DISTRICT OF COLUMBIA ANTHONY HELLER

v. DICK

HELLER CASE HISTORY
DICK HELLER, RESIDENT OF D.C., FILED SUIT IN U.S. DISTRICT COURT AFTER BEING DENED PERMIT TO REGISTER HANDGUN & DENIED RIGHT TO POSSESS FUNCTIONAL FIREARM IN HIS HOME. DISTRICT COURT HELD AGAINST HELLER HOLDING THERE IS NO INDIVIDUAL RIGHT TO FIREARM OWNERSHIP OUTSIDE OF THE MILITIA, & SINCE HELLER WAS NOT MEMBER OF MILITIA CASE WAS DUE TO BE DISMISSED. HELLER APPEALS. US COURT OF APPEALS FOR DC CIRCUIT, REVERSED & REMANDED, BY A 2-1 VOTE, HOLDING “THE RIGHT TO KEEP AND BEAR ARMS” IS AN INDIVIDUAL RIGHT SEPARATE AND APART FROM SERVICE IN ANY ORGANIZED MILITIA. DISTRICT OF COLUMBIA REQUESTS CERT. SCOTUS GRANT CERT- “WHETHER [D.C. GUN LAWS] VIOLATE SECOND AMENDMENT RIGHTS OF INDIVIDUALS WHO ARE NOT AFFILIATED WITH ANY STATE-REGULATED MILITIA, BUT WHO WISH TO KEEP HANDGUNS & OTHER FIREARMS FOR PRIVATE USE IN THEIR HOMES.

WHY DICK HELLER?

Attorney for Heller, Alan Gura, discusses how case came to be
Interview with Alan Gura, Esq. Guntalk, March 9, 2008

D.C. GUN LAWS IN QUESTION
D.C. Code § 7-2502.02(a)(4)
• Generally bars the registration of handguns (with an exception for retired D.C. police officers)

D.C. Code § 22-4504
•Prohibits carrying a pistol without a license, insofar as that provision would prevent a registrant from moving a gun from one room to another within his or her home

D.C. Code § 7-2507.02
•Requires that all lawfully owned firearms be kept unloaded and disassembled or bound by a trigger lock or similar device. [DISASSEMBLY/TRIGGER LOCK REQUIREMENT] REQUIREMENT

DISTRICT OF COLUMBIA’S PURPOSE IN ENACTING FIREARM STATUTES IN QUESTION (INCLUDING HANDGUN BAN)
PUBLIC SAFETY PURPOSE
    “Handguns are used in roughly 54% of all murders, 60% of robberies, 26% of assaults and 87% of all murders of law enforcement officers” (National Stats) Numbers were even “more pronounced” in the District. Eight-seven percent of all guns used in crime are handguns . These statistics coupled with the nature of the handgun as mobile and concealable, more readily susceptible to theft and available to criminals, in a crowded urban environment pose special and unique dangers. The City Council also noted that handguns play significant roles in crimes of passion hallmarked by “spontaneous violence” where handguns exacerbate the problem because of their ready availability. Many accidental deaths involving children and handguns were a concern, since handguns are easier to wield by children. After considering less restrictive alternatives, so the District asserts, “the legislature concluded that ‘the ultimate resolution of the problems of gun related crimes and gun related accidents…’ is the elimination of the availability of handguns.”

 

RIGHTS & INTERESTS AT STAKE

DICK HELLER

INDIVIDUAL CITIZEN’S RIGHT TO KEEP AND BEAR ARMS IRRESPECTIVE OF SERVICE IN MILITIA

VS.
D.C. MAYOR FENTY

VS.

GOVERNMENTAL (DISTRICT OF COLUMBIA) INTEREST IN PUBLIC SAFETY/REDUCING GUN RELATED CRIMES

UNITED STATES v. JACK MILLER

ONLY PRIOR SUPREME COURT CASE TO ADDRESS

UNITED STATES DISTRICTJUDGE HEARTSILL RAGON WESTERN DISTRICT OF ARKANSAS

“I WANT TO SAY THAT I AM UNEQUIVOCALLY OPPOSED TO PISTOLS IN ANY CONNECTION WHATEVER. IF YOU WANT SOMETHING IN THE HOME FOR DEFENSE, THERE IS THE SHOTGUN AND THE RIFLE, BUT A PISTOL IS PRIMARILY FOR THE PURPOSE OF KILLING SOMEBODY.”
UNITED STATES CONGRESSIONAL RECORD AT 729, DECEMBER 17, 1924.

NEITHER MILLER, NOR HIS ATTORNEY, PAUL E GUTENSOHN, APPEAR FOR ORAL ARGUMENTS BEFORE SUPREME COURT.

GUTTENSOHN SENDS TELEGRAM TO SCOTUS:

“SUGGEST CASE BE SUBMITTED ON APPELLANT BRIEF. UNABLE TO OBTAIN MONEY FROM CLIENTS TO BE PRESENT AND ARGUE CASE.”

MILLER NEVER ADDRESSED THE ISSUE- IS THE SECOND AMENDMENT A PERSONAL OR COLLECTIVE RIGHT?  On May 4, 1939, SCOTUS in a terse, UNANIMOUS (8-0, with one justice recusing) five page opinion declined to comment on the nature of the right (i.e. personal vs. collective right). Instead, the Court held that a “sawed off shotgun” does not fall within the definition of “arms” within the Second Amendment.  Case was “remanded for further proceedings.”  ON APRIL 5, 1939“MILLER’S BULLET-RIDDEN CORPSE WAS FOUND ON THE BANK OF THE NEARLY DRY LITTLE SPENCE CREEK” NEAR “CHELSEA OKLAHOMA… MILLER WAS SHOT FOUR TIMES WITH .38, TWICE IN THE CHEST, ONCE UNDER THE LEFT ARM, AND ONCE THROUGH THE LEFT ARM. THE .45 AUTOMATIC NEXT TO HIM HAD BEEN SHOT THREE TIMES.” (THE PECULIAR STORY OF
UNITED STATES v. MILLER, BRIAN L. FRYE)

HELLER CASE CUTS ACROSS PARTISAN LINES & MAKES FOR STRANGE BEDFELLOWS
Perhaps the most interesting Amicus Curiae may have been filed by the Pink Pistols which describes itself as “an unincorporated association established in 2000 to advocate on behalf of lesbian, gay, bisexual and trans gendered (hereinafter LGBT) firearms owners, with specific emphasis on self defense issues” who filed on behalf of Heller and personal right group.

Pink Pistols is aware of the long history of hate crimes and violence directed at the LGBT community. More anti-gay hate crimes occur in the home than in any other location, and there are significant practical limitations on the ability of the police to protect individuals against such violence. Thus, the right to keep and bear arms for self-defense in one’s home is of paramount importance to Pink Pistols and members of the LGBT community.
Brief of Pink Pistols And Gays And Lesbians For Individual Liberty As Amici Curiae in Support of Respondent, page 1.

AN ADMINISTRATION DIVIDED
PAUL CLEMENT

United States Solicitor General for Bush Administration

VICE PRESIDENT CHENEY BREAKS WITH BUSH ADMINSTRATION ON NATURE OF RIGHT AND STANDARD OF REVIEW. BUSH SOLICITOR GENERAL CLEMENT ARGUES THAT RIGHT IS PERSONAL, BUT IS INTERMEDIATE NOT FUNDAMENTAL RIGHT, WITH STANDARD OF REVIEW AS “HEGHTENED SCRUTINY.” HELLER & VP SUGGEST PERSONAL RIGHT IS FUNDAMENTAL.

JAMES MADISON
AUTHOR OF SECOND AMENDMENT

“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.”

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 PREAMBLE: “A WELL REGULATED MILITIA, BEING NECESSARY TO THE SECURITY OF A FREE STATE…” OPER ATI VE TEX T: “…THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS SHALL NOT BE INFRINGED.”

Preamble Cannot Negate Operative Text

ANALYSIS OF PLAIN TEXT OF AMENDMENT
MEANING OF “KEEP”
INDIVIDUAL RIGHTS— keep is personal right; as in to keep in
the house. -“No papist…shall or may have or keep in his house… any arms…”(1 W.&M., Sess.1, c.15,§4(1689).

COLLECTIVE RIGHTS— “Keep” has a military connotation to
it. Many State militia laws used “keep” to refer to requirement that militiamen have arms so they can bring them to muster. Securing their right to keep the arms would ensure that they could “bear” them.

ANALYSIS OF PLAIN TEXT OF AMENDMENT
MEANING OF “BEAR ARMS”
INDIVIDUAL RIGHTS— recognizes military connotation, but
argues that it is not exclusive one. Disarmament statutes stripping political minorities of right to possess firearms often used the word bear (Scottish Highlanders & Catholics)

COLLECTIVE RIGHTS— Clearly the phrase has distinctly
military contest. Paragraph 28 of Declaration of Independence--“He [the King] has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.”

“MILITIA” vs. “THE PEOPLE”
WHO DOES THE RIGHT BELONG TO?
INDIVIDUAL RIGHTS— preamble “militia” simply informs the
nature of the right securing operative text; alternatively all male of age members of the republic are members of the militia or capable of being militia. When called for service in militia, men are “expected to appear bearing arms supplied by themselves…” Right belongs to THE PEOPLE

COLLECTIVE RIGHTS— entitles individuals to exercise this
right to possess arms only as part of state regulated (i.e. well regulated) militia. Framers Passed Second Amendment as Federalism measure to curb Congressional Powers afforded under Militia Clauses in Article I, §8, cls.15-16.

“MILITIA” & “THE PEOPLE” “GO TOGETHER BEAUTIFULLY” NOT MUTUALLY EXCLUSIVE

INDIVIDUAL RIGHTS ARE PROTECTED Justice Scalia’s comment on this during oral arguments

CHIEF JUSTICE ROBERTS SEEMS TO BELIEVE SECOND AMENDMENT GUARANTEES AN INDIVIDUAL RIGHT OF THE PEOPLE APART FROM THE MILITIA

Chief Justice Roberts’ comment on this during oral arguments

BOTH SIDES AGREE FRAMERS SECURED A RIGHT TO KEEP & BEAR ARMS IN REACTION TO BRITISH COLONIAL EXPERIENCE
QUESTION IS: IS THE RIGHT PERSONAL, OR MILITIA RELATED?

INDIVIDUAL RIGHTS ARGUMENT THAT FRAMERS SECURED INDIVIDUAL RIGHT TO BEAR ARMS IN REACTION TO BRITISH COLONIAL EXPERIENCE

BRITISH GENERAL THOMAS GAGE

1. General & commander in chief of the British North American forces from 1763 to 1775 (early days of revolution). 2. Oversaw systematic campaign to disarm Boston & dominate them militarily. 3. Enforced ban on imports of all guns and gunpowder 4. Sent Troops to Concord to seize arms of militia (“Shot Heard Round the World”) 5. After Lexington & Concord, Boston was cut off from remainder of province…Gen. Gage offered Bostonians free passage from City if they would forfeit their arms

FIRST BATTLE OF REVOLUTION AT CONCORD FOUGHT OVER BRITISH EXPEDITION TO SEIZE WEAPONS FROM PRIVATE PROPERTY

[Courtesy of National Park Service, U.S. Department of Interior] (http://www.nps.gov/mima/north-bridge-questions.htm)

Attorney John Adams in defending British Redcoats prosecuted for Murder in Boston Massacre, recognized rights of colonists to possess arms

“Here every private person is authorized to arm himself, and on the strength of this authority, I do not deny the inhabitants had a right to arm themselves at that time, for their defence, not for offence…”

“WELL-REGULATED”
DOES IT MEAN GOVERNMENT RUN OR DOES IT DEPEND UPON ITS EXISTENCE THE BLESSING OF THE GOVERNMENT?

“ETHAN ALLEN’S CAPTURE OF FORT TICONDEROGA ACCOMPLISHED BY ‘TWO HUNDRED UNDISCIPLINED MEN, WITH SMALL ARMS, WITHOUT A SINGLE BAYONET…’ HARDLY A ‘WELL-REGULATED’ MILITIA.”

WHAT IF SCOTUS AGREES THAT THE SECOND AMENDMENT RIGHT IS A PERSONAL RIGHT…WHAT NEXT? HELLER POSITION
• • • Right is personal right, & therefore the DC ordiances are PER SE UNCONSTITUTIONAL. Fall Back Position---Personal Right is FUNDAMENTAL RIGHT STANDARD OF REVIEW: STRICT SCRUTINY

SOLICITOR GENERAL POSITION
• • Right is personal, but Court should this right is a “middle-tiered, intermediate right”; STANDARD OF REVIEW=Court should review the government regulation under a “HEIGHTENED REVIEW”---BURDEN ON GOVERNMENT TO SHOW LAW IS
SUBSTANTIALLY RELATED TO IMPORTANT GOVERNMENTAL INTEREST

D.C. POSITION
2. Right is not personal,but milita-related; however if Court decides it is personal right, Standard of Review=REASONABLENESS (Rational Basis Scrutiny with burden on individual)

AP Photo by Dana Verkouteren

WHY THE HELLER CAMP SAYS THE RIGHT TO KEEP AND BEAR ARMS IS A PERSONAL FUNDAMENTAL RIGHT • IT IS NECESSARY TO DEFEND ONE’S LIFE INSIDE ONE’S HOME- SELF-DEFENSE PURPOSE. 2.IT IS NECESSARY IN THE DEFENSE OF SOCIETY AGAINST THE TYRANNICAL USURPATION OF AUTHORITY (“DOOMSDAY PROVISION”)

Judge Kozinski Chief Judge Ninth Circuit Court of Appeals

SECOND AMENDMENT IS: DOOMSDAY PROVISION
SECOND AMENDMENT DESIGNED TO PROTECT INDIVIDUALS AGAINST DESPOTISM & TYRANNY

“MY EXCELLENT COLLEAGUES HAVE FORGOTTEN THESE BITTER LESSONS OF HISTORY. THE PROSPECT OF TYRANNY MAY NOT GRAB THE HEADLINES THE WAY VIVID STORIES OF CRIME ROUTINELY DO. BUT FEW SAW THE THIRD REICH UNTIL IT WAS TOO LATE. THE SECOND AMENDMENT IS A DOOMSDAY PROVISION, ONE DESIGNED FOR THOSE EXCEPTIONALLY RARE CIRCUMSTANCES WHERE ALL OTHER RIGHTS HAVE FAILED-WHERE THE GOVERNMENT REFUSES TO STAND FOR RE-ELECTION AND SILENCES THOSE WHO PROTEST; WHERE COURTS HAVE LOST THE COURAGE TO OPPOSE, OR CAN FIND NO ONE TO ENFORCE THEIR DECREES. HOWEVER IMPROBABLE THESE CONTINGENCIES MAY SEEM TODAY, FACING THEM UNPREPARED IS

FUNDAMENTAL RIGHT OF PERSONAL RIGHT TO POSSESS FIREARM AS BARRIER AGAINST TYRANNY Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.
THE FEDERALIST NO.46 (MADISON)

JOSEPH STORY

Early Commentator on Constitution (Commentaries on the Constitution of the United States) & United States Supreme Court Justice (nominated by James Madison)

“The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and it will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”2 Story, Commentaries at 607.

JUSTICE SCALIA SPEAKS OF RIGHT AS “INHERENT” TO SELF-DEFENSE AND AS A PERSONAL RIGHT CONFIRMED BY WILLIAM BLACKSTONE & JOSEPH STORY

Justice Scalia’s comment on this during oral arguments

JUSTICES DISCUSS OR CONSIDER STANDARD OF REVIEW

CHIEF JUSTICE QUESTIONS REASONABLENESS OF D.C. GUN LAW TOTAL BANNING OF POSSSESSION

Chief Justice Roberts’ comment on this during oral arguments

JUSTICE BREYER QUESTIONS WHY D.C. GUN LAW IS NOT REASONABLE IN LIGHT OF THE SECOND AMENDMENT SECOND AMENDMENT SUBJECT TO ONLY “RESONABLE GOVERNMENT REGULATION” (as opposed to no regulation or strict scrutiny)

Justice Breyer comments during oral arguments

SEEMS TO SUGGEST COURT APPROACH REVIEW OF THE SECOND AMENDMENT ANEW WITHOUT DRAGGING PRIOR ARTICULATED STANDARDS “BAGGAGE” OF REVIEW

Chief Justice Roberts’ comment on this during oral arguments

CHIEF JUSTICE COMMENTS ON ABSURDITY OF TRIGGER LOCK AND HOW IT SEEMS TO BE UNREASONABLE IN LIGHT OF RIGHT TO DEFEND ONESELF

Chief Justice Roberts’ comment on this during oral arguments

SOLICITOR GENERAL FOR BUSH ADMINSTRATION ARGUES FOR INTERMEDIATE SCRUTINY STANDARD OF ANY SECOND AMENDMENT CHALLENGE
PAUL CLEMENT

United States Solicitor General for Bush Administration

ATTORNEY ALAN GURA FOR RESPONDENT HELLER COMMENTS ON CONSEQUENCES OF SOLICITOR GENERAL & BUSH ADMINISTRATION WATERED DOWN SECOND AMENDMENT RIGHT

Interview with Alan Gura, Esq. Guntalk, March 9, 2008 http://media.libsyn.com/media/guntalk/080309guntalkB.mp3 (visited April 8, 2008)

NEARLY 70 YEARS FROM MILLER TO HELLER WHAT RIGHT EXACTLY DOES THE SCOND AMENDMENT GUARANTEE? STAY TUNED…AN ANSWER MAY BE FORTHCOMING IN JUNE