Essentially, the appellants claim a right to possess what they describe as “functional firearms,” by which they mean ones that could be “readily accessible to be used effectively when
necessary” for self-defense in the home. They are not asserting a right to carry such weapons outside their homes. Nor are they challenging the District’s authority per se to require the
registration of firearms.
In any event, Heller has invoked his rights under the Second Amendment to challenge the statutory classifications used to bar his ownership of a handgun under D.C. law, and the formal
process of application and denial, however routine, makes the injury to Heller’s alleged constitutional interest concrete and particular.
(That clears up a procedural question which was asserted by DC.)
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
The provision’s second comma divides the Amendment into two clauses; the first is prefatory, and the second operative. Appellants’ argument is focused on their reading of the Second
Amendment’s operative clause. According to appellants, the Amendment’s language flat out guarantees an individual right “to keep and bear Arms.” Appellants concede that the prefatory
clause expresses a civic purpose, but argue that this purpose, while it may inform the meaning of an ambiguous term like “Arms,” does not qualify the right guaranteed by the operative
portion of the Amendment.
The District of Columbia argues that the prefatory clause declares the Amendment’s only purpose—to shield the state militias from federal encroachment—and that the operative
clause, even when read in isolation, speaks solely to military affairs and guarantees a civic, rather than an individual, right. In other words, according to the District, the operative clause is
not just limited by the prefatory clause, but instead both clauses share an explicitly civic character
But because the District reads “a well regulated Militia” to signify only the organized militias of the founding era—institutions that the District implicitly argues are no longer in existence today—invocation of the Second Amendment right is conditioned upon service in
a defunct institution.
today—in fact, at oral argument, appellees’ counsel asserted that it would be constitutional for the District to ban all firearms outright. In short, we take the District’s position to be
that the Second Amendment is a dead letter.
(some) assert that the Second Amendment was written for the exclusive purpose of preserving
state militias, and both theories deny that individuals qua individuals can avail themselves of the Second Amendment today
...In determining whether the Second Amendment’s guarantee is an individual one, or some sort of collective right, the most important word is the one the drafters chose to describe the
holders of the right—“the people.” That term is found in the First, Second, Fourth, Ninth, and Tenth Amendments. It has never been doubted that these provisions were designed to
protect the interests of individuals against government intrusion, interference, or usurpation.
The District’s argument, on the other hand, asks us to read “the people” to mean some subset of individuals such as “the organized militia” or “the people who are engaged in militia service,” or perhaps not any individuals at all—e.g., “the states.”
In United States v. Verdugo- Urquidez, 494 U.S. 259 (1990), the [Sureme] Court looked specifically at the Constitution and Bill of Rights’ use of “people” ...“the people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.
It seems unlikely that the Supreme Court would have lumped these provisions together without comment if it were of the view that the Second Amendment protects only a collective right.
In sum, the phrase “the right of the people,” when read intratextually and in light of Supreme Court precedent, leads us to conclude that the right in question is individual.
The wording of the operative clause also indicates that the right to keep and bear arms was not created by government, but rather preserved by it. Hence, the Amendment acknowledges “the right . . . to keep and bear Arms,” a right that pre-existed the Constitution like “the freedom of speech
The pre-existing right to keep and bear arms was premised on the commonplace assumption that individuals would use them for these private purposes, in addition to whatever militia
service they would be obligated to perform for the state. The premise that private arms would be used for self-defense accords with Blackstone’s observation, which had influenced thinking
in the American colonies, that the people’s right to arms was auxiliary to the natural right of self-preservation. See WILLIAM BLACKSTONE, 1 COMMENTARIES *136, *139; see also Silveira, 328 F.3d at 583-85 (Kleinfeld, J.); Kasler v. Lockyer, 2 P.3d 581, 602 (Cal. 2000) (Brown, J., concurring). The right of self preservation, in turn, was understood as the right to defend oneself against attacks by lawless individuals, or, if absolutely necessary, to resist and throw off a tyrannical government.
When we look at the Bill of Rights as a whole, the setting of the Second Amendment reinforces its individual nature. The Bill of Rights was almost entirely a declaration of individual rights, and the Second Amendment’s inclusion therein strongly indicates that it, too, was intended to protect personal liberty.
In contrast to the collective right theorists’ extensive efforts to tease out the meaning of “bear,” the conjoined, preceding verb “keep” has been almost entirely neglected. In that tradition, the District offers a cursory and largely dismissive analysis of the verb. The District appears to claim that “keep and bear” is a unitary term and that the individual word “keep” should be given no independent significance. This suggestion is somewhat risible in light of the District’s admonishment, earlier in its brief, that when interpreting constitutional text
“every word must have its due force, and appropriate meaning; . . . no word was unnecessarily used or needlessly added.” Appellees’ Br. at 23 (quoting Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 570-71 (1840)). Even if “keep” and “bear” are not read as a unitary term, we are told, the meaning of “keep” cannot be broader than “bear” because the Second Amendment only protects the use of arms in the course of militia service. Id. at 26-27. But this proposition assumes its conclusion, and we do not take it seriously.
Thus when read in light of the second Militia Act, Miller defines the militia as having only two primary characteristics: It was all free, white, able-bodied men of a certain age who had given
their names to the local militia officers as eligible for militia service. Contrary to the District’s view, there was no organizational condition precedent to the existence of the
The District argues that the modifier “well regulated” means that “[t]he militia was not individuals acting on their own; one cannot be a one-person militia.” We quite agree that
the militia was a collective body designed to act in concert. But we disagree with the District that the use of “well regulated” in the constitutional text somehow turns the popular militia
embodied in the 1792 Act into a “select” militia that consisted of semi-professional soldiers like our current National Guard.
...The Amendment does not protect “the right of militiamen to keep and bear arms,” but rather “the right of the people.” The operative clause, properly read, protects the ownership and use of weaponry beyond that needed to preserve the state militias. Again, we point out that if the competent drafters of the Second Amendment had meant the right to be limited to the protection of state militias, it is hard to imagine that they would have chosen the language they did. We therefore take it as an expression of the drafters’ view that the people possessed a natural right to keep and bear arms, and that the preservation of the militia was the right’s most salient political benefit—and thus the most appropriate to express in a political document.
On the question whether the Second Amendment protects an individual or collective right, the Court’s opinion in Miller is most notable for what it omits. The government’s first argument
in its Miller brief was that “the right secured by [the Second Amendment] to the people to keep and bear arms is not one which may be utilized for private purposes but only one which
exists where the arms are borne in the militia or some other military organization provided for by law and intended for the protection of the state.” Appellant’s Br. at 15, 307 U.S. 704
(No. 696). This is a version of the collective right model.
Emerson, 270 F.3d at 222. Rather, the Court followed the logic of the government’s secondary position, which was that a shortbarreled shotgun was not within the scope of the term “Arms”
in the Second Amendment.
To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the
Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the
depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the
citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right
facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second
Amendment’s civic purpose, however, the activities it protects are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued or
intermittent enrollment in the militia.