at 573 (Kleinfeld, J.). Dr. Johnson’s Dictionary—which the

Supreme Court often relies upon to ascertain the founding-era

understanding of text, see, e.g., Eldred v. Ashcroft, 537 U.S.

186, 199 (2003)—is in accord. The first three definitions for

“bear” are “to carry as a burden,” “to convey or carry,” and “to

carry as a mark of authority.” See JOHNSON’S AND WALKER’S

ENGLISH DICTIONARIES COMBINED 126 (J.E. Worcester ed.,

1830) [hereinafter Johnson].

Historical usage, as gleaned from the O.E.D. and Webster’s,

supports the notion that “bear arms” was sometimes used as an

idiom signifying the use of weaponry in conjunction with

military service. However, these sources also confirm that the

idiomatic usage was not absolute. Silveira, 328 F.3d at 573

(Kleinfeld, J.); Emerson, 270 F.3d at 229-32. Just as it is clear

25

that the phrase “to bear arms” was in common use as a byword

for soldiering in the founding era, see, e.g., Gary Wills, To Keep

and Bear Arms, N.Y. REV. OF BOOKS, Sept. 21, 1995, at 62-73,

it is equally evident from a survey of late eighteenth- and early

nineteenth-century state constitutional provisions that the public

understanding of “bear Arms” also encompassed the carrying of

arms for private purposes such as self-defense. See Emerson,

270 F.3d at 230 n.29 (collecting state constitutional provisions

referring to the people’s right to “bear arms in defence of

themselves and the State” among other formulations). Thus, it

would hardly have been unusual for a writer at the time (or now)

to have said that, after an attack on a house by thieves, the men

set out to find them “bearing arms.”

The District relies heavily on the use of “bearing arms” in

a conscientious objector clause that formed part of Madison’s

initial draft of the Second Amendment. The purpose of this

clause, which was later dropped from the Amendment’s text,

was to excuse those “religiously scrupulous of bearing arms”

from being forced “to render military service in person.” THE

COMPLETE BILL OF RIGHTS 169 (Neil H. Cogan ed. 1997). The

District argues that the conscientious objector clause thus

equates “bearing arms” with military service. The Quakers,

Mennonites, and other pacifist sects that were to benefit by the

conscientious objector clause had scruples against soldiering,

but not necessarily hunting, which, like soldiering, involved the

carrying of arms. And if “bearing arms” only meant “carrying

arms,” it is argued, the phrase would not have been used in the

conscientious objector clause because Quakers were not

religiously scrupulous of carrying arms generally; it was

carrying arms for militant purposes that the Friends truly

abhorred (although many Quakers certainly frowned on hunting

as the wanton infliction of cruelty upon animals). See THOMAS

CLARKSON, A PORTRAITURE OF QUAKERISM, VOL. I. That

Madison’s conscientious objector clause appears to use “bearing

26

arms” in a strictly military sense does at least suggest that “bear

Arms” in the Second Amendment’s operative clause includes

the carrying of arms for military purposes. However, there are

too many instances of “bear arms” indicating private use to

conclude that the drafters intended only a military sense.

In addition to the state constitutional provisions collected in

Emerson, there is the following statement in the report issued by

the dissenting delegates at the Pennsylvania ratification

convention:

That the people have a right to bear arms for the

defence of themselves and their own state, or the

United States, or for the purpose of killing game . . . .

THE ADDRESS AND REASONS OF DISSENT OF THE MINORITY OF

THE CONVENTION OF PENNSYLVANIA TO THEIR CONSTITUENTS,

reprinted in 3 THE COMPLETE ANTI-FEDERALIST 145, 151

(Herbert J. Storing ed., 1981). These dissenting Antifederalists,

writing in December 1787, were clearly using “bear arms” to

include uses of weaponry outside the militia setting—e.g., one

may “bear arms . . . for the purpose of killing game.”10

10

To be sure, collective right theorists have correctly observed

that the Pennsylvania dissenters were not speaking for anyone but

themselves—that is, they lost in their attempt to defeat ratification of

the Constitution, and lacked the clout to have their suggested

amendments sent to the First Congress, unlike the Antifederalist

delegates in other state conventions. See Jack N. Rakove, The Second

Amendment: The Highest Stage of Originalism, 76 CHI.-KENT L. REV.

103, 134-35 (2000). But that the dissenting delegates were political

losers does not undercut their status as competent users of late-

eighteenth-century English.

27

We also note that at least three current members (and one

former member) of the Supreme Court have read “bear Arms”

in the Second Amendment to have meaning beyond mere

soldiering: “Surely a most familiar meaning [of ‘carries a

firearm’] is, as the Constitution’s Second Amendment (‘keep

and bear Arms’) and Black’s Law Dictionary . . . indicate:

‘wear, bear, or carry . . . upon the person or in the clothing or in

a pocket, for the purpose . . . of being armed and ready for

offensive or defensive action in a case of conflict with another

person.” Muscarello v. United States, 524 U.S. 125, 143 (1998)

(Ginsburg, J., dissenting, joined by Rehnquist, C.J., Scalia, J.,

and Souter, J.) (emphasis in original). Based on the foregoing,

we think the operative clause includes a private meaning for

“bear Arms.”

In contrast to the collective right theorists’ extensive efforts

to tease out the meaning of “bear,” the conjoined, preceding

verb “keep” has been almost entirely neglected. In that

tradition, the District offers a cursory and largely dismissive

analysis of the verb. The District appears to claim that “keep

and bear” is a unitary term and that the individual word “keep”

should be given no independent significance. This suggestion

is somewhat risible in light of the District’s admonishment,

earlier in its brief, that when interpreting constitutional text

“every word must have its due force, and appropriate meaning;

. . . no word was unnecessarily used or needlessly added.”

Appellees’ Br. at 23 (quoting Holmes v. Jennison, 39 U.S. (14

Pet.) 540, 570-71 (1840)). Even if “keep” and “bear” are not

read as a unitary term, we are told, the meaning of “keep”

cannot be broader than “bear” because the Second Amendment

only protects the use of arms in the course of militia service. Id.

at 26-27. But this proposition assumes its conclusion, and we do

not take it seriously.

28

One authority cited by the District has attempted to equate

“keep” with “keep up,” a term that had been used in phrases

such as “keep up a standing army” or, as in the Articles of

Confederation, “every state shall keep up a well regulated and

disciplined militia . . . .” See Wills, supra, at 66. The argument

that “keep” as used in “the right of the people to keep . . . Arms”

shares a military meaning with “keep up” as used in “every state

shall keep up a well regulated militia” mocks usage, syntax, and

common sense. Such outlandish views are likely advanced

because the plain meaning of “keep” strikes a mortal blow to the

collective right theory. Turning again to Dr. Johnson’s

Dictionary, we see that the first three definitions of “keep” are

“to retain; not to lose,” “to have in custody,” “to preserve; not to

let go.” Johnson, supra, at 540. We think “keep” is a

straightforward term that implies ownership or possession of a

functioning weapon by an individual for private use. Emerson,

270 F.3d at 231 & n.31; accord Silveira, 328 F.3d at 573-74

(Kleinfeld, J.). The term “bear arms,” when viewed in isolation,

might be thought ambiguous; it could have a military cast. But

since “the people” and “keep” have obvious individual and

private meanings, we think those words resolve any supposed

ambiguity in the term “bear arms.”

***

The parties generally agree that the prefatory clause, to

which we now turn, declares the Second Amendment’s civic

purpose—i.e., insuring the continuance of the militia

system—and only disagree over whether that purpose was

exclusive. The parties do attribute dramatically different

meanings to “a well regulated Militia.” Appellants argue that

the militia referenced in the Second Amendment’s prefatory

clause was “practically synonymous” with “the people”

referenced in the operative clause. The District advances a

much more limited definition. According to the District, the

29

militia was a body of adult men regulated and organized by state

law as a civilian fighting force. The crucial distinction between

the parties’ views then goes to the nature of the militia:

Appellants claim no organization was required, whereas the

District claims a militia did not exist unless it was subject to

state discipline and leadership. As we have already noted, the

District claims that “the Framers’ militia has faded into

insignificance.”

The parties draw on United States v. Miller, 307 U.S. 174

(1939), to support their differing definitions. Miller, a rare

Second Amendment precedent in the Supreme Court, the

holding of which we discuss below, described the militia in the

following terms:

The Militia which the States were expected to

maintain and train is set in contrast with Troops which

they were forbidden to keep without the consent of

Congress. The sentiment of the time strongly

disfavored standing armies; the common view was that

adequate defense of country and laws could be secured

through the Militia—civilians primarily, soldiers on

occasion.

The signification attributed to the term Militia

appears from the debates in the Convention, the history

and legislation of Colonies and States, and the writings

of approved commentators. These show plainly enough

that the Militia comprised all males physically capable

of acting in concert for the common defense. “A body

of citizens enrolled for military discipline.” And

further, that ordinarily when called for service these

men were expected to appear bearing arms supplied by

themselves and of the kind in common use at the time.

30

Id. at 178-79.

The District claims that Miller’s historical account of the

“Militia” supports its position. Yet according to Miller, the

militia included “all males physically capable of acting in

concert for the common defence” who were “enrolled for

military discipline.” And Miller’s expansive definition of the

militia—qualitatively different from the District’s concept—is

in accord with the second Militia Act of 1792, passed by the

Second Congress.11 Act of May 8, 1792, ch. XXXIII, 1 Stat.

271. Of course, many of the members of the Second Congress

were also members of the First, which had drafted the Bill of

Rights. But more importantly, they were conversant with the

common understanding of both the First Congress and the

ratifying state legislatures as to what was meant by “Militia” in

the Second Amendment. The second Militia Act placed specific

and extensive requirements on the citizens who were to

constitute the militia:

Be it enacted . . . [t]hat each and every free able-bodied

white male citizen of the respective states, resident

therein, who is or shall be of the age of eighteen years,

and under the age of forty-five years (except as is

herein after excepted) shall severally and respectively

be enrolled in the militia, by the captain or

11

The second Militia Act was passed on May 8, 1792. On May

2, 1792, Congress had enacted a Militia Act “providing for the

authority of the President to call out the Militia.” Act of May 2, 1792,

ch. XXVIII, 1 Stat. 264. The first Militia Act gave the President

power to call forth the Militia in cases of invasion by a foreign nation

or Indian tribe, and also in cases of internal rebellion. If the militia of

the state wherein the rebellion was taking place either was unable to

suppress it or refused to be called up, the first Militia Act gave the

President authority to use militia from other states.

31

commanding officer of the company, within whose

bounds such citizen shall reside, and that within twelve

months after the passing of this Act. And . . . every

such captain or commanding officer of a company . . .

shall without delay notify such citizen of the said

enrollment . . . . That every citizen, so enrolled and

notified, shall, within six months thereafter, provide

himself with a good musket or firelock, a sufficient

bayonet and belt, two spare flints, and a knapsack, a

pouch, with a box therein, to contain not less than

twenty four cartridges, suited to the bore of his musket

or firelock, each cartridge to contain a proper quantity

of powder and ball: or with a good rifle, knapsack,

shot-pouch, and powder-horn, twenty balls suited to

the bore of his rifle, and a quarter of a pound of

powder; and shall appear so armed, accoutred and

provided, when called out to exercise, or into service.

Id. (emphasis added).12

The reader will note that the Act’s first requirement is that

the “free able-bodied white male” population between eighteen

and forty-five enroll in the militia. And enrollment was quite

distinct from the various other regulations prescribed by

Congress, which included the type of weaponry members of the

militia must own. Becoming “enrolled” in the militia appears to

12

Congress enacted this provision pursuant to its Article I, Section

8 powers over the militia: “The Congress shall have the power . . . [t]o

provide for organizing, arming, and disciplining, the militia, and for

governing such part of them as may be employed in the service of the

United States, reserving to the states respectively, the appointment of

the officers, and the authority of training the militia according to the

discipline prescribed by Congress . . . .” U.S. CONST., art. I., sec. 8.

32

have involved providing one’s name and whereabouts to a local

militia officer—somewhat analogous to our nation’s current

practice of requiring young men to register under the Selective

Service Act. Silveira, 328 F.3d at 578 (Kleinfeld, J.). Thus

when read in light of the second Militia Act, Miller defines the

militia as having only two primary characteristics: It was all

free, white, able-bodied men of a certain age who had given

their names to the local militia officers as eligible for militia

service. Contrary to the District’s view, there was no

organizational condition precedent to the existence of the

“Militia.” Congress went on in the second Militia Act to

prescribe a number of rules for organizing the militia. But the

militia itself was the raw material from which an organized

fighting force was to be created. Thus, the second Militia Act

reads:

And be it further enacted, That out of the militia

enrolled as is herein directed, there shall be formed for

each battalion at least one company of grenadiers, light

infantry or riflemen; and that to each division there

shall be at least one company of artillery, and one troop

of horse: There shall be to each company of artillery,

one captain, two lieutenants, four sergeants, four

corporals, six gunners, six bombardiers, one drummer,

and one fifer.

Id. at 272 (emphasis added).

The crucial point is that the existence of the militia

preceded its organization by Congress, and it preceded the

implementation of Congress’s organizing plan by the states.

The District’s definition of the militia is just too narrow. The

militia was a large segment of the population—not quite

synonymous with “the people,” as appellants contend—but

certainly not the organized “divisions, brigades, regiments,

33

battalions, and companies” mentioned in the second Militia Act.

Id. at 272.

The current congressional definition of the “Militia”

accords with original usage: “The militia of the United States

consists of all able-bodied males at least 17 years of age and . . .

under 45 years of age who are, or who have made a declaration

of intention to become, citizens of the United States and of

female citizens of the United States who are members of the

National Guard.” 10 U.S.C. § 311. The statute then

distinguishes between the “organized militia,” which consists of

the National Guard and Naval Militia, and the “unorganized

militia,” which consists of every member of the militia who is

not a member of the National Guard or Naval Militia. Id. Just

as in the 1792 enactment, Congress defined the militia broadly,

and, more explicitly than in its founding-era counterpart,

Congress provided that a large portion of the militia would

remain unorganized. The District has a similar structure for its

own militia: “Every able-bodied male citizen resident within the

District of Columbia, of the age of 18 years and under the age of

45 years, excepting . . . idiots, lunatics, common drunkards,

vagabonds, paupers, and persons convicted of any infamous

crime, shall be enrolled in the militia.” D.C. Code § 49-401.

The District argues that the modifier “well regulated”

means that “[t]he militia was not individuals acting on their

own; one cannot be a one-person militia.” We quite agree that

the militia was a collective body designed to act in concert. But

we disagree with the District that the use of “well regulated” in

the constitutional text somehow turns the popular militia

embodied in the 1792 Act into a “select” militia that consisted

of semi-professional soldiers like our current National Guard.

Contemporaneous legislation once again provides us with

guidance in reading ambiguous constitutional text. See Op. at

30; see also Silveira, 328 F.3d at 579-80 (Kleinfeld, J.).

34

The second Militia Act provides a detailed list of directions

to both individuals and states that we take as an indication of

what the drafters of the Second Amendment contemplated as a

“well regulated Militia.” It will be recalled, the second Militia

Act requires that eligible citizens enroll in the militia and, within

six months, arm themselves accordingly. Subsequent to

enrollment, arming oneself became the first duty of all

militiamen. See Silveira, 328 F.3d at 581 (Kleinfeld, J.). The

Act goes on to require of the states that the militiamen be

notified of their enrollment; that within one year, the states pass

laws to arrange the militia into divisions, brigades, regiments,

battalions, and companies, as well as appoint various militia

officers; that there be an Adjutant General appointed in each

state to distribute all orders for the Commander in Chief of the

State to the several corps, and so on.

The statute thus makes clear that these requirements were

independent of each other, i.e., militiamen were obligated to arm

themselves regardless of the organization provided by the states,

and the states were obligated to organize the militia, regardless

of whether individuals had armed themselves in accordance with

the statute. We take these dual requirements—that citizens were

properly supplied with arms and subject to organization by the

states (as distinct from actually organized)—to be a clear

indication of what the authors of the Second Amendment

contemplated as a “well regulated Militia.”

Another aspect of “well regulated” implicit in the second

Militia Act is the exclusion of certain persons from militia

service. For instance, the Act exempts from militia duty “the

Vice President of the United States, [executive branch officers

and judges], Congressmen, custom house officers, . . . post

officers, . . . all Ferrymen employed at any ferry on the post

road, . . . all pilots, all mariners actually employed in the sea

service of any citizen or merchant within the United States; and

35

all persons who now are or may be hereafter exempted by the

laws of the respective states.” Act of May 8, 1792, ch. XXXIII,

1 Stat. 271. Thus, even after the founding-era militia became

“well regulated,” it did not lose its popular character. The

militia still included the majority of adult men (albeit, at the

time, “free able-bodied white male[s]”), who were to arm

themselves, and whom the states were expected to organize into

fighting units. Quite unlike today’s National Guard,

participation was widespread and mandatory.

As the foregoing makes clear, the “well regulated Militia”

was not an elite or select body. See Silveira, 328 F.3d at 577-78

(Kleinfeld, J.). While some of the founding fathers, including

George Washington and Alexander Hamilton, favored such

organizations over a popular militia, see THE ORIGIN OF THE

SECOND AMENDMENT at xlvii (David E. Young ed., 2d ed.

1995), the Second Congress unambiguously required popular

participation. The important point, of course, is that the popular

nature of the militia is consistent with an individual right to keep

and bear arms: Preserving an individual right was the best way

to ensure that the militia could serve when called.

***

As we observed, the District argues that even if one reads

the operative clause in isolation, it supports the collective right

interpretation of the Second Amendment. Alternatively, the

District contends that the operative clause should not, in fact, be

read in isolation, and that it is imbued with the civic character of

the prefatory clause when the Amendment is read, correctly, as

two interactive clauses. The District points to the singular

nature of the Second Amendment’s preamble as an indication

that the operative clause must be restricted or conditioned in

some way by the prefatory language. Compare Eugene Volokh,

The Commonplace Second Amendment, 73 N.Y.U. L. REV. 793

36

(1998), with Michael C. Dorf, What Does the Second

Amendment Mean Today?, 76 CHI.-KENT L. REV. 291 (2000).

However, the structure of the Second Amendment turns out to

be not so unusual when we examine state constitutional

provisions guaranteeing rights or restricting governmental

power. It was quite common for prefatory language to state a

principle of good government that was narrower than the

operative language used to achieve it. Volokh, supra, at 801-07.

We think the Second Amendment was similarly structured.

The prefatory language announcing the desirability of a well-

regulated militia—even bearing in mind the breadth of the

concept of a militia—is narrower than the guarantee of an

individual right to keep and bear arms. The Amendment does

not protect “the right of militiamen to keep and bear arms,” but

rather “the right of the people.” The operative clause, properly

read, protects the ownership and use of weaponry beyond that

needed to preserve the state militias. Again, we point out that if

the competent drafters of the Second Amendment had meant the

right to be limited to the protection of state militias, it is hard to

imagine that they would have chosen the language they did. We

therefore take it as an expression of the drafters’ view that the

people possessed a natural right to keep and bear arms, and that

the preservation of the militia was the right’s most salient

political benefit—and thus the most appropriate to express in a

political document.

That the Amendment’s civic purpose was placed in a

preamble makes perfect sense given the then-recent ratification

controversy, wherein Antifederalist opponents of the 1787

Constitution agitated for greater assurance that the militia

system would remain robust so that standing armies, which were

thought by many at the time to be the bane of liberty, would not

be necessary. See BERNARD BAILYN, THE IDEOLOGICAL

ORIGINS OF THE AMERICAN REVOLUTION 338-60 (Enlarged ed.

37

1992). The Federalists who dominated the First Congress

offered the Second Amendment’s preamble to palliate

Antifederalist concerns about the continued existence of the

popular militia. But neither the Federalists nor the

Antifederalists thought the federal government had the power to

disarm the people. This is evident from the ratification debates,

where the Federalists relied on the existence of an armed

populace to deflect Antifederalist criticism that a strong federal

government would lead to oppression and tyranny.

Antifederalists acknowledged the argument, but insisted that an

armed populace was not enough, and that the existence of a

popular militia should also be guaranteed. Compare THE

FEDERALIST Nos. 8, 28, 59 (Alexander Hamilton), No. 46

(James Madison) (arguing that an armed populace constitutes a

check on the potential abuses of the federal government) with

MELANCTON SMITH [Federal Farmer], OBSERVATIONS TO A FAIR

EXAMINATION OF THE SYSTEM OF GOVERNMENT PROPOSED BY

THE LATE CONVENTION, AND TO SEVERAL ESSENTIAL AND

NECESSARY ALTERATIONS IN IT (Nov. 8, 1787), reprinted in THE

ORIGIN OF THE SECOND AMENDMENT, supra, at 89, 91 (despite

the fact that the “yeomanry of the country . . . possess arms” for

defense, the federal government could undermine the regular

militia and render the armed populace of no importance).

To be sure, as the District argues, the Miller Court did draw

upon the prefatory clause to interpret the term “Arms” in the

operative clause. As we note below, interpreting “Arms” in

light of the Second Amendment’s militia purpose makes sense

because “Arms” is an open-ended term that appears but once in

the Constitution and Bill of Rights. But Miller does not

command that we limit perfectly sensible constitutional text

such as “the right of the people” in a manner inconsistent with

other constitutional provisions. Similarly, the Second

Amendment’s use of “keep” does not need to be recast in

artificially military terms in order to conform to Miller.

38

We note that when interpreting the text of a constitutional

amendment it is common for courts to look for guidance in the

proceedings of the Congress that authored the provision.

Unfortunately, the Second Amendment’s drafting history is

relatively scant and inconclusive. Emerson, 270 F.3d at 245-51.

The recorded debates in the First Congress do not reference the

operative clause, a likely indication that the drafters took its

individual guarantee as rather uncontroversial. There is

certainly nothing in this history to substantiate the strained

reading of the Second Amendment offered by the District.

B

We have noted that there is no unequivocal precedent that

dictates the outcome of this case. This Court has never decided

whether the Second Amendment protects an individual or

collective right to keep and bear arms. On one occasion we

anticipated an argument about the scope of the Second

Amendment, but because the issue had not been properly raised

by appellants, we assumed the applicability of the collective

right interpretation then urged by the federal government.

Fraternal Order of Police v. United States (F.O.P. II), 173 F.3d

898, 906 (D.C. Cir. 1999). The Supreme Court has not decided

this issue either. See id. As we have said, the leading Second

Amendment case in the Supreme Court is United States v.

Miller. While Miller is our best guide, the Supreme Court’s

other statements on the Second Amendment warrant mention.

In Dred Scott v. Sandford, 60 U.S. 393 (1857), the Court

asserted the applicability of the Bill of Rights to the territories

in the following terms:

[N]o one . . . will contend that Congress can make any

law in a Territory respecting the establishment of

religion, or the free exercise thereof, or abridging the

39

freedom of speech or of the press, or the right of the

people of the Territory peaceably to assemble, and to

petition the Government for the redress of grievances

. . . [n]or can Congress deny to the people the right to

keep and bear arms, nor the right to trial by jury, nor

compel any one to be a witness against himself in a

criminal proceeding . . . . These powers . . . in relation

to rights of person . . . are, in express and positive

terms, denied to the General Government.

Id. at 450 (emphasis added). Although Dred Scott is as

infamous as it was erroneous in holding that African-Americans

are not citizens, this passage expresses the view, albeit in

passing, that the Second Amendment contains a personal right.

It is included among other individual rights, such as the right to

trial by jury and the privilege against self-incrimination. The

other Second Amendment cases of the mid-nineteenth century

did not touch upon the individual versus collective nature of the

Amendment’s guarantee.13

13

In United States v. Cruikshank, 92 U.S. 542, 551 (1876), and

Presser v. Illinois, 116 U.S. 252, 264-66 (1886), the Court held that

the Second Amendment constrained only federal government action

and did not apply to the actions of state governments. This holding

was reiterated in Maxwell v. Dow, 176 U.S. 581, 597 (1900), and

Twining v. New Jersey, 211 U.S. 78, 98 (1908). Indeed, the Second

Amendment is one of the few Bill of Rights provisions that has not yet

been held to be incorporated through the Fourteenth Amendment.

While the status of the Second Amendment within the twentieth-

century incorporation debate is a matter of importance for the many

challenges to state gun control laws, it is an issue that we need not

decide. The District of Columbia is a Federal District, ultimately

controlled by Congress. Although subject to § 1983 suits by federal

law, see An Act to Permit Civil Suits Under [42 U.S.C. § 1983]

Against Any Person Acting Under Color of Any Law or Custom of the

District of Columbia, Pub. L. No. 96-170, 93 Stat. 1284 (1979), the

40

In Robertson v. Baldwin, 165 U.S. 275 (1897), the Court

addressed the scope of the term “involuntary servitude” in the

Thirteenth Amendment. In discussing limitations inherent in

that constitutional provision, the Court said the following:

The law is perfectly well settled that the first 10

amendments to the constitution, commonly known as

the “Bill of Rights,” were not intended to lay down any

novel principles of government, but simply to embody

certain guaranties and immunities which we had

inherited from our English ancestors, and which had,

from time immemorial, been subject to certain well-

recognized exceptions, arising from the necessities of

the case. . . .

Thus, the freedom of speech and of the press

(article 1) does not permit the publication of libels,

blasphemous or indecent articles, or other publications

injurious to public morals or private reputation; the

right of the people to keep and bear arms (article 2) is

not infringed by laws prohibiting the carrying of

concealed weapons; the provision that no person shall

be twice put in jeopardy (article 5) does not prevent a

second trial, if upon the first trial the jury failed to

agree, or if the verdict was set aside upon the

defendant’s motion; nor does the provision of the same

article that no one shall be a witness against himself

impair his obligation to testify, if a prosecution against

him be barred by the lapse of time, a pardon, or by

statutory enactment.

District is directly constrained by the entire Bill of Rights, without

need for the intermediary of incorporation. See, e.g., Pernell v.

Southall Realty, 416 U.S. 363, 369-80 (1974) (applying Seventh

Amendment to local legislation for the District).

41

165 U.S. at 281-82 (emphasis added). Just as in Dred Scott, the

Second Amendment right is mentioned in a catalogue of other

well-known individual right provisions, and, in the Supreme

Court’s thin Second Amendment jurisprudence, Robertson has

the virtue of straightforwardly suggesting one permissible form

of regulatory limitation on the right to keep and bear arms. The

decision does not discuss whether the right is individual or

collective. Still, Robertson tends to cut against any version of

the collective right argument. If the right to keep and bear arms

offered no protection to individuals, the Court would not likely

pick as a noteworthy exception to the right a prohibition on

concealed weapons. The individual nature of the permitted

regulation suggests that the underlying right, too, concerned

personal ownership of firearms.

Few decisions of Second Amendment relevance arose in the

early decades of the twentieth century. Then came Miller, the

Supreme Court’s most thorough analysis of the Second

Amendment to date, and a decision that both sides of the current

gun control debate have claimed as their own. We agree with

the Emerson court (and the dissenting judges in the Ninth

Circuit) that Miller does not lend support to the collective right

model. See Silveira, 328 F.3d at 586-87 (Kleinfeld, J.);

Emerson, 270 F.3d at 226-27. Nor does it support the District’s

quasi-collective position. Although Miller did not explicitly

accept the individual right position, the decision implicitly

assumes that interpretation.

Miller involved a Second Amendment challenge by

criminal defendants to section 11 of the National Firearms Act

(then codified at 26 U.S.C. §§ 1132 et seq.), which prohibited

interstate transportation of certain firearms without a registration

or stamped order. The defendants had been indicted for

transporting a short-barreled shotgun from Oklahoma to

Arkansas in contravention of the Act. The district court

42

sustained defendants’ demurrer challenging their indictment on

Second Amendment grounds. The government appealed. The

defendants submitted no brief and made no appearance in the

Supreme Court. Miller, 307 U.S. at 175-77. Hearing the case

on direct appeal, the Court reversed and remanded. Id. at 183.

On the question whether the Second Amendment protects

an individual or collective right, the Court’s opinion in Miller is

most notable for what it omits. The government’s first argument

in its Miller brief was that “the right secured by [the Second

Amendment] to the people to keep and bear arms is not one

which may be utilized for private purposes but only one which

exists where the arms are borne in the militia or some other

military organization provided for by law and intended for the

protection of the state.” Appellant’s Br. at 15, 307 U.S. 704

(No. 696). This is a version of the collective right model. Like

the Fifth Circuit, we think it is significant that the Court did not

decide the case on this, the government’s primary argument.

Emerson, 270 F.3d at 222. Rather, the Court followed the logic

of the government’s secondary position, which was that a short-

barreled shotgun was not within the scope of the term “Arms”

in the Second Amendment.

The government had argued that even those courts that had

adopted an individual right theory of the Second Amendment14

had held that the term “Arms,” as used in both the Federal and

various state constitutions, referred “only to those weapons

which are ordinarily used for military or public defense purposes

and does not relate to those weapons which are commonly used

by criminals.” Appellant’s Br. at 18, 307 U.S. 704 (No. 696).

14

Here the brief for the United States cites two state court

decisions interpreting state constitutional provisions: People v.

Brown, 253 Mich. 537 (1931); State v. Duke, 42 Tex. 455 (1875). See

Appellant’s Br. at 18, 307 U.S. 704 (No. 696).

43

The government then proceeded to quote at length from a

Tennessee state court case interpreting “Arms” in the Tennessee

Bill of Rights to mean weapons “such as are usually employed

in civilized warfare, and that constitute the ordinary military

equipment.” Id. (quoting Aymette v. State, 20 Tenn. (1 Hum.)

154, 157 (1840)). The government’s weapons-based argument

provided the Miller Court with an alternative means to uphold

the National Firearms Act even if the Court disagreed with the

government’s collective right argument. The Miller Court’s

holding is based on the government’s alternative position:

In the absence of any evidence tending to show

that possession or use of a “shotgun having a barrel of

less than eighteen inches in length” at this time has

some reasonable relationship to the preservation or

efficiency of a well regulated militia, we cannot say

that the Second Amendment guarantees the right to

keep and bear such an instrument. Certainly it is not

within judicial notice that this weapon is any part of

the ordinary military equipment or that its use could

contribute to the common defense. Aymette v. State, 2

Humphreys (Tenn.) 154, 158.

Miller, 307 U.S. at 178 (emphasis added). The quotation makes

apparent that the Court was focused only on what arms are

protected by the Second Amendment, see Emerson, 270 F.3d at

224, and not the collective or individual nature of the right. If

the Miller Court intended to endorse the government’s first

argument, i.e., the collective right view, it would have

undoubtedly pointed out that the two defendants were not

affiliated with a state militia or other local military organization.

Id.

To be sure, the Miller Court linked the Second

Amendment’s language to the Constitution’s militia clause:

44

“With obvious purpose to assure the continuation and render

possible the effectiveness of such forces [i.e., the militia] the

declaration and guarantee of the Second Amendment were

made. It must be interpreted and applied with that end in view.”

307 U.S. at 178. We take the “declaration and guarantee”

referred to by the Miller Court to mean the Second

Amendment’s prefatory clause (which declares the necessity of

a “well regulated Militia”) and its operative clause (which

guarantees the preservation of a right) respectively.

The District would have us read this passage as recognizing

a limitation on the Second Amendment right based on the

individual’s connection (or lack thereof) to an organized

functioning militia. We disagree. As already discussed, the

Miller court was examining the relationship between the weapon

in question—a short-barreled shotgun—and the preservation of

the militia system, which was the Amendment’s politically

relevant purpose. The term “Arms” was quite indefinite, but it

would have been peculiar, to say the least, if it were designed to

ensure that people had an individual right to keep weapons

capable of mass destruction—e.g., cannons. Thus the Miller

Court limited the term “Arms”—interpreting it in a manner

consistent with the Amendment’s underlying civic purpose.

Only “Arms” whose “use or possession . . . has some reasonable

relationship to the preservation or efficiency of a well regulated

militia,” id. at 177, would qualify for protection.

Essential, then, to understanding what weapons qualify as

Second Amendment “Arms” is an awareness of how the

founding-era militia functioned. The Court explained its

understanding of what the Framers had in mind when they spoke

of the militia in terms we have discussed above. The members

of the militia were to be “civilians primarily, soldiers on

occasion.” Id. at 179. When called up by either the state or the

federal government, “these men were expected to appear

45

bearing arms supplied by themselves and of the kind in common

use at the time.” Id. (emphasis added).

As we noted above, the “Militia” was vast, including all

free, white, able-bodied men who were properly enrolled with

a local militia officer. By contrast, the Ninth Circuit has

recently (and we think erroneously) read “Militia” to mean a

“state-created and state-organized fighting force” that excludes

the unorganized populace. Silveira, 312 F.3d at 1069. As Judge

Kleinfeld noted, the Ninth Circuit’s decision entirely ignores

Miller’s controlling definition of the militia. 328 F.3d at 578

(dissenting from denial of rehearing en banc). The Ninth

Circuit’s interpretation of “Militia” also fails to account for the

second Militia Act of 1792, id. at 578-82, as well as local

federal militia units such as those provided for by the Northwest

Ordinance, see Act of Aug. 7, 1789, ch. VIII, 1 Stat. 50, or for

the District of Columbia in 1803, Act of March 3, 1803, ch. XX,

2 Stat. 215.

Miller’s definition of the “Militia,” then, offers further

support for the individual right interpretation of the Second

Amendment. Attempting to draw a line between the ownership

and use of “Arms” for private purposes and the ownership and

use of “Arms” for militia purposes would have been an

extremely silly exercise on the part of the First Congress if

indeed the very survival of the militia depended on men who

would bring their commonplace, private arms with them to

muster. A ban on the use and ownership of weapons for private

purposes, if allowed, would undoubtedly have had a deleterious,

if not catastrophic, effect on the readiness of the militia for

action. We do not see how one could believe that the First

Congress, when crafting the Second Amendment, would have

engaged in drawing such a foolish and impractical distinction,

and we think the Miller Court recognized as much.

46

***

To summarize, we conclude that the Second Amendment

protects an individual right to keep and bear arms. That right

existed prior to the formation of the new government under the

Constitution and was premised on the private use of arms for

activities such as hunting and self-defense, the latter being

understood as resistance to either private lawlessness or the

depredations of a tyrannical government (or a threat from

abroad). In addition, the right to keep and bear arms had the

important and salutary civic purpose of helping to preserve the

citizen militia. The civic purpose was also a political expedient

for the Federalists in the First Congress as it served, in part, to

placate their Antifederalist opponents. The individual right

facilitated militia service by ensuring that citizens would not be

barred from keeping the arms they would need when called forth

for militia duty. Despite the importance of the Second

Amendment’s civic purpose, however, the activities it protects

are not limited to militia service, nor is an individual’s

enjoyment of the right contingent upon his or her continued or

intermittent enrollment in the militia.

IV

As a corollary to its collective right position, the District

argues—albeit almost as an afterthought—that it is not subject

to the restraints of the Second Amendment because it is a purely

federal entity.15 Although it has a militia statute, see D.C. Code

§ 49-401, the District argues that its militia does not implicate

15

This contention originated in a concurring opinion in the

District of Columbia Court of Appeals, see Sandidge v. United States,

520 A.2d 1057, 1059 (D.C. 1987) (Nebeker, J.), and has been

subsequently adopted by a federal district court, see Seegars v.

Aschcroft, 297 F. Supp. 2d 201, 238-39 (D.D.C. 2004).

47

federalism concerns embodied in the Second Amendment—i.e.,

the District’s local legislation does not interfere with the

“security of a free State.”

The District does not argue, nor could it, that even if the

Second Amendment confers an individual right, that right is

enjoyed only by the residents of states (that would mean that

citizens of the United States who lived in territories, such as the

Northwest Territory, prior to their acceptance as states, did not

enjoy a constitutional right). In any event, the Supreme Court

has unambiguously held that the Constitution and Bill of Rights

are in effect in the District. See O’Donoghue v. United States,

289 U.S. 516, 539-41(1933) (quoting Downes v. Bidwell, 182

U.S. 244, 260-61 (1901)). “The mere cession of the District of

Columbia to the Federal government relinquished the authority

of the states, but it did not take it out of the United States or

from under the aegis of the Constitution. . . . If, before the

District was set off, Congress had passed an unconstitutional act

affecting its inhabitants, it would have been void. If done after

the District was created, it would have been equally void; in

other words, Congress could not do indirectly, by carving out

the District, what it could not do directly. The District still

remained a part of the United States, protected by the

Constitution.” Id. at 541. Rather, the District’s argument

amounts to an appendage of the collective right position. It is

only if one reads the prefatory language as limiting the operative

clause to a guarantee about militias that one ever arrives at the

question whether the guarantee is confined to state militias.

Our dissenting colleague recognizes this point; her opinion

begins with an acceptance of the collective right interpretation

of the Second Amendment. Dissent at 2-7. It is therefore not

clear to us that it is even relevant to discuss the meaning of “a

48

free State”—language upon which the dissent heavily relies.16

Still, taking the argument as presented, we think it wrong on

several grounds. First, the dissent (and the District) mistakenly

reads “a free State” to mean an actual political unit of the United

States, such as New York, etc., rather than a hypothetical polity.

In fact, Madison’s initial proposal to the First Congress stated

that a well-regulated militia was “the best security of a free

country.” THE COMPLETE BILL OF RIGHTS, supra, at 169. The

House committee then substituted “State” for “country” when it

initially altered Madison’s proposal. We have no record of the

House committee’s proceedings, but it is not credible to

conclude that a profound shift was intended in the change from

“country” to “State,” particularly as there was no subsequent

comment on the change.

The record of the debates in the First Congress relied upon

by our dissenting colleague only further undermines the reading

of “a free State” as meaning an individual state of the union. As

she points out, Elbridge Gerry, an Antifederalist Representative

from Massachusetts, criticized an initial formulation of the

Second Amendment as follows: “A well regulated militia being

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

army was a secondary one.” Dissent at 9 n.10. Gerry’s obvious

fear was that a standing army would be erected as an auxiliary

defense of “a free State,” and that eventually such an army

would entirely displace the militia. That Gerry worried a

standing army would be understood as the “secondary” security

of a free state, however, indicates that he understood “a free

State” to mean the new country as a whole. After all, no one

16

The dissent suggests that our opinion consists largely of dicta.

Dissent at 1. But dictum refers to reasoning that does not support the

holding of a case. We think all of our reasoning (whether correct or

not) directly supports our holding. By contrast, the dissent’s “free

State” discussion might be thought superfluous.

49

contended that a standing federal army would be used to protect

individual states. It was the entire nation, including the District

of Columbia, that a standing army would be erected to defend,

and thus if a standing army were to supplant the militia in

securing “a free State,” the “State” in question would

undoubtedly have been the United States.

The use of both the indefinite article and the modifier “free”

with the word “state,” moreover, is unique to the Second

Amendment. Elsewhere the Constitution refers to “the states”

or “each state” when unambiguously denoting the domestic

political entities such as Virginia, etc. With “a free State,” we

understand the framers to have been referring to republican

government generally. The entire purpose of making the militia

subject to the authority of the national government was that a

standing army would not be necessary. The District’s militia,

organized by Congress in 1803, see Act of March 3, 1803, ch.

XX, 2 Stat. 215, was no less integral to that national function

than its state counterparts. That the D.C. militia is not a state

militia does not make it any less necessary to the “security of a

free State.”

The dissent notes a Supreme Court statement in Perpich v.

Department of Defense, 496 U.S. 334 (1990), that “there was a

widespread fear that a national standing Army posed an

intolerable threat to individual liberty and to the sovereignty of

the separate States.” Id. at 340 (emphasis added in dissent).

However, the dissent overlooks the other concern with standing

armies—that they would pose a threat to individual liberty. The

language from Perpich is entirely consistent, then, with the view

that the American people at large (including the residents of the

District) would be equally threatened by the presence of a

standing army. And it directly contradicts the dissent’s position

that the Second Amendment was concerned exclusively with the

preservation of state power.

50

Our dissenting colleague—in order to give a meaning to

“the people” in the Second Amendment consistent with her

interpretation—analogizes to “the people” in the Tenth

Amendment. Dissent at 5 n.5. Contrary to her suggestion,

however, the Tenth Amendment does not limit “the people” to

state citizens. Rather, the Tenth Amendment reserves powers to

“the States respectively, or to the people.” The dissent provides

no case holding that “the people,” as used in the Tenth

Amendment, are distinct from “the people” referred to

elsewhere in the Bill of Rights. The one case relied upon, Lee

v. Flintkote, 593 F.2d 1275, 1278 n.14 (D.C. Cir. 1979), is

inapposite. That case merely contrasts the District, on the one

hand, with the states, on the other; the meaning of “the people”

as used in the Tenth Amendment was not at issue. Indeed,

Verdugo-Urquidez, 494 U.S. at 265, directly contradicts the

dissent’s reading of “the people” in the Tenth Amendment, just

as it contradicts the restrictive reading of “the people” in the

Second.

V

The third alternative argument the District presents is that,

even if the Second Amendment protects an individual right and

applies to the District, it does not bar the District’s regulation,

indeed its virtual prohibition, of handgun ownership.

The District contends that modern handguns are not the sort

of weapons covered by the Second Amendment. But the

District’s claim runs afoul of Miller’s discussion of “Arms.”

The Miller Court concluded that the defendants, who did not

appear in the Supreme Court, provided no showing that short-

barreled (or sawed-off) shotguns—banned by federal

statute—bore “some reasonable relationship to the preservation

or efficiency of a well regulated militia.” Miller, 307 U.S. at

51

178. However, the Court also observed that militiamen were

expected to bring their private arms with them when called up

for service. Those weapons would be “of the kind in common

use at the time.” Id. at 179. There can be no question that most

handguns (those in common use) fit that description then and

now. See Emerson, 270 F.3d at 227 n.22 (assuming that a

Beretta pistol passed the Miller test).

By the terms of the second Militia Act of 1792, all

militiamen were given six months from the date of their

enrollment to outfit themselves with “a good musket or firelock,

a sufficient bayonet and belt, two spare flints, and a knapsack,

a pouch, with a box therein, to contain not less than twenty four

cartridges, suited to the bore of his musket or firelock, each

cartridge to contain a proper quantity of powder and ball: or

with a good rifle, knapsack, shot-pouch, and powder-horn,

twenty balls suited to the bore of his rifle, and a quarter of a

pound of powder . . . .” Act of May 8, 1792, ch. XXXIII, 1 Stat.

271 (emphasis added).

Commissioned officers had somewhat more onerous

requirements. The Act demanded that, in addition to the

foregoing, they “shall severally be armed with a sword or hanger

and espontoon . . . .” Id. at 271-72. Still further demands were

placed on the artillery officers, who were to be “armed with a

sword or hanger, a fusee, bayonet and belt, with a cartridge-box

to contain twelve cartridges . . . .” Id. at 272. But

commissioned cavalry officers and dragoons had to assume an

even greater expense, perhaps due to the fact that these were

volunteer positions reserved for the well-off. The cavalry

officers were required to procure “good horses of at least

fourteen hands and a half high, and to be armed with a sword

and pair of pistols, the holsters of which to be covered with

bearskin caps.” The dragoon had it even worse, being required

to furnish himself “a serviceable horse, at least fourteen hands

52

and a half high, a good saddle, bridle, mailpillion and valise,

holsters, and a breast-plate and crupper, a pair of boots and

spurs, a pair of pistols, a sabre, and a cartouch-box, to contain

twelve cartridges for pistols.” Id. at 272 (emphasis added).

These items were not mere antiques to be hung above the

mantle. Immediately following the list of required weapons

purchases, the Act provided that militiamen “shall appear so

armed, accoutred and provided, when called out to exercise, or

into service . . . .” Id. (emphasis added). The statute even

planned phased-in upgrades in the quality of the militia’s

firearms: “[F]rom and after five years from the passing of this

act, all muskets for arming the militia as herein required, shall

be of bores sufficient for balls of the eighteenth part of a

pound.” Id. at 271-72.

It follows that the weapons described in the Act were in

“common use” at the time, particularly when one considers the

widespread nature of militia duty. Included among these militia

weapons were long guns (i.e., muskets and rifles) and pistols.

Moreover, the Act distinguishes between the weapons citizens

were required to furnish themselves and those that were to be

supplied by the government. For instance, with respect to an

artillery private (or “matross”), the Act provides that he should

“furnish himself with all the equipments of a private in the

infantry, until proper ordnance and field artillery is provided.”

Id. at 272. The Act required militiamen to acquire weapons that

were in common circulation and that individual men would be

able to employ, such as muskets, rifles, pistols, sabres, hangers,

etc., but not cumbersome, expensive, or rare equipment such as

cannons. We take the outfitting requirements of the second

Militia Act to list precisely those weapons that would have

satisfied the two prongs of the Miller arms test. They bore a

“reasonable relationship to the preservation or efficiency of a

well regulated militia,” because they were the very arms needed

53

for militia service. And by the terms of the Act, they were to be

personally owned and “of the kind in common use at the time.”

The modern handgun—and for that matter the rifle and

long-barreled shotgun—is undoubtedly quite improved over its

colonial-era predecessor, but it is, after all, a lineal descendant

of that founding-era weapon, and it passes Miller’s standards.

Pistols certainly bear “some reasonable relationship to the

preservation or efficiency of a well regulated militia.” They are

also in “common use” today, and probably far more so than in

1789. Nevertheless, it has been suggested by some that only

colonial-era firearms (e.g., single-shot pistols) are covered by

the Second Amendment. But just as the First Amendment free

speech clause covers modern communication devices unknown

to the founding generation, e.g., radio and television, and the

Fourth Amendment protects telephonic conversation from a

“search,” the Second Amendment protects the possession of the

modern-day equivalents of the colonial pistol. See, e.g., Kyllo

v. United States, 533 U.S. 27, 31-41 (2001) (applying Fourth

Amendment standards to thermal imaging search).

That is not to suggest that the government is absolutely

barred from regulating the use and ownership of pistols. The

protections of the Second Amendment are subject to the same

sort of reasonable restrictions that have been recognized as

limiting, for instance, the First Amendment. See Ward v. Rock

Against Racism, 491 U.S. 781, 791 (1989) (“[G]overnment may

impose reasonable restrictions on the time, place, or manner of

protected speech . . . .”). Indeed, the right to keep and bear

arms—which we have explained pre-existed, and therefore was

preserved by, the Second Amendment—was subject to

restrictions at common law. We take these to be the sort of

reasonable regulations contemplated by the drafters of the

Second Amendment. For instance, it is presumably reasonable

“to prohibit the carrying of weapons when under the influence

54

of intoxicating drink, or to a church, polling place, or public

assembly, or in a manner calculated to inspire terror . . . .” State

v. Kerner, 107 S.E. 222, 225 (N.C. 1921). And as we have

noted, the United States Supreme Court has observed that

prohibiting the carrying of concealed weapons does not offend

the Second Amendment. Robertson, 165 U.S. at 281-82.

Similarly, the Court also appears to have held that convicted

felons may be deprived of their right to keep and bear arms. See

Lewis v. United States, 445 U.S. 55, 65 n.8 (1980) (citing Miller,

307 U.S. at 178). These regulations promote the government’s

interest in public safety consistent with our common law

tradition. Just as importantly, however, they do not impair the

core conduct upon which the right was premised.

Reasonable restrictions also might be thought consistent

with a “well regulated Militia.” The registration of firearms

gives the government information as to how many people would

be armed for militia service if called up. Reasonable firearm

proficiency testing would both promote public safety and

produce better candidates for military service. Personal

characteristics, such as insanity or felonious conduct, that make

gun ownership dangerous to society also make someone

unsuitable for service in the militia. Cf. D.C. Code § 49-401

(excluding “idiots, lunatics, common drunkards, vagabonds,

paupers, and persons convicted of any infamous crime” from

militia duty). On the other hand, it does not follow that a person

who is unsuitable for militia service has no right to keep and

bear arms. A physically disabled person, for instance, might not

be able to participate in even the most rudimentary organized

militia. But this person would still have the right to keep and

bear arms, just as men over the age of forty-five and women

would have that right, even though our nation has traditionally

excluded them from membership in the militia. As we have

55

explained, the right is broader than its civic purpose. See

Volokh, supra, at 801-07.17

D.C. Code § 7-2502.0218 prohibits the registration of a

pistol not registered in the District by the applicant prior to

1976.19 The District contends that since it only bans one type of

firearm, “residents still have access to hundreds more,” and thus

17

Of course, the District’s virtual ban on handgun ownership is

not based on any militia purpose. It is justified solely as a measure to

protect public safety. As amici point out, and as D.C. judges are well

aware, the black market for handguns in the District is so strong that

handguns are readily available (probably at little premium) to

criminals. It is asserted, therefore, that the D.C. gun control laws

irrationally prevent only law abiding citizens from owning handguns.

It is unnecessary to consider that point, for we think the D.C. laws

impermissibly deny Second Amendment rights.

18

The relevant text of the provision reads as follows:

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

...

(4) Pistol not validly registered to the current registrant in the

District prior to September 24, 1976, except that the provisions

of this section shall not apply to any organization that employs at

least 1 commissioned special police officer or other employee

licensed to carry a firearm and that arms the employee with a

firearm during the employee's duty hours or to a police officer

who has retired from the Metropolitan Police Department.

D.C. Code § 7-2502.02.

19

Although not relevant here, there is also an exception to the

registration restriction for retired police officers of the Metropolitan

Police Department. See D.C. Code § 7-2502.02(b) .

56

its prohibition does not implicate the Second Amendment

because it does not threaten total disarmament. We think that

argument frivolous. It could be similarly contended that all

firearms may be banned so long as sabers were permitted. Once

it is determined—as we have done—that handguns are “Arms”

referred to in the Second Amendment, it is not open to the

District to ban them. See Kerner, 107 S.E. at 225 (“To exclude

all pistols . . . is not a regulation, but a prohibition, of . . . ‘arms’

which the people are entitled to bear.”). Indeed, the pistol is the

most preferred firearm in the nation to “keep” and use for

protection of one’s home and family. See Gary Kleck & Marc

Gertz, Armed Resistance to Crime: The Prevalence and Nature

of Self-Defense with a Gun, 86 J. CRIM. L. & CRIMINOLOGY 150,

182-83 (1995). And, as we have noted, the Second

Amendment’s premise is that guns would be kept by citizens for

self-protection (and hunting).

D.C. Code § 22-450420 restricts separately the carrying of

20

The relevant text of the provision reads as follows:

(a) No person shall carry within the District of Columbia either

openly or concealed on or about their person, a pistol, without a

license issued pursuant to District of Columbia law, or any

deadly or dangerous weapon capable of being so concealed.

Whoever violates this section shall be punished as provided in §

22-4515, except that:

(1) A person who violates this section by carrying a pistol,

without a license issued pursuant to District of Columbia law, or

any deadly or dangerous weapon, in a place other than the

person’s dwelling place, place of business, or on other land

possessed by the person, shall be fined not more than $5,000 or

imprisoned for not more than 5 years, or both . . . .

D.C. Code § 22-4504.

57

a pistol. Appellant Heller challenges this provision and a

companion provision, § 22-4506, insofar as they appear to ban

moving a handgun from room to room in one’s own house, even

if one has lawfully registered the firearm (an interpretation the

District does not dispute). In order to carry a pistol anywhere in

the District (inside or outside the home), one must apply for and

obtain an additional license from the Chief of Police, whom the

Code gives complete discretion to deny license applications.

Heller does not claim a legal right to carry a handgun outside his

home, so we need not consider the more difficult issue whether

the District can ban the carrying of handguns in public, or in

automobiles. It is sufficient for us to conclude that just as the

District may not flatly ban the keeping of a handgun in the

home, obviously it may not prevent it from being moved

throughout one’s house. Such a restriction would negate the

lawful use upon which the right was premised—i.e, self-defense.

Finally, there is the District’s requirement under D.C. Code

§ 7-2507.02 that a registered firearm be kept “unloaded and

disassembled or bound by trigger lock or similar device, unless

such firearm is kept at [a] place of business, or while being used

for lawful recreational purposes within the District of

Columbia.” This provision bars Heller from lawfully using a

handgun for self protection in the home because the statute

allows only for use of a firearm during recreational activities.

As appellants accurately point out, § 7-2507.02 would reduce a

pistol to a useless hunk of “metal and springs.” Heller does not

appear to challenge the requirement that a gun ordinarily be kept

unloaded or even that a trigger lock be attached under some

circumstances. He simply contends that he is entitled to the

possession of a “functional” firearm to be employed in case of

a threat to life or limb. The District responds that,

notwithstanding the broad language of the Code, a judge would

likely give the statute a narrowing construction when confronted

with a self-defense justification. That might be so, but judicial

58

lenity cannot make up for the unreasonable restriction of a

constitutional right. Section 7-2507.02, like the bar on carrying

a pistol within the home, amounts to a complete prohibition on

the lawful use of handguns for self-defense. As such, we hold

it unconstitutional.

VI

For the foregoing reasons, the judgment of the district court

is reversed and the case is remanded. Since there are no

material questions of fact in dispute, the district court is ordered

to grant summary judgment to Heller consistent with the prayer

for relief contained in appellants’ complaint.

KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:

As has been noted by Fifth Circuit Judge Robert M. Parker

in United States v. Emerson, 270 F.3d 203, 272 (2001) (“The

fact that the 84 pages of dicta contained in [the majority

opinion] are interesting, scholarly, and well written does not

change the fact that they are dicta and amount to at best an

advisory treatise on this long-running debate.”) (Parker, J.,

concurring), exhaustive opinions on the origin, purpose and

scope of the Second Amendment to the United States

Constitution have proven to be irresistible to the federal

judiciary. See, e.g., Silveira v. Lockyer, 312 F.3d 1052, 1060-87

(9th Cir. 2003) (as amended); Emerson, 270 F.3d at 218-72.

The result has often been page after page of “dueling

dicta”—each side of the debate offering law review articles and

obscure historical texts to support an outcome it deems proper.

Today the majority adds another fifty-plus pages to the pile.1 Its

superfluity is even more pronounced, however, because the

meaning of the Second Amendment in the District of Columbia

(District) is purely academic. Why? As Judge Walton declared

in Seegars v. Ashcroft, 297 F. Supp. 2d 201, 239 (D.D.C. 2004),

aff’d in part, rev’d in part sub nom. Seegars v. Gonzales, 396

1

In declaring the District’s challenged firearms ordinances

unconstitutional, the majority takes over 45 pages, Maj. Op. at 12-58,

explaining that the Second Amendment establishes an unrestricted

individual right to keep and bear arms, see id. at 46. Its analysis can

be summarized as follows: The Second Amendment’s guarantee

clause—“the right of the people to keep and bear Arms, shall not be

infringed”—endows “the people” with a right analogous to the

individual rights guaranteed in the First and Fourth Amendments. Id.

at 18-21 (citing United States v. Verdugo-Urquidez, 494 U.S. 259, 265

(1990)). That right is unrestricted by the prefatory clause—“A well

regulated Militia, being necessary to the security of a free

State”—which simply enunciates the Amendment’s “civic purpose,”

Maj. Op. at 46, and modifies only the word “Arms” in the operative

clause, id. at 37-38 (citing United States v. Miller, 307 U.S. 174

(1939)).

2

F.3d 1248, reh’g en banc denied, 413 F.3d 1 (2005), “the

District of Columbia is not a state within the meaning of the

Second Amendment and therefore the Second Amendment’s

reach does not extend to it.” For the following reasons, I

respectfully dissent.

I.

As our court has recognized, the United States Supreme

Court’s guidance on the Second Amendment is “notoriously

scant.” Fraternal Order of Police v. United States, 173 F.3d 898,

906 (D.C. Cir. 1999) (FOP). While scant it may be, it is, at least

to me, unmistakable in one respect. And in that one respect, it

dooms appellant Heller’s challenge.2

In United States v. Miller, 307 U.S. 174 (1939), the only

twentieth-century United States Supreme Court decision that

analyzes the scope of the Second Amendment, the Government

appealed the district court’s quashing of an indictment that

charged Miller (and one other) with a violation of section 11 of

2

The other five appellants lack standing, see Seegars v. Gonzalez,

396 F.3d 1248 (D.C. Cir. 2005), and Heller has standing to challenge

only D.C. Code § 7-2502.02(a)(4), under which he applied for, and

was denied, a pistol permit. The only difference between the standing

of the appellants in this case and that of the Seegars appellants relates

to Heller’s permit denial. That is, none of the appellants here,

including Heller, faces imminent injury from D.C. Code § 7-2507.02,

which requires that any registered firearm be kept unloaded and

disassembled or bound by a trigger lock or similar device, or section

22-4504, which prohibits carrying an unregistered pistol. They

“allege no prior threats against them [based on those provisions] or

any characteristics indicating an especially high probability of

enforcement [of those provisions] against them.” Seegars, 396 F.3d

at 1255. Although the appellants lack an administrative remedy with

respect to the trigger lock provision, we have already decided “its

absence is not enough to render [their] claim[s] justiciable if the

imminence of the threatened injury is inadequate.” Id. at 1256.

3

the National Firearms Act, Pub. L. No. 474, 48 Stat. 1236, 26

U.S.C. §§ 1132 et seq. (1934), by transporting in interstate

commerce an unregistered, short-barreled shotgun. Miller, 307

U.S. at 175 & n.1. The district court had quashed the indictment

because it concluded that section 11 of the National Firearms

Act violated the Second Amendment. Id. at 177. The High

Court disagreed, declaring:

In the absence of any evidence tending to show that

possession or use of a ‘shotgun having a barrel of less

than eighteen inches in length’ at this time has some

reasonable relationship to the preservation or efficiency

of a well regulated militia, we cannot say that the

Second Amendment guarantees the right to keep and

bear such an instrument. Certainly it is not within

judicial notice that this weapon is any part of the

ordinary military equipment or that its use could

contribute to the common defense.

Id. at 178 (emphases added). Then, quoting Article I, § 8 of the

Constitution,3 the Court succinctly—but unambiguously—set

down its understanding of the Second Amendment: “With

3

Article I, section 8 of the Constitution provides:

The Congress shall have Power . . .

To provide for calling forth the Militia to execute the

Laws of the Union, suppress Insurrections and repel

Invasions;

To provide for organizing, arming, and disciplining, the

Militia, and for governing such Part of them as may be

employed in the Service of the United States, reserving to the

States respectively, the Appointment of the Officers, and the

Authority of training the Militia according to the discipline

prescribed by Congress.

U.S. Const., Art. I, § 8, cls. 15-16.

4

obvious purpose to assure the continuation and render possible

the effectiveness of such forces the declaration and guarantee

of the Second Amendment were made. It must be interpreted

and applied with that end in view.” Id. (emphases added). By

these words, it emphatically declared that the entire Second

Amendment—both its “declaration” and its “guarantee”—“must

be interpreted and applied” together. Id.4 Construing its two

4

Nine of our sister circuits have noted that the declaratory clause

modifies the guarantee clause. See Silveira, 312 F.3d at 1066 (“The

amendment protects the people’s right to maintain an effective state

militia, and does not establish an individual right to own or possess

firearms for personal or other use.”); Gillespie v. City of Indianapolis,

185 F.3d 693, 711 (7th Cir. 1999) (“Because Gillespie has no

reasonable prospect of being able to demonstrate . . . a nexus between

the firearms disability imposed by the statute and the operation of state

militias, [the district court judge] was right to dismiss his Second

Amendment claim.”); United States v. Wright, 117 F.3d 1265, 1273

(11th Cir. 1997) (“[T]he Miller Court understood the Second

Amendment to protect only the possession or use of weapons that is

reasonably related to a militia actively maintained and trained by the

states.”); United States v. Rybar, 103 F.3d 273, 286 (3d Cir. 1996)

(“[T]he Miller Court assigned no special importance to the character

of the weapon itself, but instead demanded a reasonable relationship

between its ‘possession or use’ and militia-related activity.”(quoting

Miller, 307 U.S. at 178)); Love v. Pepersack, 47 F.3d 120, 124 (4th

Cir. 1995) (“The courts have consistently held that the Second

Amendment only confers a collective right of keeping and bearing

arms which must bear a ‘reasonable relationship to the preservation or

efficiency of a well-regulated militia.’” (quoting Miller, 307 U.S. at

178)); United States v. Hale, 978 F.2d 1016, 1020 (8th Cir. 1992)

(“Whether the ‘right to bear arms’ for militia purposes is ‘individual’

or ‘collective’ in nature is irrelevant where, as here, the individual’s

possession of arms is not related to the preservation or efficiency of a

militia.”); United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977)

(“The purpose of the second amendment as stated by the Supreme

Court in United States v. Miller . . . was to preserve the effectiveness

5

clauses together so that, as Miller declares, the right of the

people5 to keep and bear arms relates to those Militia whose

and assure the continuation of the state militia. The Court stated that

the amendment must be interpreted and applied with that purpose in

view.”); United States v. Warin, 530 F.2d 103, 106 (6th Cir. 1976)

(“[T]he Second Amendment right ‘to keep and bear Arms’ applies

only to the right of the State to maintain a militia and not to the

individual’s right to bear arms . . . .” (internal quotation omitted));

Cases v. United States, 131 F.2d 916, 923 (1st Cir. 1942) (“[T]here is

no evidence that the appellant was or ever had been a member of any

military organization or that his use of the weapon under the

circumstances disclosed was in preparation for a military career.”). In

Cases, the First Circuit considered, inter alia, a Puerto Rican criminal

defendant’s Second Amendment challenge to the Federal Firearms

Act. Significantly, the court qualified its Second Amendment analysis

as follows:

The applicability of the restriction imposed by the Second

Amendment upon the power of Congress to legislate for

Puerto Rico, or for that matter any territory, raises questions

of no little complexity. However, we do not feel called upon

to consider them because we take the view that the Federal

Firearms Act does not unconstitutionally infringe the

appellant’s right, if any one in a territory has any right at all,

to keep and bear arms.

Cases, 131 F.2d at 920.

5

I have not overlooked the language in United States v. Verdugo-

Urquidez, 494 U.S. 259, 265 (1990), to the effect that “the people” as

used in various of the first Ten Amendments refers to “a class of

persons who are part of a national community or who have otherwise

developed sufficient connection with this country to be considered

part of that community.” But just as the Tenth Amendment ties the

rights reserved thereunder to “the people” of the individual “States,”

thereby excluding “the people” of the District, cf. Lee v. Flintkote Co.,

593 F.2d 1275, 1278 n.14 (D.C. Cir. 1979) (“[T]he District, unlike the

states, has no reserved power to be guaranteed by the Tenth

6

continued vitality is required to safeguard the individual States,

I believe that, under Miller, the District is inescapably excluded

from the Second Amendment because it is not a State.6 However

the Second Amendment right has been subsequently labeled by

others—whether collective, individual or a modified version of

either—Miller’s label is the only one that matters.7 And until

and unless the Supreme Court revisits Miller, its reading of the

Second Amendment is the one we are obliged to follow. See

Welch v. Tex. Dep’t of Highways & Pub. Transp., 483 U.S. 468,

Amendment.”), the Second Amendment similarly limits “the people”

to those of the States, cf. Adams v. Clinton, 90 F. Supp. 2d 35, 45

(D.D.C. 2000) (“Although standing alone the phrase ‘people of the

several States’ [in Article I, § 2, cl.1] could be read as meaning all the

people of the ‘United States’ and not simply those who are citizens of

individual states, [Article I’s] subsequent and repeated references to

‘state[s]’ . . . make clear that the former was not intended.”); see also

Verdugo-Urquidez, 494 U.S. at 265 (citing U.S. Const. Art. I, § 2, cl.

1).

6

Nor do the Militia Clauses (U.S. Const. Art. I, § 8, cls. 15,16)

conflict with the view that the “Militia” of the Second Amendment

means those of the States. As used in the Militia Clauses, “Militia” is

plural. Indeed, Article I, section 8, clause 16 states that the Congress

shall have the power “[t]o provide for organizing, arming, and

disciplining, the Militia, and for governing such Part of them.”

(emphasis added). Article II, section 2 also indicates the Militia

Clauses refer to “the Militia of the several States.” U.S. Const. Art. II,

§ 2, cl. 1 (emphasis added); cf. Oxford English Dictionary 768 (2d ed.

1989) (“Militia” “4. spec. a. Orig., the distinctive name of a branch of

the British military service, forming, together with the volunteers,

what are known as ‘the auxiliary forces’ as distinguished from the

regular army. . . . (Construed either as sing. or plural.)”).

7

Our court has previously “assume[d]” the Miller “test” to mean

that the guarantee must be read in light of the declaration. See FOP,

173 F.3d at 906.

7

478-79 (1987) (“The rule of law depends in large part on

adherence to the doctrine of stare decisis.”); United States v.

Rybar, 103 F.3d 273, 286 (3d Cir. 1996) (“As one of the inferior

federal courts subject to the Supreme Court’s precedents, we

have neither the license nor the inclination to engage in such

freewheeling presumptuousness.” (responding to argument that

Miller is “wrong in its superficial (and one-sided) analysis of the

Second Amendment” (internal quotation omitted))).8

8

One nineteenth-century Supreme Court precedent, United States

v. Cruikshank, 92 U.S. 542 (1875), is included in almost every

discussion of the Second Amendment. Miller, however, does not cite

Cruikshank, and for good reason. In that case, several criminal

defendants challenged their convictions under the Enforcement Act of

1870 making it unlawful to threaten or intimidate “‘any citizen, with

intent to prevent or hinder his free exercise and enjoyment of any right

or privilege granted or secured to him by the constitution or laws of

the United States.’” Id. at 548 (quoting 16 Stat. 141). In setting aside

their convictions, the Supreme Court declared:

[The right to bear arms for any lawful purpose] is not a right

granted by the Constitution. Neither is it in any manner

dependent upon that instrument for its existence. The second

amendment declares that it shall not be infringed; but this, as

has been seen, means no more than that it shall not be

infringed by Congress.

Id. at 553. This language does not conflict with Miller—as I read

Miller—because it does not define the right but simply recognizes that

the right, whatever its content, cannot be infringed by the federal

government. More interesting is the nineteenth-century case Miller

does cite, Presser v. Illinois, 92 U.S. 542 (1886). There, the Court

upheld state legislation against a Second Amendment challenge,

relying on Cruikshank’s holding that the Second Amendment

constrains the national government only. The Court then included the

following language:

[T]he states cannot, even laying the constitutional provision

in question out of view, prohibit the people from keeping and

8

II.

The Supreme Court has long held that “State” as used in the

Constitution refers to one of the States of the Union. Chief

Justice John Marshall, in rejecting the argument that the District

constitutes a “State” under Article III, section 2 of the

Constitution and, derivatively, the Judiciary Act of 1789,

explained:

[I]t has been urged that Columbia is a distinct political

society; and is therefore “a state” according to the

definitions of writers on general law. This is true. But

as the act of congress obviously uses the word “state” in

reference to that term as used in the constitution, it

becomes necessary to inquire whether Columbia is a

state in the sense of that instrument. The result of that

examination is a conviction that the members of the

American confederacy only are the states contemplated

in the constitution. . . . [T]he word state is used in the

constitution as designating a member of the union, and

excludes from the term the signification attached to it by

writers on the law of nations.

Hepburn & Dundas v. Ellzey, 6 U.S. 445, 452-53 (1805)

(emphasis added); see also De Geofroy v. Riggs, 133 U.S. 258,

269 (1890). In fact, the Constitution uses “State” or “States”

119 times apart from the Second Amendment and in 116 of the

bearing arms, so as to deprive the United States of their

rightful resource for maintaining the public security, and

disable the people from performing their duty to the general

government.

Id. at 584.

9

119, the term unambiguously refers to the States of the Union.9

U.S. Const., passim. Accepted statutory construction directs

that we give “State” the same meaning throughout the

Constitution. Cf. Sorenson v. Sec’y of the Treasury, 475 U.S.

851, 860 (1986) (“The normal rule of statutory construction

assumes that identical words used in different parts of the same

act are intended to have the same meaning.” (internal quotations

omitted)).10

9

In three instances the Constitution refers to a “foreign State,” see

U.S. Const. Art. I, § 9, cl. 8; id. Art. III, § 2, cl. 1; id. amend. XI.

“State” with a plainly different meaning also appears in reference to

the President’s “State of the Union.” Id. Art. II, § 3, cl. 1. The

Constitution refers to “a” State five times. See id. Art. III, § 2, cls. 1,

2; id. amend. XXIII, § 1, cl. 2. A descriptive adjective precedes

“State” two times. See id. Art. IV, § 3, cl. 1 (“no new State”); id.

amend. XXIII, § 1, cl. 2 (“the least populous State”).

10

The legislative history of the Second Amendment also supports

the interpretation of “State” as one of the States of the Union. In the

First Congress, James Madison proposed language that a well-

regulated militia was “the best security of a free country.” David

Yassky, The Second Amendment: Structure, History, and

Constitutional Change, 99 Mich. L. Rev. 588, 610 (2000) (citing

Creating the Bill of Rights: The Documentary Record from the First

Federal Congress 12 (Helen E. Veit, Kenneth R. Bowling & Charlene

Bangs Bickford eds., 1991) (Documentary Record)) (emphasis added).

After the proposal was submitted to an eleven-member House of

Representatives committee (including Madison), however, “country”

was changed to “State.” Id. (citing Documentary Record, supra, at

30). As Judge Walton noted:

Anti-Federalist Elbridge Gerry explained that changing the

language to “necessary to the security of a free State”

emphasized the primacy of the state militia over the federal

standing army: “A well-regulated militia being the best

security of a free state, admitted an idea that a standing army

was a secondary one.”

10

Although “the Constitution is in effect . . . in the District,”

O’Donoghue v. United States, 289 U.S. 516, 541 (1933) , as it

is in the States, “[a] citizen of the district of Columbia is not a

citizen of a state within the meaning of the constitution.”

Hepburn, 6 U.S. at 445 (emphasis in original). Accordingly,

both the Supreme Court and this court have consistently held

that several constitutional provisions explicitly referring to

citizens of “States” do not apply to citizens of the District. See

id. at 452-53; see also Bolling v. Sharpe, 347 U.S. 497, 498-99

(1954) (District not “State” under Fourteenth Amendment);

Adams v. Clinton, 531 U.S. 941 (2000), aff’g 90 F. Supp. 2d 35

(D.D.C. 2000) (three-judge district court held that Constitution

does not guarantee District citizens right to vote for members of

Congress because District does not constitute “State” within

Constitution’s voting clauses11); LaShawn v. Barry, 87 F.3d

1389, 1394 n.4 (D.C. Cir. 1996) (“The District of Columbia is

not a state. It is the seat of our national government . . . . Thus,

[the Eleventh Amendment] has no application here.”); Lee v.

Flintkote Co., 593 F.2d 1275, 1278 n.14 (D.C. Cir. 1979)

(“[T]he District, unlike the states, has no reserved power to be

guaranteed by the Tenth Amendment.”). On the other hand, the

Supreme Court and this court have held that the District can

Seegars, 297 F. Supp. 2d at 229 (internal quotation omitted) (citing

Yassky, supra (quoting The Congressional Register, August 17,

1789)). Indeed, in light of the meaning of “State” as used throughout

the Constitution, see supra p. 5, and the care the drafters are presumed

to have taken in selecting specific language, see Holmes v. Jennison,

39 U.S. 540, 570-71 (1840) (“Every word [in the Constitution]

appears to have been weighed with the utmost deliberation, and its

force and effect to have been fully understood.”), the change plainly

suggests that the drafters intended to clarify that the right established

in the Second Amendment was intended to protect the “free[dom]” of

the “State[s]” of the Union rather than the “country.”

11

U.S. Const. Art. I, §§ 2-4.

11

parallel a “State” within the meaning of some constitutional

provisions. Loughran v. Loughran, 292 U.S. 216, 228 (1934)

(Full Faith and Credit Clause binds “courts of the District . . .

equally with courts of the states”); Milton S. Kronheim & Co. v.

District of Columbia, 91 F.3d 193, 198-99 (D.C. Cir. 1996)

(while “D.C. is not a state,” Commerce Clause and Twenty-first

Amendment apply to District). Ultimately, “[w]hether the

District of Columbia constitutes a ‘State or Territory’ within the

meaning of any particular statutory or constitutional provision

depends upon the character and aim of the specific provision

involved.” District of Columbia v. Carter, 409 U.S. 418, 419-20

(1973) (emphasis added).

The Second Amendment’s “character and aim” does not

require that we treat the District as a State. The Amendment

was drafted in response to the perceived threat to the

“free[dom]” of the “State[s]” posed by a national standing army

controlled by the federal government. See, e.g., Emerson, 270

F.3d at 237-40, 259; Silveira, 312 F.3d at 1076. In Miller, the

Supreme Court explained that “[t]he sentiment of the time [of

the Amendment’s drafting] strongly disfavored standing armies;

the common view was that adequate defense of country and laws

could be secured through the Militia” composed of men who

“were expected to appear bearing arms supplied by themselves.”

307 U.S. at 179. Indeed, at the time of the Constitutional

Convention, “there was a widespread fear that a national

standing Army posed an intolerable threat to individual liberty

and to the sovereignty of the separate States.” Perpich v. Dep’t

of Defense, 496 U.S. 334, 340 (1990) (emphasis added). The

Second Amendment, then, “aimed” to secure a military balance

of power between the States on the one hand and the federal

12

government on the other.12 Unlike the States, the District

had—and has—no need to protect itself from the federal

government because it is a federal entity created as the seat of

that government.

[T]he Second Amendment was included in the Bill of

Rights to ensure that the people would have the ability

to defend themselves against a potentially oppressive

federal government, which had just been given the

authority to maintain a national standing army in Article

I of the Constitution. But, the drafters of the

Constitution having provided for a ‘District . . . [to]

12

As noted in Seegars:

[I]n his efforts to convince the people of the advantages of the

Constitution in The Federalist Papers, James Madison noted

that although the federal government had a standing army, the

people would have the use of militias, stating:

Let a regular army, fully equal to the resources of the

country, be formed; and let it be entirely at the

devotion of the federal government: still it would not

be going too far to say that the State governments

with the people on their side would be able to repel

the danger. . . . Besides the advantage of being

armed, which the Americans possess over the people

of almost every other nation, the existence of

subordinate governments, to which the people are

attached and by which the militia officers are

appointed, forms a barrier against the enterprises of

ambition, more insurmountable than any which a

simple government of any form can admit of.

Seegars, 297 F. Supp. 2d at 235 (internal quotation omitted) (quoting

The Federalist No. 46, at 267 (Clinton Rossiter ed., 1961)).

13

become the Seat of the Government of the United

States,’ and having given Congress ‘exclusive’ authority

both to legislate over this District and to exercise control

over ‘the Erection of Forts, Magazines, [and] Arsenals

. . . ,’ surely it was not intended for the protection

afforded by the Second Amendment to apply to an entity

that had been created to house the national seat of

government. In other words, there is no reason to

believe that the First Congress thought that the federal

seat of government needed to be protected from itself

when the Second Amendment was adopted.

Seegars, 297 F. Supp. 2d at 238-39 (internal citations omitted)

(emphasis and alterations in original);13 see also Sandidge v.

13

Even if the District were to be considered a “State” under the

Second Amendment, I do not believe D.C. Code § 7-2502.02(a)(4)

could be challenged thereunder. When adopted, the Bill of Rights

protected individuals only against the federal government. See, e.g.,

Barron v. City of Baltimore, 32 U.S. 243, 247 (1833). Under the

“incorporation” doctrine, however, “many of the rights guaranteed by

the first eight Amendments to the Constitution have been held [by the

Supreme Court] to be protected against state action by the Due Process

Clause of the Fourteenth Amendment.” Duncan v. Louisiana, 391

U.S. 145, 149 (1968) (Sixth Amendment right to jury trial in criminal

case protected against state action); see also Benton v. Maryland, 395

U.S. 784, 795 (1969) (“Once it is decided that a particular Bill of

Rights guarantee is fundamental to the American scheme of justice,

the same constitutional standards apply against both the State and

Federal Governments.” (internal quotation and citation omitted)). But

the Supreme Court has never held that the Second Amendment has

been incorporated. Cf. United States v. Cruikshank, 92 U.S. 542, 553

(1875) (“[The Second Amendment] is one of the amendments that has

no other effect than to restrict the powers of the national government

. . . .”); see also Love, 47 F.3d at 123 (“The Second Amendment does

14

United States, 520 A.2d 1057, 1058 (D.C. 1987) (“assuming the

second amendment applies to the District of Columbia,”

majority holds “the Second Amendment guarantees a collective

rather than an individual right” (internal quotation omitted)); see

also id. at 1059 (Nebeker, J., concurring) (“I conclude first that

[the Second Amendment] does not apply to the Seat of the

Government of the United States.”).

III.

In its origin and operation, moreover, the District is plainly

not a “State” of the Union. It is, instead, “an exceptional

community,” District of Columbia v. Murphy, 314 U.S. 441, 452

(1941), that “[u]nlike either the States or Territories, . . . is truly

sui generis in our governmental structure.” Carter, 409 U.S. at

not apply to the states.” (citing Cruikshank, 92 U.S. 542)); Cases, 131

F.2d at 921-22 (“Whatever rights . . . the people may have [under the

Second Amendment] depend upon local legislation; the only function

of the Second Amendment being to prevent the federal government

and the federal government only from infringing that right.” (citing

Cruikshank, 92 U.S. at 553)). Thus, the Amendment does not apply

to gun laws enacted by the States. Because the Second Amendment

“was specifically included by the drafters of the Bill of Rights to

protect the states against a potentially oppressive federal government,”

Seegars, 297 F. Supp. 2d at 230, it would make little sense to

incorporate the Amendment. Although the District is a federal

enclave and thus the Second Amendment might seem to apply without

regard to incorporation, to hold that the District constitutes a “State”

under the Amendment and yet, at the same time, to treat its laws as

federal is a self-contradiction. In other words, either the District, as a

federal enclave, enacts federal law, including D.C. Code § 7-

2502.02(a)(4), or the District is a “State” and D.C. Code § 7-

2502.02(a)(4) is state legislation to which the unincorporated Second

Amendment does not apply.

15

432. The Constitution provides for the creation of the District

in Article I, granting the Congress the power “[t]o exercise

exclusive Legislation in all Cases whatsoever, over such District

(not exceeding ten Miles square) as may, by Cession of

particular States, and the Acceptance of Congress, become the

Seat of the Government of the United States.” U.S. Const. Art.

I, § 8, cl. 17. As the Supreme Court explained in O’Donoghue,

“The object of the grant of exclusive legislation over the district

was . . . national in the highest sense, and the city organized

under the grant became the city, not of a state, not of a district,

but of a nation.” 289 U.S. at 539-40 (internal quotations and

citations omitted). In other words, the District is “the

capital—the very heart—of the Union itself . . . within which the

immense powers of the general government were destined to be

exercised for the great and expanding population of forty-eight

states.” Id. at 539.

The Congress possesses plenary power over the District and

its officers. Id. “Indeed, ‘[t]he power of Congress over the

District of Columbia includes all the legislative powers which a

state may exercise over its affairs.’” Carter, 409 U.S. at 429

(quoting Berman v. Parker, 348 U.S. 26, 31 (1954)). Although

the Congress delegated certain authority to the District’s local

government in the Home Rule Act of 1973, D.C. Code §§ 1-

201.01 et seq., it reserved the authority to enact legislation “on

any subject,” D.C. Code § 1-206.01, and to repeal legislation

enacted by the local government, id. § 1-206.02(c)(1). See

Bliley v. Kelly, 23 F.3d 507, 508 (D.C. Cir. 1994) (describing

Home Rule Act).

As do the States, the District maintains a “militia” of

“[e]very able-bodied male citizen . . . of the age 18 years and

under the age of 45 years ” residing in the District, D.C. Code §

49-401, which includes an “organized” division that is

16

“designated the National Guard of the District of Columbia,”

D.C. Code § 49-406. Nevertheless, the District is again unique

in that its militia “is essentially a component of the federal

government.” Seegars, 297 F. Supp. 2d at 241. That is, it is

controlled by the federal government and acts only on the order

of the President.14 Executive Order 11,485 authorizes the

Secretary of the United States Department of Defense to

“supervise, administer and control” the District’s National

Guard “while in militia status” and to “order out the National

Guard . . . to aid the civil authorities of the District of

Columbia.” Exec. Order No. 11,485, 34 Fed. Reg. 15,411 § 1

(Oct. 1, 1969). The Executive Order also provides that the

“Commanding General and the Adjutant General of the National

Guard will be appointed by the President,” id. § 3, and that the

Commanding General “shall report to the Secretary of Defense,”

id. § 1; see also D.C. Code § 49-301(a)-(b) (“There shall be

appointed and commissioned by the President of the United

States a Commanding General of the militia of the District of

Columbia . . . . [T]he Commanding General of the militia of the

District of Columbia shall be considered to be an employee of

the Department of Defense.”). Unlike a State Governor who can

14

“The President of the United States shall be the Commander-in-

Chief of the militia of the District of Columbia.” D.C. Code § 49-409

(emphasis added); see also id. § 49-404 (“The enrolled militia shall

not be subject to any duty except when called into the service of the

United States, or to aid the civil authorities in the execution of the

laws or suppression of riots.”); id. § 49-405 (“Whenever it shall be

necessary to call out any portion of the enrolled militia the

Commander-in-Chief shall order out, by draft or otherwise, or accept

as volunteers as many as required.”).

17

mobilize the State militia during civil unrest,15 the Mayor of the

District must request the President to mobilize the District’s

militia. D.C. Code § 49-103 (“[I]t shall be lawful for the Mayor

of the District of Columbia . . . to call on the Commander-in-

Chief to aid . . . in suppressing . . . violence and enforcing the

laws; the Commander-in-Chief shall thereupon order out so

much and such portion of the militia as he may deem necessary

to suppress the same . . . .”). See generally Seegars, 297 F.

Supp. 2d at 240-41 (discussing structure of District’s militia).

To sum up, there is no dispute that the Constitution, case law

and applicable statutes all establish that the District is not a State

within the meaning of the Second Amendment. Under United

States v. Miller, 307 U.S. at 178, the Second Amendment’s

declaration and guarantee that “the right of the people to keep

and bear Arms, shall not be infringed” relates to the Militia of

the States only. That the Second Amendment does not apply to

the District, then, is, to me, an unavoidable conclusion.

For the foregoing reasons, I would affirm the district court’s

dismissal of Heller’s Second Amendment challenge to section

7-2502.02(a)(4) for failure to state a claim for relief under

Federal Rule of Civil Procedure 12(b)(6). I would affirm its

dismissal of the other five appellants’ claims as well as Heller’s

other claims for lack of standing under Federal Rule of Civil

Procedure 12(b)(1). Accordingly, I respectfully dissent.

15

See, e.g., 4 Pa. Code § 7.211(a) (“The Governor will retain

command of State peacekeeping forces during a civil disorder.”)

(emphasis added), (d) (“In the event of disorder, . . . [w]eapons carried

by the National Guard will not be loaded nor will bayonets be fixed

without the specific order of the Governor.”) (emphasis added).