No. 07-290
`
`In the Supreme Court of
`the United States
`
`
`DISTRICT OF COLUMBIA, ET AL.,
`
`v.
`
`DICK ANTHONY HELLER,
`
`
`
`Petitioners
`
`Respondent
`
`ON WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`BRIEF FOR AMICI CURIAE 55 MEMBERS OF
`UNITED STATES SENATE, THE PRESIDENT OF THE
`UNITED STATES SENATE, AND 250 MEMBERS OF
`UNITED STATES HOUSE OF REPRESENTATIVES
`IN SUPPORT OF RESPONDENT
`
`
`STEPHEN P. HALBROOK*
`10560 Main Street, Suite 404
`Fairfax, VA 22030
`(703) 352-7276
`Counsel for Amici Curiae
`*Counsel of Record
`
`
`
`In the Supreme Court of
`the United States
`
`
`DISTRICT OF COLUMBIA, ET AL.,
`
`v.
`
`DICK ANTHONY HELLER,
`
`
`
`Petitioners
`
`Respondent
`
`ON WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`BRIEF FOR AMICI CURIAE 55 MEMBERS OF
`UNITED STATES SENATE, THE PRESIDENT OF THE
`UNITED STATES SENATE, AND 250 MEMBERS OF
`UNITED STATES HOUSE OF REPRESENTATIVES
`IN SUPPORT OF RESPONDENT
`
`
`STEPHEN P. HALBROOK*
`10560 Main Street, Suite 404
`Fairfax, VA 22030
`(703) 352-7276
`Counsel for Amici Curiae
`*Counsel of Record
`
`
`
`QUESTION PRESENTED
`
`Whether the following provisions — D.C. Code
`secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 —
`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?
`
`i
`
`
`
`ii
`
`TABLE OF CONTENTS
`
`Page
`
`QUESTION PRESENTED . . . . . . . . . . . . . . . . . . .
`
`i
`
`TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . .
`
`iv
`
`STATEMENT OF INTEREST OF
`AMICI CURIAE
`. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
`
`SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . 2
`
`ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
`
`I.
`
`ORIGINAL INTENT AND EARLY
`INTERPRETATION . . . . . . . . . . . . . . . . . . . 5
`
`A.
`
`The Text: Rights of the People vs.
`State Powers . . . . . . . . . . . . . . . . . . . . 5
`
`B.
`
`C.
`
`Drafting the Amendment in 1789 . . . 9
`
`The Freedmen’s Bureau Act of 1866 13
`
`II.
`
`CONTINUATION OF A CONSISTENT
`READING . . . . . . . . . . . . . . . . . . . . . . . . . . 19
`
`A.
`
`Regulation in the District
`of Columbia . . . . . . . . . . . . . . . . . . . . 19
`
`B.
`
`The Property Requisition
`
`
`
`iii
`
`Act of 1941 . . . . . . . . . . . . . . . . . . . . 22
`
`C.
`
`The Firearms Owners’ Protection Act
`of 1986 . . . . . . . . . . . . . . . . . . . . . . . . 26
`
`III.
`
`LEGISLATION IN THE 21 CENTURY
`ST
`
`.
`
`28
`
`A.
`
`B.
`
`C.
`
`Protection of Lawful Commerce in
`Arms Act . . . . . . . . . . . . . . . . . . . . . . 28
`
`Disaster Relief & Emergency Assistance
`Act Amendment . . . . . . . . . . . . . . . . 31
`
`The D.C. Personal Protection
`Act Bill
`. . . . . . . . . . . . . . . . . . . . . . . 34
`
`IV.
`
`A HANDGUN BAN IS UNREASONABLE
`ON ITS FACE, RENDERING A REMAND
`FOR FURTHER PROCEEDINGS
`UNNECESSARY . . . . . . . . . . . . . . . . . . . . . 35
`
`CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
`
`APPENDIX: THOSE JOINING IN
`AMICI CURIAE BRIEF . . . . . . . . . . . . . . . . . . . . 1a
`
`
`
`iv
`
`TABLE OF AUTHORITIES
`
`CASES
`
`Page
`
`Nixon v. Administrator of General Services,
` 433 U.S. 425 (1977)
`. . . . . . . . . . . . . . . . . . . . . . . . 2
`
`Parker v. District of Columbia, 478 F.3d 370
` (D.C. Cir. 2007)
`. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
`
`San Antonio Independent School District v.
` Rodriguez, 411 U.S. 1 (1973) . . . . . . . . . . . . . . . . 36
`
`CONSTITUTIONS
`
`U.S. Const., Art. I, § 8
`
`. . . . . . . . . . . . . . . . . . . . . . 7
`
`U.S. Const., Art. I, § 8, cl. 16
`
`. . . . . . . . . . . . . . . .
`
` 8
`
`U.S. Const., Amendment I
`
`. . . . . . . . . . . . . . . . . 6, 7
`
`U.S. Const., Amendment II
`
`. . . . . . . . . . . . . passim
`
`U.S. Const., Amendment IV . . . . . . . . . . . . . . . . . . 6
`
`U.S. Const., Amendment V
`
`. . . . . . . . . . . . . . . . . . 7
`
`U.S. Const., Amendment VI . . . . . . . . . . . . . . . . . . 6
`
`U.S. Const., Amendment VII
`
`. . . . . . . . . . . . . . . . . 6
`
`
`
`v
`
`U.S. Const., Amendment IX . . . . . . . . . . . . . . . . . . 6
`
`U.S. Const., Amendment X
`
`. . . . . . . . . . . . . . . . .
`
` 7
`
`U.S. Const., Amendment XIII
`
`. . . . . . . . . . . . . . . 13
`
`U.S. Const., Amendment XIV . . . . . . . . . . . . . 15-19
`
`STATUTES AND ORDINANCES
`
`Civil Rights Act, 14 Stat. 27 (1866)
`
`. . . . . 13, 16, 19
`
`Department of Homeland Security
` Appropriations Act, 2007, P.L. 109-295,
` 120 Stat. 1355 (2006) . . . . . . . . . . . . . . . . . . . 31, 33
`
`Firearms Owners’ Protection Act, P.L. 99-308,
` 100 Stat. 449 (1986) . . . . . . . . . . . . . . . . . . . 4, 26-28
`
`Freedmen’s Bureau Act, 14 Stat. 173
` (1866) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 13, 18
`
`Gun Control Act, P.L. 90-618, 82 Stat. 1213
` (1968)
`. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 26, 35
`
`Property Requisition Act, P.L. 274,
` 55 Stat. 742 (1941)
`. . . . . . . . . . . . . . . . . . 3, 22-25
`
`Protection of Lawful Commerce in Arms Act,
` P.L. 109-92, 119 Stat. 2095 (2005)
`. . . . . . 4, 28-31
`
`
`
`vi
`
`Robert T. Stafford Disaster Relief and Emergency
` Assistance Act, in Department of Homeland
` Security Appropriations Act, 2007, Title IV, § 557,
` P.L. 109-295, 120 Stat 1355 (2006)
`. . . . . . 4, 31-34
`
`18 U.S.C. § 922(g) . . . . . . . . . . . . . . . . . . . . . . . . . 36
`
`18 U.S.C. § 922(o) . . . . . . . . . . . . . . . . . . . . . . . . . 36
`
`18 U.S.C. § 922(p) . . . . . . . . . . . . . . . . . . . . . . . . . 36
`
`18 U.S.C. § 922(t)
`
`. . . . . . . . . . . . . . . . . . . . . . . . . 36
`
`18 U.S.C. § 923 . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
`
`18 U.S.C. § 926A . . . . . . . . . . . . . . . . . . . . . . . . . . 28
`
`42 U.S.C. § 1981
`
`. . . . . . . . . . . . . . . . . . . . . . . . . . 16
`
`42 U.S.C. § 5207
`
`. . . . . . . . . . . . . . . . . . . . . . . 31, 32
`
`27 Stat. 116 (1892)
`
`. . . . . . . . . . . . . . . . . . . . . . . . 19
`
`31 Stat. 1328 (1901)
`
`. . . . . . . . . . . . . . . . . . . . . . . 19
`
`34 Stat. 808 (1906)
`
`. . . . . . . . . . . . . . . . . . . . . . . . 20
`
`47 Stat. 650 (1932)
`
`. . . . . . . . . . . . . . . . . . . . . . . . 20
`
`57 Stat. 586 (1943)
`
`. . . . . . . . . . . . . . . . . . . . . . . . 21
`
`
`
`vii
`
`67 Stat. 93 (1953)
`
`. . . . . . . . . . . . . . . . . . . . . . . . . 21
`
`D.C. Code § 1-303.43
`
`. . . . . . . . . . . . . . . . . . . . . . 20
`
`D.C. Code, Chapter 45
`
`. . . . . . . . . . . . . . . . . . . . . 21
`
`LEGISLATIVE MATERIALS
`
`Cong. Globe . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-18
`
`Cong. Rec. . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
`
`District of Columbia Personal Protection Act
` Bills, H.R. 5013 (2004), S. 1001,
` H.R. 1399 (2007)
`. . . . . . . . . . . . . . . . . . . . 4, 34-35
`
`Freedmen’s Bureau Bill, H.R. 613 (1866) . . . . . . . 16
`
`House Report 767, 72d Cong., 1st Sess. (1932)
`
`.
`
` 21
`
`Disaster Recovery Personal Protection Act Bill,
` H.R. 5013 (2006) . . . . . . . . . . . . . . . . . . . . . . . . .
`
` 32
`
`Rpt. No. 1120 [to accompany S. 1579], House
` Committee on Military Affairs, 77th Cong.,
` 1st Sess. (Aug. 4, 1941)
`. . . . . . . . . . . . . . . . . . . . 23
`
`Rpt. No. 1214, Conference Report [to accompany
` S. 1579], 77th Cong., 1st Sess. (Sept. 25, 1941)
`
`. 25
`
`
`
`viii
`
`The Right to Keep and Bear Arms: Report of the
` Subcommittee on the Constitution, Senate
` Judiciary Committee, 97th Cong., 2d Sess. (1982) 27
`
`Senate Report 575, 72d Cong., 1st Sess. (1932) .
`
` 21
`
`OTHER AUTHORITIES
`
`A. Amar, The Bill of Rights & the Fourteenth
` Amendment, 101 YALE L.J. 1193 (Apr. 1992)
`
`. .
`
` 13
`
`D. Caplan, Restoring the Balance: The Second
` Amendment Revisited, 5 FORDHAM URBAN
` L.J. 31 (1976), reprinted in 131 CONG. REC.
` S8692 (June 24, 1985)
`. . . . . . . . . . . . . . . . . . . . . 27
`
`CREATING THE BILL OF RIGHTS (1991) . . . . . . . . . . 12
`
`DOCUMENTARY HISTORY OF THE FIRST FEDERAL
` CONGRESS (1986-1995) . . . . . . . . . . . . . . . . . . . 9-11
`
`DOCUMENTARY HISTORY OF THE RATIFICATION
` OF THE CONSTITUTION (1976, 2000)
`. . . . . . . . 11, 12
`
`FEDERAL GAZETTE, June 18, 1789
`
`. . . . . . . . . . . . 10
`
`S. Halbrook, Congress Interprets the Second
` Amendment: Declarations by a Co-Equal Branch
` on the Individual Right to Keep and Bear Arms,
` 62 TENNESSEE LAW REVIEW 597 (Spring 1995).
`
`. 22
`
`
`
`ix
`
`
`S. Halbrook, FREEDMEN, THE FOURTEENTH
` AMENDMENT, & THE RIGHT TO BEAR ARMS,
` 1866-1876 (1998)
`. . . . . . . . . . . . . . . . . . . . . . 13-14
`
`S. Halbrook, Second-Class Citizenship and the
` Second Amendment in the District of Columbia,
` 5 GEORGE MASON UNIVERSITY CIVIL RIGHTS
` LAW JOURNAL, Nos. 1 & 2, 105 (1995).
`. . . . . . . . 19
`
`S. Halbrook, To Keep and Bear Their Private Arms:
` The Adoption of the Second Amendment, 1787-1791,
` 10 N.Ky.L.Rev. 13 (1982), reprinted in 131 Cong. Rec.
` S9105 (July 9, 1985)
`. . . . . . . . . . . . . . . . . . . . . . 27
`
`James C. Hutson, The Bill of Rights: The Roger
` Sherman Draft, in THIS CONSTITUTION (1988)
`
`. . 10
`
`JOURNAL OF THE FIRST SESSION OF THE SENATE
` (1820)
`. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13
`
`PAPERS OF JAMES MADISON (1973, 1979) . . . 7, 9, 10
`
`WILLIAM BLACKSTONE, COMMENTARIES
`
`. . . . . . . . . 7
`
`
`
`1
`
`STATEMENT OF INTEREST
`OF AMICI CURIAE
`
`The Amici Curiae include Senator Kay Bailey
`Hutchison, the lead member, and 54 other members of
`the United States Senate; the President of the United
`States Senate; and 250 members of the United States
`House of Representatives. See Appendix herein. As
`Federal officials, we have a fundamental interest in
`protecting the constitutional rights of our constituents
`and the American people in general.1
`The Congress has a long history of protecting
`the right of the people to keep and bear arms. Like
`the rest of the Bill of Rights, the Second Amendment
`was proposed to the States by the Congress in 1789.
`On several occasions, in different epochs of American
`history, the Congress enacted statutory texts which
`explicitly declared its understanding of the Second
`Amendment as guaranteeing fundamental, individual
`rights.
`Congress interprets the Constitution in deciding
`what laws to pass. As on other issues, this has
`historically been the case regarding the Second
`Amendment and the District of Columbia. “In the
`
`1
`
`No counsel for any party to this case authored this brief
`in whole or in part, no such counsel or a party made a monetary
`contribution intended to fund the preparation or submission of
`the brief, and no person or entity other than the Amici Curiae or
`their counsel made such a monetary contribution. This brief is
`filed with the written consent of all parties, seven-days notice
`having been provided to them of this filing.
`
`
`
`2
`
`performance of assigned constitutional duties each
`branch of the Government must initially interpret the
`Constitution, and the interpretation of its powers by
`any branch is due great respect from the others.”
`Nixon v. Administrator of General Services, 433 U.S.
`425, 703 (1977).
`The Amici Curiae wish to bring their unique
`perspective to this Court’s attention to explain to the
`Court
`the historical meaning of
`the Second
`Amendment as understood by the Congress, and why
`the District’s firearms prohibitions at issue infringe on
`the rights of the law-abiding citizens of the District of
`Columbia as guaranteed by the Second Amendment.
`
`SUMMARY OF ARGUMENT
`
`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.” Congress adopted that
`wording and proposed it to the States in 1789. It
`became part of the Bill of Rights which the States
`ratified in 1791. As the text and the drafting history
`demonstrate, the Amendment was intended to
`guarantee the right of individuals to possess and keep
`ordinary firearms.
`Following the abolition of slavery, Congress
`sought to end the incidents of slavery, including
`prohibitions on possession of firearms by African
`Americans. In 1866, over two-thirds of Congress
`passed the Freedmen’s Bureau Act, which declared
`
`
`
`3
`
`protection for the “full and equal benefit of all laws
`and proceedings concerning personal liberty, personal
`security, and . . . estate . . ., including the
`constitutional right to bear arms . . . .”
`In passing firearms regulations for the District,
`Congress has been sensitive to Second Amendment
`concerns. An 1892 enactment prohibiting the carrying
`of concealed weapons exempted one’s place of business
`and dwelling house. In 1906, Congress empowered the
`District to pass “such usual and reasonable police
`regulations” deemed necessary to regulate firearms,
`which today remains the District’s only delegation to
`regulate firearms. A ban on handguns is both unusual
`and unreasonable. In 1932 Congress passed a
`comprehensive firearms act which remains largely in
`place. As the Senate report for that act stated, “the
`right of an individual to possess a pistol in his home or
`on land belonging to him would not be disturbed by
`the bill.”
`In 1941, Congress enacted the Property
`Requisition Act, which authorized the President to
`requisition certain types of property. The Act declared
`that it must not be construed “to authorize the
`requisitioning or require the registration of any
`firearms possessed by any individual for his personal
`protection or sport” unless prohibited or already
`required to be registered, or “to impair or infringe in
`any manner the right of any individual to keep and
`bear arms . . . .”
`The Gun Control Act of 1968 declared that “this
`title is not intended to discourage or eliminate the
`
`
`
`4
`
`private ownership or use of firearms by law-abiding
`citizens for lawful purposes.” And in the Firearms
`Owners’ Protection Act of 1986, over two-thirds of
`Congress found that the rights of citizens “to keep and
`bear arms under the second amendment to the United
`States Constitution” as well as other constitutional
`rights “require additional legislation to correct existing
`firearms statutes and enforcement policies.”
`Attempts to ban handguns through litigation led
`Congress to enact the Protection of Lawful Commerce
`in Arms Act in 2005. Approximately two-thirds of
`Congress found that the Second Amendment “protects
`the rights of individuals, including those who are not
`members of a militia or engaged in military service or
`training, to keep and bear arms.” The Act precludes
`lawsuits against the lawful industry “to preserve a
`citizen’s access to a supply of
`firearms and
`ammunition for all lawful purposes . . . .”
`Confiscations of firearms in the wake of
`Hurricane Katrina led Congress in 2006 to amend the
`Robert T. Stafford Disaster Relief and Emergency
`Assistance Act to forbid seizures of lawful firearms in
`disasters. Over two-thirds of the House enacted
`Findings that the seizures violated citizens’ Second
`Amendment rights to have firearms for protection in
`the home and elsewhere. The Findings were deleted
`when the bill was added to an appropriations bill in
`the Senate, but its underlying basis in the Second
`Amendment remained understood.
`The “District of Columbia Personal Protection
`Act,” a bill which passed the House in 2004 and is
`
`
`
`5
`
`includes the Finding that:
`currently pending,
`“Legislation is required to correct the District of
`Columbia’s law in order to restore the fundamental
`rights of its citizens under the Second Amendment . .
`. .”
`
`In sum, historically Congress has interpreted
`the Second Amendment as recognizing the right of
`law-abiding individuals to keep and bear arms. This
`Court should give due deference to the repeated
`findings over different historical epochs by Congress,
`a co-equal branch of government, that the Amendment
`guarantees the personal right to possess firearms.
`The District’s prohibitions on mere possession
`by law-abiding persons of handguns in the home and
`having usable firearms there are unreasonable per se.
`No purpose would be served by remanding this case
`for further fact finding or other proceedings. This
`Court should affirm the decision below, Parker v.
`District of Columbia, 478 F.3d 370 (D.C. Cir. 2007).
`
`ARGUMENT
`
`I. ORIGINAL INTENT AND EARLY
`INTERPRETATION
`
`
`
`A. The Text: Rights of the People
`vs. State Powers
`
`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
`
`
`
`6
`
`arms, shall not be infringed.” This declares a political
`principle and then guarantees a substantive right.
`The term “the people” is in juxtaposition to the
`government, federal or State. Only individuals have
`“rights,” while the United States and the States have
`“powers.”
`The phrase “the right of the people” also appears
`in the First Amendment – “Congress shall make no
`law . . . abridging . . . the right of the people peaceably
`to assemble, and to petition the government for a
`redress of grievances.” The Fourth Amendment
`guarantees: “The right of the people to be secure in
`their persons, houses, papers, and effects, against
`unreasonable searches and seizures, shall not be
`violated . . . .”
`the same
`The Ninth Amendment uses
`phraseology: “The enumeration in the Constitution, of
`certain rights, shall not be construed to deny or
`2
`disparage others retained by the people.” These
`guarantees protect individuals from government
`action, and do not delegate or reserve powers to
`governmental bodies.3
`
`2
`See also U.S. Const., Amend. VI (“the accused shall enjoy
`the right to a speedy and public trial”); Amend. VII (“the right of
`trial by jury shall be preserved”).
`
`3
`
`It violates ordinary word usage to say that “the people”
`means only such persons as the government selects, and that one
`has a “right” to do something only if commanded by the
`government. Yet these are the premises of the “collective rights”
`view.
`
`
`
`7
`
`The constitutional text distinguishes between
`“the people,” “the militia,” and the “States.” The
`Second Amendment refers to “a well regulated
`militia,” but the right to keep and bear arms is
`guaranteed to “the people.” The Fifth Amendment
`requires indictment by a grand jury except “in the
`Militia, when in actual service in time of War or public
`danger,” a class that contrasts with “the people” who
`may bear arms under the Second Amendment. The
`Tenth Amendment refers to powers “reserved to the
`states respectively, or to the people.”
`The Second Amendment refers to the right to
`“keep” arms (such as at home) as well as to “bear”
`arms (meaning to carry them). Protected arms include
`commonly-kept firearms that one can keep and carry
`for lawful purposes, such as ordinary rifles, handguns,
`and shotguns, and not crew-served or heavy weapons.
`The Amendment declares a well regulated
`militia to be necessary to the security of a “free State,”
`which means a free country, and is not restricted to a
`State government.4
`Article I, § 8, declares the “powers” of Congress,
`including its sharing of power over the militia with the
`
`4
`The First Amendment too has “free State” aims. “The
`liberty of the press is indeed essential to the nature of a free state
`.
`.
`.
`.” 4 WILLIAM BLACKSTONE, COMMENTARIES *151-152.
`“Faithful members of a free State” signed the Memorial and
`Remonstrance Against Religious Assessments. 8 PAPERS OF
`JAMES MADISON 298-99 (1973).
`
`
`
`8
`
`5
`the Tenth Amendment declares
`States, and
`undelegated “powers” to be reserved to the States or to
`the people. No “rights” are delegated to the United
`States or reserved to the States. Only “the people” –
`individuals – have “rights.”
`Where a State power is reserved or restricted,
`the Constitution names the State as the subject entity.
`It does not name the people the State may employ or
`conscript as the subject entity, other than in
`describing the State power. For instance, Congress
`has power to provide for organizing the militia,
`“reserving to the States respectively, the Appointment
`of the Officers . . . .” U.S. Const., Art. I, § 8, cl. 16. It
`is not declared that “the right of the Officers of the
`militia to be appointed by the States shall not be
`infringed.” Similarly, the Second Amendment does
`not declare that “the right of the persons in the militia
`to be armed as required by the States shall not be
`infringed.” Instead, it recognizes that “the right of the
`people to keep and bear arms, shall not be infringed.”6
`
`5
`U.S. Const., Article I, § 8, clause 16 provides that
`“Congress shall have power”:
`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 . . . .
`
`6
`
`The lone militiaman compelled by law to render service
`would have little or no incentive or means to take political or
`
`
`
`9
`
`In sum, the Second Amendment guarantees an
`individual right to keep and bear arms. Recognition of
`that right promotes the well regulated militia
`necessary for a free State’s security.
`
`B. Drafting the Amendment in 1789
`
`On June 8, 1789, Rep. James Madison
`introduced what would become the Bill of Rights in the
`House of Representatives, stating that it would
`“expressly declare the great rights of mankind secured
`7
`under this constitution.” In a draft of his speech,
`Madison referred to the rights of “freedom of press –
`8
`Conscience . . . arms” as “private rights.” His draft of
`the arms guarantee stated: “The right of the people to
`keep and bear arms shall not be infringed; a well
`armed, and well regulated militia being the best
`security of a free country: but no person religiously
`
`legal action to protect any such State power. If the States are the
`beneficiaries of constitutional protection, they would have the
`incentive and the means to guard their prerogatives. When
`analyzed closely, the “collective rights” reading of the Second
`Amendment is simply implausible.
`
`7
`11 DOCUMENTARY H IS TORY OF THE FIRST FEDERAL
`CONGRESS 820 (1992).
`
`8
`
`12 PAPERS OF JAMES MADISON 193-94 (1979).
`
`
`
`10
`
`scrupulous of bearing arms shall be compelled to
`render military service in person.” 9
`Ten days
`later, Federalist Tench Coxe
`explained: “As civil rulers, not having their duty to the
`people duly before them, may attempt to tyrannize,
`and as the military forces which must be occasionally
`raised to defend our country, might pervert their
`power to the injury of their fellow-citizens, the people
`are confirmed by the next article in their right to keep
`10
`and bear their private arms.” Madison endorsed
`Coxe’s analysis.11
`Madison’s draft was referred to a House Select
`Committee. Roger Sherman, a committee member,
`drafted his own amendments, including that “The
`militia shall be under the government of the laws of
`the respective states, when not in the actual service of
`12
`the United States . . . .” The Committee reported a
`
`9
`
`4 DOCUMENTARY HISTORY OF THE FIRST FEDER AL
`CONGRESS 10 (1986).
`
`10
`
`11
`
`FEDERAL GAZETTE, June 18, 1789, at 2, col. 1.
`
`12 PAPERS OF JAMES MADISON 239-40, 257 (1978).
`
`12
`18 James C. Hutson, The Bill of Rights: The Roger
`Sherman Draft, in THIS CONSTITUTION 36 (1988). Even so, in
`debate on the militia bill the following year, Sherman “conceived
`it to be the privilege of every citizen, and one of his most essential
`rights, to bear arms, and to resist every attack upon his liberty
`or property, by whomsoever made. The particular states, like
`private citizens, have a right to be armed . . . .” 14 DOCUMENTARY
`HISTORY OF THE FIRST FEDERAL CONGRESS 92-3 (1995).
`
`
`
`11
`
`revised version of Madison’s draft: “A well regulated
`militia, composed of the body of the people, being the
`best security of a free State, the right of the people to
`keep and bear arms shall not be infringed; but no
`person religiously scrupulous shall be compelled to
`bear arms.”13
`While “a free country” was changed to “a free
`state,” the adjective “free” was retained, thus
`differentiating other textual uses of “State” to denote
`the State governments.
`In House debate, disagreement was expressed
`14
`to the wording of the militia declaration.
` The final
`clause was amended to provide that the religiously
`scrupulous would not be compelled to bear arms “in
`15
`person.” No objection was expressed to the phrase
`
`13
`
`4 DOCUMENTARY HISTORY OF THE FIRST FEDER AL
`CONGRESS 28
`(1986).
` One writer saw
`the Committee
`amendments as reflecting the proposals by Samuel Adams in the
`Massachusetts ratification convention, which included “that the
`said constitution be never construed to authorize Congress . . . to
`prevent the people of the United States who are peaceable
`citizens, from keeping their own arms . . . .” 6 DOCUMENTARY
`HISTORY OF THE RATIFICATION OF THE CONS TITUTION 1453 (2000).
`
`14
`
`Elbridge Gerry argued: “A well regulated militia being
`the best security of a free state, admitted an idea that a standing
`army was a secondary one.” 11 DOCUMENTARY HISTORY OF THE
`FIRST FEDERAL CONGRESS 1287-88 (1992).
`
`15
`
`Id. at 1309. See also id. at 1285-86.
`
`
`
`12
`
`“the right of the people to keep and bear arms.”16
`The Senate revised the House language to
`render the militia clause more concise and delete the
`objector clause: “A well regulated militia, being the
`best security of a free state, the right of the people to
`17
`keep and bear arms, shall not be infringed.” The
`Senate rejected a proposal to add “for the common
`18
`defence” after “bear arms,” making clear that the
`right was not limited to that purpose. The Senate
`changed “the best security of a free state” to
`19
`“necessary to the security of a free state.” The
`Amendment had reached its final form.
`Separately from the bill of rights, the Senate
`considered structural amendments that affected the
`federal-state balance. It rejected the following: “That
`
`16
`
`House Speaker Frederick A. Muhlenberg wrote that the
`House version “takes in the principal Amendments which our
`Minority had so much at Heart.” CREATING THE BILL OF R IGHTS
`280 (1991). The Minority in the Pennsylvania convention
`proposed in part: “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 . . . .”
`2 DOCUMENTARY HISTORY OF THE R ATIFICATION OF THE
`CONSTITUTION 623-24 (1976).
`
`17
`
`JOURNAL OF THE FIRST SESSION OF THE SENATE 71
`
`(1820).
`
`18
`Id. at 77.
`
`19
`
`Id.
`
`
`
`13
`
`each state, respectively, shall have the power to
`provide for organizing, arming, and disciplining its
`own militia, whensoever Congress shall omit or
`20
`neglect to provide for the same . . . .” This highlights
`the distinction between the right of the people to have
`arms and the state militia power.
`
`In sum, the Second Amendment guarantees “the
`right of the people,” which includes residents of the
`seat of government, to keep and bear arms. This in
`turn promotes a well regulated militia, seen as
`necessary for a free state’s security.
`
`C. The Freedmen’s Bureau Act of 1866
`
`the
`Abolition of slavery nationwide by
`Thirteenth Amendment in 1865 did not end the
`incidents of slavery, which Congress sought to
`eradicate in 1866 with passage of the Civil Rights Act
`and the Freedmen’s Bureau Act. The latter declared
`protection for the “full and equal benefit of all laws
`and proceedings concerning personal liberty, personal
`security, and . . . estate . . ., including the
`21
`constitutional right to bear arms . . . .” That text and
`the debates on both are key to understanding how
`Congress interpreted the Second Amendment only 75
`
`20
`Id. at 75.
`
`21
`14 Stat. 173, 176 (1866).
`
`
`
`14
`
`years after it became part of the Constitution in 1791.22
`On January 5, 1866, Senator Lyman Trumbull
`introduced S. 60, the Freedmen’s Bureau Bill, and S.
`23
`61, the Civil Rights Bill.
` Both included among “civil
`rights or immunities” the right “to have full and equal
`benefit of all laws and proceedings for the security of
`person and estate.”24
`To exemplify their concerns, Rep. Zachariah
`Chandler endorsed the view that freedom for the
`slaves required, among other things: “‘The right of the
`people to keep and bear arms’ must be so understood
`as not to exclude the colored man from the term
`25
`‘people.’” Senator Charles Sumner noted a petition of
`black South Carolinians “that they should have the
`constitutional protection in keeping arms . . . and in
`complete liberty of speech and of the press.”26
`After the Senate passed S. 60, the House
`amended it to protect the civil right to “the security of
`person and estate, including the constitutional right to
`
`22
`
`See A. Amar, The Bill of Rights & the Fourteenth
`Amendment, 101 YALE L.J. 1193, 1245 n.228 (Apr. 1992);
`S T E P H E N P. H A L B R O O K , F R E E D M E N, T H E F O U R T E E N T H
`AMENDMENT, & THE RIGHT TO BEAR ARMS, 1866-1876, 1-55
`(1998).
`
`23
`
`24
`
`CONG. GLOBE, 39th Cong., 1st Sess. 129 (Jan. 5, 1866).
`
`Id. at 209, 211 (Jan. 12, 1866).
`
`25
`Id. at 217 (Jan. 12, 1866).
`
`26
`Id. at 337 (Jan. 22, 1866).
`
`
`
`15
`
`27
`bear arms.” Senator Trumbull recommended that
`the Senate concur, noting that the reference to the
`right to bear arms “does not alter the meaning.”28
`As passed by both Houses, the Freedmen’s
`Bureau Bill provided that where judicial proceedings
`were interrupted, military protection would be
`extended to protect all person’s “civil rights or
`immunities,” including “the right . . . to have full and
`equal benefit of all laws and proceedings for the
`security of person and estate,
`including the
`constitutional right of bearing arms . . . .”29
`the
`President Andrew Johnson vetoed
`Freedmen’s Bureau Bill, although his objections were
`30
`irrelevant to the right to bear arms.
` An override vote
`barely failed.31
`Meanwhile, the Fourteenth Amendment was
`working its way through Congress. Senator Samuel
`Pomeroy noted “safeguards of liberty,” including: “He
`
`27
`Id. at 654 (Feb. 5, 1866), 688 (Feb. 6, 1866).
`
`28
`Id. at 743 (Feb. 8, 1866).
`
`29
`Id. at 748 (Feb. 8, 1866), 775 (Feb. 9, 1866) (passage);
`1292 (Mar. 9, 1866) (text). Rep. William Lawrence quoted a
`military order that “civil rights and immunities” included: “The
`constitutional rights of all loyal and well disposed inhabitants to
`bear arms, will not be infringed . . . .” Id. at 908-09 (Feb. 17,
`1866).
`
`30
`
`31
`
`Id. at 916 (Feb. 19, 1866).
`
`Id. at 943 (Feb. 20, 1866).
`
`
`
`16
`
`should have the right to bear arms for the defense of
`himself and family and his homestead.”32
`In debate on the Civil Rights Bill, Rep. Bingham
`explained that the provisions of the Freedmen’s
`Bureau Bill “enumerate the same rights and all the
`rights and privileges that are enumerated in the first
`33
`section of this bill . . . .” As passed, the Civil Rights
`Act recognized the right of each “to full and equal
`benefit of all laws and proceedings for the security of
`person and property, as is enjoyed by white citizens .
`. . .”34
`
`On May 23, Senator Jacob Howard introduced
`the Fourteenth Amendment, referring to “the personal
`rights guaranteed and secured by the first eight
`amendments of the Constitution; such as . . . the right
`to keep and bear arms. . . . The great object of the first
`section of this amendment is, therefore, to restrain the
`power of the States and compel them at all times to
`respect these great fundamental guarantees.” 35
`Also on May 23, the second Freedmen’s Bureau
`
`32
`
`33
`
`Id. at 1182 (Mar. 5, 1866).
`
`Id. at 1291-92 (Mar. 9, 1866).
`
`34
`
`14 Stat. 27 (1866). This remains the law today. See 42
`U.S.C. § 1981.
`
`35
`CONG. GLOBE, 39th Cong., 1st Sess. 2765-66 (May 23,
`
`1866).
`
`
`
`17
`
`36
` Rep. Eliot observed that
`Bill, H.R. 613, was debated.
`§ 8 – which recognized “the constitutional right to bear
`37
`arms” – “simply embodies the provisions of the civil
`38
`rights bill.” He recited a report about black soldiers
`returning home to Kentucky: “Their arms are taken
`from them by the civil authorities . . . . Thus the right
`of the people to keep and bear arms as provided in the
`39
`Constitution is infringed . . . .” This rendered the
`freedmen “defenseless, for the civil-law officers disarm
`the colored man and hand him over to armed
`40
`marauders.”
`On May 29, the House passed the Freedmen’s
`Bureau Bill and then took up the Fourteenth
`41
`Amendment.
` As explained by Rep. George W. Julian,
`the constitutional amendment was needed to uphold
`the Civil Rights Act, which
`is pronounced void by the jurists and
`courts of the South. Florida makes it a
`misdemeanor for colored men to carry
`
`36
`
`Id. at 2773 (May 23, 1866). The bill had been reported
`by Rep. Eliot on behalf of the Select Committee on Freedmen’s
`Affairs. Id. at 2743 (May 22, 1866).
`
`37
`
`38
`
`Id. at 3412 (June 26, 1866).
`
`Id. at 2773 (May 23, 1866).
`
`39
`Id. at 2774.
`
`40
`
`41
`
`Id. at 2775.
`
`Id. at 2878 (May 29, 1866).
`
`
`
`18
`
`weapons without a license to do so from
`a probate judge, and the punishment of
`the offense is whipping and the pillory. .
`. . Cunning legislative devices are being
`invented in most of the States to restore
`slavery in fact.42
`Both Houses passed the second Freedmen’s
`Bureau Bill, which was again vetoed.
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