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The Three Steps in D.C. v. Heller

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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:

    jdege:

    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 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1081201 . 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:

    zippypinhead:

    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.