The Three Steps in D.C. v. Heller

It’s a pleasure to be back at Concurring Opinions. I much enjoyed guest blogging here last summer, and the management has been kind enough to invite me back for a few months to cover firearms law issues during the pendency of District of Columbia v. Heller, the landmark Supreme Court case on the Second Amendment right to arms. I’ll cover the briefing, the oral argument on March 18, and the decision, which will probably be issued at the end of the term in June. I also hope to discuss some other firearms law topics such as ConocoPhillips v. Henry, a legal challenge to an Oklahoma law giving employees the right to store their self-defense guns in their locked cars while at work.

On to Heller. I commented on the certiorari briefing during my stint last fall with the fine folks at PrawfsBlawg. This post discusses the merits brief filed by D.C. as petitioner. We’re waiting for Mr. Heller’s merits brief next week, and then his crowd of amici in the week to follow.

The general character of the District’s merits brief is what you’d expect of a lead brief in a Supreme Court case of this magnitude — polished, efficiently written, and in many respects reflective of skilled and thoughtful advocacy. What I want to do here is consider the litigating stance of the District in light of the “pressure points” in Heller — the key moves that each side is asking the Supreme Court to make.

Here’s the question presented in Heller, which the Justices themselves drafted as part of the certiorari grant [bracketed text mine]:

Whether the following provisions — D.C. Code §§ 7.2502.02(a)(4) [banning handguns], 22-4504(a) [banning gun carrying, including at home], and 7.2507.02 [requiring all guns to be both unloaded and locked or disassembled] — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?

The question suggests that the Court has its eye on the right issues. It breaks down naturally into three interpretive steps:

(1) Does the Second Amendment protect a right of individuals?

(2) If so, do individuals enjoy that right regardless of whether they are currently affiliated with a state-regulated militia organization?

(3) If so, then what purposes, of the various purposes for which individuals may wish to keep or bear arms, are constitutionally protected?

Heller wants the Court to answer “yes” to (1) and (2), and to give an answer to (3) that is broad enough to include the purpose of individual self-defense against violent crime. If Heller loses on (1) or (2), he loses his case. But if he wins on both (1) and (2), that may suffice to strike down some of the challenged D.C. gun prohibitions. If Heller prevails on all three steps, it’s almost certain that some of the challenged prohibitions will be held invalid, and Heller may well prevail across the board.

An individual right. Heller is in good shape on the first issue. Indeed, the District of Columbia has endeavored to distinguish its litigating position from the 1970s-style “pure collective rights” view of the Second Amendment. See, e.g., Pet. Br. at 19 (“The question is not whether individuals can enforce the right protected by the Second Amendment. The question instead is whether this right is limited to the possession of militia-related weapons.”); id. at 20 (“The District does not contend that individuals may not ‘keep’ their Arms, but that they may keep them only if they have a militia-related reason for doing so.”).

For several reasons — including the gravitational pull exerted on the Second Amendment by the obviously individual “rights of the People” referred to in the First, Fourth, Ninth and Tenth Amendments — the Supreme Court is likely to reject the pure collective-rights view.

That is itself significant. It would vindicate the view that the pure “collective rights” interpretation — endorsed by the Sixth and Ninth Circuits, and by a number of state supreme courts and commentators — was a blind alley. It will become a matter for reflection that respectable federal judges could once write like this about a constitutional provision that expressly recognizes a “right of the People to keep … Arms”:

Since the 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, there can be no serious claim to any express constitutional right of an individual to possess a firearm.

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

Things get more interesting when we pass to issue (2).

Is the individual right to arms conditional on the say-so of a government organization? There’s an odd brilliance to United States v. Miller, 307 U.S. 174 (1939). This brief, opaque opinion decided so little, yet has endured for 69 years as the Supreme Court’s last square pronouncement on the reach of the Second Amendment. Justice McReynolds accomplished his feat of judicial minimalism, in part, by strewing Miller with phrases and cites that give each side in the Second Amendment debate something to point to and something to worry about.

The worst passage in Miller for the District is the Supreme Court’s conclusion that the “militia” referred to in the Second Amendment’s prefatory clause was a popular militia: it historically included “all males physically capable of acting in concert for the common defense”; that its members were “civilians primarily, soldiers on occasion,” and — especially — that they were “expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U.S. at 179 (emphasis added).

That is hard to square with the District’s position that the Second Amendment “protects the possession and use of guns only in service of an organized militia.” Pet. Br. at 8 (emphasis added). In fact, the District’s brief declines to quote the actual language I’ve italicized from Miller above. It softens it by paraphrase as a requirement that militia members were to “obtain specified weaponry … and present [it] when directed.” Pet. Br. at 13.

“Keep.” The Amendment recognizes the right of the people not only to bear arms, but to keep them. “Keep” matters. Much of the Court of Appeals’s decision in Parker v. D.C. actually rests on the conclusion that the D.C. gun bans at issue violated Dick Heller’s right to keep arms. See Parker, 478 F.3d at 400 (“[T]he pistol is the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family. … [T]he Second Amendment’s premise is that guns would be kept by citizens for self-protection (and hunting).”); id. (stating that “the District may not flatly ban the keeping of a handgun in the home”).

Proponents of a narrow interpretation of the Second Amendment have traditionally had a hard time with “keep.” It’s sometimes argued that “bear arms” has a specifically military meaning, so “keep” should be read as similarly limited. See Pet. Br. at 9, 16-17. But as Judge Silberman noted in Parker, the right is drafted conjunctively, and the issue is what additional effect to assign to one half of the conjunction. The idea of a “right of the People” to “keep arms” is so easily susceptible of an ordinary-language interpretation — viz., Americans are entitled to possess guns in their homes — that it remains an uphill battle to show that this right is really conditioned on some government organization’s say-so.

Moving into field goal range. So put together the populist conception of the militia in Miller with the text’s recognition of a right of the people to keep arms, and add the gravitational pull on the interpretation of the Second Amendment from the individual “right[s] of the People” in the First, Fourth, and Ninth Amendments. What do you get?

I think Mr. Heller will prevail on issue (2) as well as (1). He’ll convince a majority of the Court that there is an individual constitutional right, good against the federal government, for private citizens, who are not currently affiliated with a formal state or local militia organization, to keep firearms in their homes.

This might be enough to convince the Supreme Court to affirm the Court of Appeals’s invalidation of D.C. Code § 7-2502.02(a)(4), the handgun ban. As Judge Silberman reasoned, at least some kinds of handguns are clearly weapons “in common use” that have a reasonable relationship to militia service. (Consider the Beretta pistol at issue in U.S. v. Emerson — a common commercial firearm, frequently carried by police and legally armed citizens in America, essentially an identical copy of the U.S. military’s standard issue handgun.) The federal government, Parker concluded, can regulate handguns, but it cannot ban a whole class of common firearms with evident militia utility.

However, if this argument is accepted, there would still remain D.C. Code §§ 7-2507.02 and 22-4504, which embody the District’s ban on “keeping” firearms so that they are functional for self-defense — the prohibition of carrying handguns in the home, and the requirement that all guns be kept both unloaded and locked or disassembled, at least until an emergency arises (by which time it may well be too late to use the gun to defend oneself). Even the ban on handguns might, at a stretch, be defended on the ground that allowing rifles and shotguns is sufficient to render District citizens an effective militia. At one point, the District defends its handgun ban in light of District residents’ remaining ability to “posses[s] … shotguns and rifles.” Pet. Br. at 54.

NOTE: “Some shotguns and rifles” would be more accurate. A different provision of D.C. law bans citizens from possessing any semi-automatic rifle or shotgun that holds 12 or more rounds, or, evidently, that can be fitted with a magazine that holds 12+ rounds. D.C. Code §§ 7-2501.01(10)(B), 7.2502.02(a)(2). Remarkably, D.C. law defines these thoroughly ordinary semi-automatic firearms as “machine guns.” Id. Since a semi-automatic gun is, by definition, not a fully automatic weapon like a machine gun, D.C.’s statute is hard to understand except as a reflection of legislative ignorance or deception — it’s like passing a statute that defines married men above 5’7” in height as “bachelors.” In any event, the Supreme Court can take judicial notice of these provisions of D.C.’s gun law. The “rifles and shotguns” response will have to be judged in light of the fact that D.C. actually bans virtually all semi-automatic rifles of militia value, too.

With a nod to this weekend, we can say that the recognition of an individual right to keep arms will put Heller in field-goal range, but not yet across the line for a touchdown.

The critical inference. Issue (3) still remains: for what purposes are individuals constitutionally entitled to keep arms? Heller must convince the Supreme Court to draw the critical inference: that the constitutionally protected interests encompassed by the Second Amendment individual right to keep arms include keeping them for personal self-defense. This is what makes D.C.’s gun law seem so draconian to most American gun owners; this is the interest that D.C.’s laws so dramatically infringe. And in this context, the District emphasizes what is the most potentially troubling passage in Miller for Mr. Heller: the Supreme Court’s statement that the operative clause of the Second Amendment (the right of the people to keep and bear arms) should be “interpreted and applied” with the militia purpose mentioned in its prefatory clause “in view.”

What I call “the critical inference” is what Nelson Lund has called the “one hard question” in Heller. The District devotes much of the lead section of its brief on opposing the critical inference. See generally Pet. Br. at 11-35; see id. at 8 (denying that Second Amendment “entitles individuals to have guns for their own private purposes.”); id. at 15 (“Nothing about … the [Second Amendment]’s opening clause … so much as hints that the Amendment is about protecting weapons for private purposes.”); id. at 20 (“Respondent seeks to own a handgun for self-defense in his home. If the Frames had intended the Amendment to protect that use … they would have omitted the opening clause entirely and used non-military language rather than ‘bear Arms.’ ”); id. at 35 (“The Amendment does not protect — and was never intended to protect — a right to own guns for purely private use.”).

Heller and his amici will likely offer a wide range of arguments in favor of the critical inference. This post is very long, so I’ll note just one here: the argument, from classical liberal theorists like Locke and legal commentators like Blackstone, that the right to arms for public self-defense against tyranny arises from the same source as the right to personal self-defense against criminal force. Each right implicates the other. In essence, Heller will argue that the “right to arms” recognized by the Second Amendment should be read broadly enough to include a cluster of overlapping and philosophically related rights to public and private self-defense.

In other words, Mr. Heller will ask the Supreme Court to bring to the Second Amendment a fraction of the interpretive breadth that it has bestowed on the other provisions of the Bill of Rights:

• The First Amendment’s Establishment Clause appears merely to bar Congress from interfering with state religious establishments. However, it has been interpreted to confer a (fully incorporated) individual constitutional right to be free from religious establishment, complete with a custom-tailored exception to the taxpayer standing doctrine to encourage Establishment Clause challenges to legislative action.

• The First Amendment’s Free Speech Clause protects the “freedom of speech, [and] of the press.” It has been interpreted to protect the private possession of works of obscene pornography and at least some forms of virtual child pornography.

• The Fourth Amendment simply states that search warrants shall be subject to requirements of probable cause and particularity. It has been interpreted to presumptively require a warrant for any search or seizure, unless a specific exception applies.

• The Fifth Amendment: Miranda. Enough said.

• The Sixth Amendment states that a criminal defendant has the right “to have the Assistance of Counsel for his defense.” It has been interpreted to confer a right, not merely to receive assistance from retained counsel, but to have counsel appointed by the government, free of charge, if a defendant cannot otherwise afford it.

• The Eighth Amendment prohibits cruel and unusual punishment. Although statutes imposing the death penalty for serious felonies were common at the time of the Framing, the Eighth Amendment has been interpreted to prohibit capital punishment for the rape of an adult woman (and probably for child rape).

Heller touches on a ton of issues not mentioned in this post: federalism, Fourteenth Amendment incorporation, the status of the District of Columbia, the Solicitor General’s amicus brief, and 2008 election politics among them. I hope to address at least some of these issues in future posts. I look forward to it.

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31 Responses

  1. Flash Gordon says:

    Justice Breyer will no doubt want to look to foreign law on the third prong and be influenced by the demise of the right of self defense in the UK and in Australia. He will no doubt find support from Ginsburg, Stevens and Souter. They could save time by dispensing with briefs and oral argument and just having Kennedy tell us what his decision is going to be.

  2. denton says:

    Great read! Hope Mike is right.

    Two quick comments:

    Presser makes it clear that the “militia related” notion of private firearms has nothing to do with private citizens providing firearms for the common defense. It has everything to do with providing people who are skilled in the use of firearms, and can therefore be quickly called to service.

    The phrase “well-regulated militia” just begs to be read “militia well-regulated by the government”. Interpolating those extra words is so obvious, and so wrong. I have extensively researched the meaning of the term “well-regulated” as it was used before 1900, with dozens of citations. Only one of those citations could possibly be read as involving the government. None of the others can. It obviously meant “properly functioning”, “orderly”, or “in its ideal state”. There are references to well regulated minds, well regulated gentlemen, well regulated women, well regulated hair, well regulated music, well regulated horses, and well regulated scientific instruments.

    Once you discard the wrong notion that well-regulated means carefully controlled by the government, then you no longer need to worry about which branch of the government does the regulating, and whether or not the militia is organized at all. The whole sophisticated collective right theory, and the odious Haney test simply crumble and disappear.

  3. Turk Turon says:

    What a wonderfully concise essay! Thank you!

  4. jdege says:

    Miller’s core finding:

    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.

    Aymette v. State’s key finding:

    As the object for which the right to keep and bear arms is secured, is of general and public nature, to be exercised by the people in a body, for their common defence, so the arms, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority. They need not, for such a purpose, the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin. These weapons would be useless in war. They could not be employed advantageously in the common defence of the citizens. The right to keep and bear them, is not, therefore, secured by the constitution.

    But this was based on the language of the State Constitution:

    In the first article of the Constitution of this State, containing a declaration of rights, sec. 26, it is declared, “That the free white men of this State, have a right to keep and bear arms for their common defence.”

    And that’s where Miller went wrong. Because not only does the RKBA in the US Constitutition not contain the restriction “for their common defence”, that express language was considered during the ratification debates over the 2nd amendment, and was explicitly rejected:

    Journal of the Senate of the United States of America, Volume 1: pp. 77

    On motion to amend article the fifth, by inserting these words, ‘for the common defence,’ next to the words ‘bear arms:’

    It passed in the negative.

    On motion strike out of this article, line the second, these words, ‘the best’, and insert in lieu thereof ‘necessary to the;’

    It passed in the affirmative.

    On motion, on article the fifth, to strike out the word ‘fifth,’ after ‘article the,’ and insert ‘fourth,’ and to amend the article to read as follows: ‘A well regulated milita being the security of a free state, the right of the people to keep and bear arms shall not be infringed.’

    It passed in the affirmative.

    So, arguments based on Humphries via Miller – that the RKBA provision of the federal constitution applies only to weapons of use in the “common defence” are unsupported.

  5. Carl Donath says:

    What is the state but the aggregation of individuals acting in concert to facilitate their safety and wealth?

    What is the milita but everyone reasonably able to prepare for and participate in common defense?

    What is individual self-defense but the defense of 1/300,000,000th of the nation?

    To divide self-defense from national-defense is to create a false dichotimy.

    To deny anyone the right to tools for self-defense is to aid and abet the enemies of this nation (foreign _and_ domestic), to render a fraction of the people impotent against those who wantonly cause harm, to reduce the protection of this country.

  6. Doesn’t the Second Amendment mandate the existence of the militia? If the militia is dead (as some DC amicus briefs argue), do we then not have a ‘free state’? Isn’t it necessary?

  7. James Gibson says:

    I’ll keep it short. Dc uses the 1794 Oxford dictionary to argue the word Arms has only a military reason. The definition “Those instruments of offense generally made use of in war.” According to my Webster’s dictionary I can replace Generally with “not excluding or exclusive to.” Thus the definition becomes “Those instruments of offense, not excluding or exclusive to, those made use of in war.” Now its not so specifically military in nature.

  8. PersonFromPorlock says:

    The simplest and most honest way of handling Miller would be for the Court to find that it was a mistake for the then Court to make any ruling where only one side of the case was presented.

    Don’t hold your breath.

  9. Sam Draper says:

    Is the third step really necessary? If the first two steps establish that it is an individual right and that no militia purpose is served, isn’t three a given? I don’t think it makes a difference what the purpose is as long as it is not militia service.

  10. jdege says:

    “the word Arms has only a military reason”

    The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents – December 12, 1787:

    “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”

    I think that makes it clear that the phrase “bear arms” was not used in an exclusively military context.

  11. Carl Donath says:


    The latest DC brief addresses equivalent wording thus:

    Article XIII of Pennsylvania’s 1776 declaration of rights is another example of the dominant focus of these provisions on communal defense: That the people have a right to bear arms for the defense of themselves and the state; and as standing armies in the time of peace are dan-gerous to liberty, they ought not to be kept up: And that the military should be kept under strict subordination to, and governed by, the civil power. … There is strong support for the proposition that Article XIII protects only a right to bear arms for communal (rather than personal) self-defense.

    Methinks SCOTUS will be unamused.

  12. J Richardson says:

    I think Justice Kennedy would do well to read John Ross’s novel “Unintended Consequences” and meditate on what an enraged populace might do if he votes in the negative on items 1, 2, & 3.

  13. John Blake says:

    Why not translate “militia” as a civil self-defense force composed of individual Minutemen per 1775 et seq.? Like “establishment of religion,” awkward phrasing renders the Second Amendment amenable to misinterpretation via pretended ambiguity, whereas Founders knew perfectly well that, a) Banning government subsidies does not prohibit free exercise of religion in private or in public contexts; and b) Rights to self-defense of life and property are absolute, by individuals or groups threatened as private citizens by criminal assault or by the State.

    Obfuscatory legalisms stink of Humpty Dumpty: Words mean only what courts say they do. (Think McCain/Feingold, wherein hundreds of convoluted pages interpret “no law” to mean “shut up, we explain.”) What Mr. Justice Kennedy eats for breakfast bears on repulsing violent attack? Let brilliant legal minds (BLMs) eat their own words.

  14. With respect to the question of whether “bear arms” has a specifically military meaning, see . Also, that paper includes a quote from James Wilson, member of the Philadelphia Convention, primary author of the 1790 Pennsylvania Constitution (which also had a guarantee a right to “bear arms for the defense of themselves and the state”), and Associate Justice of the U.S. Supreme Court. He is very explicit that it protected an individual right to self-defense.

  15. zippypinhead says:

    Professor O’Shea’s posting is very well-reasoned. I hope some of the pro-Heller amicii read it before they finalize their briefs. However, his three-step analysis does not end the inquiry. Even if the Court explicitly finds that a right to personal self-defense is included in the answer to his question 3, it would nevertheless still be possible for the Court to still hold that the right to keep and bear arms outside the militia context may be quite strictly regulated.

    In order to uphold a broad individual Second Amendment right to keep and bear arms, you really need a FOURTH step — that the right is sufficiently “fundamental” that a strict scrutiny analysis is required. If the “compelling interest,” “narrowly tailored” and “least restrictive alternative” requirements of strict scruiny were applied in an analysis of D.C.’s handgun ban, it would undoubtedly fall.

    If, on the other hand, the Court were to find that the lower “rational basis” standard of review applies to firearms regulations, it is quite possible that a lower court on remand would be able to find that D.C.’s handgun ban is permissible. Under a rational basis review, D.C.’s handgun ban arguably could be found to address an important governmental interest (deterring street crime with concealable weapons), and an able-bodied citizen like Heller could be deemed capable of adequately exercising his right to personal self-defense in the home with a long gun.

    Just a thought…

  16. PersonFromPorlock says:

    jdege: “The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents” also says, in item seven:

    That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil powers.

  17. Brad Mitchell says:

    I have just one simple thought, for others here have discussed this much better. IF the argument at hand is weather or not the 2nd amendment protects individual use of firearms not related to national security, and if the argument suggests that only those weapons which are in use by the military ought to be supported, then are they offering to replace my Remington with an M-14? I sure hope so!

  18. Troopship Berlin says:

    Properly understood, the Second Amendment forbids laws that infringe on the right to possess firearms. It does not say anything specific about what may be done with firearms beyond “keeping” or possessing them, and “bearing” or carrying them.

    Presumably, a “well-regulated” militia is one that is prohibited from using firearms to commit crimes. DC Code Section 7-2502.13(a) recognizes a limited right to “possess and use a self-defense spray in the exercise of reasonable force in defense of the person or the person’s property.” Would the Second Amendment prohibit DC from passing a law forbidding the use of firearms for self-defense? That’s a question for another day.

    I think you may be reading too much into the Court’s certiorari grant. I don’t think the court needs to or can decide in Heller how firearms may be used (i.e., the “private purposes” for which they may be kept), because the statutes prohibit mere possession.

  19. Sam Draper says:


    Regarding what level of scrutiny to apply, I was thinking last night that two different standards of review could be applied for the rights to “keep” and “bear” arms? The District and its allies argue for a “collective right” by focusing on the militia in prefatory clause and the military connotation of the term “bear arms,” while Heller emphasizes the plain language of the operative clause and uses “bear” as a synonym for “carry.” The DOJ tries to split the difference, by recognizing an individual right but applying such a low level of scrutiny that the right could be regulated into extinction.

    Perhaps strict scrutiny could be applied to the right to “keep” arms. Those not under disability would be able to keep any “arms” (“part of the ordinary military equipment” – rifles, carbines, pistols & shotguns, per Miller and the court of appeals decision in Heller) they please, in any condition they desire, in their home. This would be consistent with not only the wording of the second amendment, but with the general respect in our society and legal system for a person to do what he pleases in his own home without state interference (e.g. the 3rd and 4th amendment, the penumbra’s right of privacy, Kyllo, etc.). This also comports with common sense, since I can have all the illegal guns I want in my basement and the government will never know about it until the firearms leave my house or I give them a reason to search my home. The government’s archaic interest in having an armed body of citizens enrolled for military discipline, bearing arms supplied by themselves (as described in Miller), is thus protected, as is the ability of the people to overthrow a tyrannical government or resist a military coup.

    A lower standard of review, allowing reasonable regulations, could be applied to the right to “bear” arms. Justifying this lower standard would be the military service implications in the word “bear,” the fact that the “firm but also bright” line at the “entrance to the house” has been crossed (from Kyllo), and the fact that once the guns leave the home they will obviously have a greater impact on other people. The carrying of bowie knives could therefore be prohibited, concealed or open carry could be regulated, the local “patriot” militia could not drill in the streets of Chicago, and brandishing could be made illegal. I don’t know exactly what level of scrutiny would be appropriate, but the beauty of this approach is that the court does not have to make that decision. Heller is really only about the right of individuals to “keep” arms (and in what condition they can be kept). Like the incorporation of the 2nd amendment into the 14th amendment, the right to “bear” arms could be left to another case and day.

    From my viewpoint, I think there is no more point to regulating the bearing of arms than the keeping of them, as it is perfectly legal here to openly carry a machinegun around town and nobody does it. People just have too much sense. But perhaps people have less sense in other places. Almost all of the regulation of “bearing” is done by the states and I trust the good people of my state to be reasonable in that regard; it is the federal control of “keeping” that makes me uneasy.

  20. Lunatic says:

    Of course, there’s the Ninth Amendment argument. (Yeah, yeah, “inkblot”, Mr. Bork.)

    That is, if we find a right to bear arms for individual defense in Blackstone, and in Locke, and in the 1689 (English) Bill of Rights, then we must fairly conclude that it is a right of the people, as understood by the Framers, unless we have specific positive evidence to the contrary. If said right is not included in the Second Amendment, that doesn’t matter; the Ninth exists to preserve any rights omitted from enumeration.

    Accordingly, we can ignore the entire Second Amendment and still find individuals have a right to “have arms for their defence suitable to their conditions”.

  21. Joaquin Softly says:

    Sam Draper makes an excellent point about differing standards for “keeping” vs “bearing” of arms. The Constitution of the State of Georgia takes this very direct approach. It works rather well.

    “Paragraph VIII. Arms, right to keep and bear. The right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne.”

  22. John C says:

    Please explore DC’s argument that it is a federal enclave, so any 2A protections don’t apply. That argument seems to drag the states into the same boat (keeping their skirts clean in their bid for statehood?) and concludes that any 2A protections really don’t apply to DC.

  23. Steve says:

    What happened to “shall not be infringed”?

  24. RG says:

    “What happened to “shall not be infringed”?” indeed. That there is even an argument is scarry. Literally millions of our fellow citizens are willing to surrender their rights. That there could be five judges on the Supreme Court who would agree with the gun grabbers is merely a reflection of our condition. The Three Steps in D.C. v. Heller by Mike O’Shea is great, but how do we stop the rot? Can we?

    I do worry. The too are the Times That Try Mens’ Souls. Good time to stock up onm ammo and magazines too.

  25. RG says:

    “What happened to “shall not be infringed”?” indeed. That there is even an argument is scarry. Literally millions of our fellow citizens are willing to surrender their rights. That there could be five judges on the Supreme Court who would agree with the gun grabbers is merely a reflection of our condition. The Three Steps in D.C. v. Heller by Mike O’Shea is great, but how do we stop the rot? Can we?

    I do worry. The too are the Times That Try Mens’ Souls. Good time to stock up onm ammo and magazines too.

  26. RG says:

    “What happened to “shall not be infringed”?” indeed. That there is even an argument is scarry. Literally millions of our fellow citizens are willing to surrender their rights. That there could be five judges on the Supreme Court who would agree with the gun grabbers is merely a reflection of our condition. The Three Steps in D.C. v. Heller by Mike O’Shea is great, but how do we stop the rot? Can we?

    I do worry. The too are the Times That Try Mens’ Souls. Good time to stock up onm ammo and magazines too.

  27. rumplesnitz says:

    I thought the whole purpose of the Bill of Rights was to secure individual rights by limiting the power of the Federal Government. “A well regulated militia being necessary to the security of a free state,” simply means “Uh, y’know – it’s kind of important to keep a population that is proficient with firearms…” “…the right of the people to keep and bear arms shall not be infringed.” “Keep” means “own”; “bear” means “carry around”. Only cowards and elitist snobs who want to keep the people down, could have a problem with that.

    Of course, like any right, there must be limits. Fully automatic weapons, hand-grenades, Battle ships, fighter aircraft, and biological, chemical, and nuclear weapons cannot be allowed to proliferate. I personally like the idea that one of the basic ideas of the Second Amendment is to ensure the people have the right to weapons of coercive force in order to resist an oppressive government – but I don’t think that idea is actually represented by language in the Constitution or the Bill of Rights. In fact, the Constitution does affirm that the people have the right to peacefully dissolve the Constitution, so I think that speaks loads to that concept.

    Simply stated, the Bill of Rights says the Federal Government has no right to prevent the public from owning and carrying around Bowie knives, swords, clubs, mace, pepper spray, stun guns, tazers, handguns, shotguns, and rifles. Common sense dictates that extraordinarily powerful or hazardous weapons could and should be restricted. It doesn’t prevent the individual states from doing so, nor does it relieve any person from responsibility for his/her actions.

  28. David M. Bennett says:

    In drafting the Second Amendment, did the Founding Fathers really intend that the last (read final) line of defense of the People’s Liberty be entrusted solely to the State governments and not the People themselves?

  29. paul vallandigham says:

    And then there is that really pesky amendment, No. 10 to consider. The Court has done an abyssmal job if defining what ” rights ” are reserved to the People, even when they have carved out a ” Right of Privacy ” from other Amendments. Certainly the right of Self Defense-to Life itself- and implicitly, the right to keep and bear the tools to do so, does not rest solely on the protection of the Second Amendment.

  30. Jeff Richards says:

    Were the citizens that formed armed neighborhood patrols in New Orleans after Katrina (and subsequent anarchy) not militia? I believe they embodied the very definition, which the Framers sought to protect through the Second Amendment. Given the unconstitutional, and utterly immoral oppression in the form of home invasions, confiscation and destruction of legally owned firearms, and forced evacuations carried out by “authorities” there, this decision cannot come soon enough. The threat of a tyrannical government is far from a remote concept, even in America.

  31. Gary says:

    There is no other conclusion the Court can make other than 2A supports an individual right.