District of Columbia v. Heller Brief for Amicus Curiae

    No. 07-290

In the

Supreme (tart a f  thz Hrntri* Btutzs

DISTRICT OF COLUMBIA and 
ADRIAN M. FENTY, Mayor of the District of Columbia,

Petitioners,
v.

DICK ANTHONY HELLER,
Respondent.

O n W r it  of C e r t io r a r i to  the  U nited  States C ourt 
of A p p e a l s  fo r  th e  D istrict  of C olum bia  C ircuit

BRIEF OF AMICUS CURIAE THE NAACP LEGAL 
DEFENSE & EDUCATIONAL FUND, INC.

IN SUPPORT OF PETITIONERS

T heodore M. Shaw 
Director Counsel 

Jacqueline A. Berrien 
V ictor A. Bolden*
Debo R A degbile 
Marc K. Battle 
NAACP L egal D efense 
& E ducational F und, Inc. 

99 Hudson Street 
Suite 1600
New York, NY 10013 
(212) 965-2200

January 11,2008

M ichael B. de L eeuw 
Darcy M. Goddard 
Dale E. Ho 
F ried, Frank, H arris, 
Shriver & Jacobson LLP  

One New York Plaza 
New York, NY 10004 
(212) 859-8000

*  Counsel of Record



TABLE OF CONTENTS

TABLE OF AUTHORITIES

Page

....iii

INTEREST OF AMICUS CURIAE ........................... 1

SUMMARY OF ARGUMENT..................................... 2

ARGUMENT.................................................................4

I. A Radical Departure from The Court’s Second 
Amendment Jurisprudence Is Not Warranted..,. 4

A. The Second Amendment Does Not Protect an
Individual Right to “Keep and Bear Arms” for 
Purely Private Purposes............. ................... 6

B. The Clear and Established Understanding of 
the Second Amendment Should Not Be 
Disturbed........................................................ 18

1. Abandoning the clear and established
understanding of the Second Amendment 
would produce substantial upheaval in the 
manner in which firearms are regulated 
nationwide................................................. 18

2. Abandoning the clear and established
understanding of the Second Amendment 
unduly limits the ability of States and 
municipalities struggling to address the 
problem of gun violence, a problem of 
particular interest to this nation’s African- 
American community............................... 25



11

3. Abandoning the clear and established 
understanding of the Second Amendment 
would not address racial discrimination in 
the administration of criminal justice in 
general or the administration of firearm
restrictions in particular.......................... 29

CONCLUSION.......................................................... 31



Ill

TABLE OF AUTHORITIES

Cases................................................. ............... Page(s)

Adams v. Williams, 407 U.S. 143 (1972)............... 11

Agostini v. Felton, 521 U.S. 203 (1997).......... ........5

Arizona v. Rumsey, 467 U.S. 203 (1984).................5

Aym ette vState, 21 Tenn. (2 Hum.) 154
(1840)................................................................... 16

Batson v. Kentucky, 476 U.S. 79 (1984)................ 30

Brewer v. Commonwealth,
206 S.W.3d 343 (Ky. 2006)...............................  17

Brown v. Board o f Education,
347 U.S. 483 (1954).....................................  3, 4, 6

Burton v. Sills, 248 A.2d 521 (N.J. 1968).............. 15

Cases v. United States,
131 F.2d 916 (1st Cir. 1942)................. 10, 13, 24

City o f Salina v. Blaksley,
83 P. 619 (Kan. 1905)...............................  16

Commonwealth v. Davis,
343 N.E.2d 847 (Mass. 1976)............................  15

Dickerson v. United States,
530 U.S. 428 (2000)............................................... 5

Dr. Miles Medical Co. v. John D. Park & Sons Co., 
220 U.S. 373 (1911) 6



IV

English v. State, 35 Tex. 473 (1872)...................... 16

Ex Parte Thomas, 97 P. 260 (Okla. 1908)............  16

Fife v. State, 31 Ark. 455 (Ark. 1876)............  16, 17

Gillespie v. City o f Indianapolis,
185 F.3d 693 (7th Cir. 1999)...... ......................  14

Harris v. State, 432 P.2d. 929 (Nev. 1967)...........  15

Hilberg v. Woolworth, 761 P.2d 236 (Colo.
1988)...................................................................  17

Hill v. Georgia, 53 Ga. 472 (1874).........................  16

In re Atkinson, 291 N.W.2d 396 (Minn. 1980).....  15

In re Cassidy,
51 N.Y.S.2d 202 (N.Y. App. Div. 1944)...........  15

In re Ramirez, 193 Cal. 633 (1924)........................  16

John R. Sand & Gravel Co. v. United States,
No. 06-1164 slip op. (Jan. 8, 2008)..................... 5

Kalodimos v. Village o f Morton Grove,
470 N.E.2d 266 (111. 1984).......   15

Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 
127 S. Ct. 2705 (2007)...........................................6

Lewis v. United States, 445 U.S. 55 (1980)......  8, 11

Love v. Pepersack, 47 F.3d 120 (4th Cir.
1995).................................................................... 15

Masters v. State, 653 S.W.2d 944 (Tex. App.
1983) 15



V

Maxwell v. Dow, 176 U.S. 581 (1900)......................7

Miller v. Texas, 153 U.S. 535 (1894)................... 7, 8

Miranda v. Arizona, 384 U.S. 436 (1966)................5

Mosher v. City o f Dayton,
358 N.E.2d 540 (Ohio 1976).............................  16

NAACP v. Button, 371 U.S. 415 (1963)...................1

Parker v. District o f Columbia,
478 F.3d 370 (2007).......................4, 9, 20, 23, 24

Payne v. Tennessee, 501 U.S. 808 (1991)................5

Planned Parenthood o f Southeastern Pa. v.
Casey, 505 U.S. 833 (1992)............................ . 4, 6

Plessy v. Ferguson, 163 U.S. 537 (1896)............ 2, 4

Presser v. Illinois, 116 U.S. 252 (1886)..............  7, 8

Robertson v. Baldwin, 165 U.S. 275 (1897)........... . 8

Rohrbaugh v. State,
607 S.E.2d 404 (W. Va. 2004).....................  17, 18

Sandidge v. United States,
520 A.2d 1057 (D.C. 1987)................................  15

Silveira v. Lockyer, 312 F.3d 1052 (9th Cir.
2002).............................................................  12, 14

State v. Anderson,
2000 Tenn. Crim. App. LEXIS 60 (Tenn.
2000) 17



VI

State v. Blanchard, 776 So.2d 1165 (La.
2001)...................................................................  17

State v. Fennell,
382 S.E.2d 231 (N.C. Ct. App. 1989)................ 15

State v. Kerner, 107 S.E. 222 (N.C. 1921) ............19

State v. Nickerson, 247 P.2d 188 (Mont.
1952)..........................    17

State v. Vlacil, 645 P.2d 677 (Utah 1982)...........  15

State v. Williams, 148 P.3d. 993 (Wash.
20°6 )............................................................. 17, 18

State v. Workman, 35 W. Va. 367 (1891).............. 16

State Oil Co. v. Khan, 522 U.S. 3 (1997)..................5

Stillwell v. Stillwell,
2001 Tenn. Ct. App. LEXIS 562 (2001)....  17, 18

Twining v. New Jersey, 211 U.S. 78 (1908).......  7, 8

United States v. Armstrong,
517 U.S. 456 (1996)............................................ 30

United States v. Emerson,
270 F.3d 203 (5th Cir. 2001)..................... 7, 9, 17

United States v. Hale,
978 F.2d 1016 (8th Cir. 1992)...........................  14

United States v. In ti Bus. Machines Corp.,
517 U.S. 843 (1996)............................................... 5

United States v. Lopez, 514 U.S. 549 (1995)........  11



Vll

United States v. Miller,
307 U.S. 174 (1939)........................8, 9, 11, 14, 15

United States v. Oakes,
564 F.2d 384 (10th Cir. 1977)...........................  14

United States v. Rybar,
103 F.3d 273 (3d Cir. 1996).................. 13, 14, 15

United States v. Toner,
728 F.2d 115 (2d Cir. 1984)..............................  15

United States v. Warin,
530 F.2d 103 (6th Cir. 1976).......................  13, 14

United States v. Wright,
117 F.3d 1265 (llth  Cir. 1997).........................  15

Vasquez v. Hillery, 474 U.S. 254 (1986)........ ....... 30

Yick Wo v. Hopkins, 118 U.S. 356 (1886)............  30

Constitutional Provisions

U.S. Const, amend. I I ......................................passim

U.S. Const, amend. V ............................. .........19, 30

U.S. Const, amend. XIV .......................... 3, 4, 19, 30

Statutes

18 U.S.C. § 92l(a)(l7)(B) (2008)............................  22

18 U.S.C. § 922(a)(7)-(8) (2008)...... ......................  22



Vlll

18 U.S.C. § 922(o) (1948).................................... . 22

18 U.S.C. § 922(q) (1990)................................... . 11

18 U.S.C. § 929 (2008)............................................. 22

18 Pa. Cons. Stat. § 6121.............   21

720 111. Comp. Stat. § 5/24-2.1................................ 22

Act of the Corporation of the City of
Washington of Dec. 9, 1809............................... 20

Administrative Code of the City of New
York, NY §§ 10-301(16), 10-303.1 .................   22

Aurora, IL Code of Ordinances, § 29-49.................21

Cal. Penal Law §§ 12320, 12275-12289.5....... 21, 22

Cambridge Municipal Code §§ 9.16.20 -
9.16.50.................................................................. 21

Cincinnati, OH Administrative Code § 708-
37..........................................................................22

City Code of the City of Evanston, IL § 9-8-2...... 21

City of Chicago, IL Municipal Code §§ 8-20-
030(h), 8-20-40, 8-20-50.............................   21

City of Chicago, IL Municipal Code §§ 8-20-
030(k), 8-20-40, 8-20-50..........................    21

Code of the City of Albany, NY §§ 193-13 -
193-16...............................  22

Code of the City of Buffalo, NY §§ 180-l(b),
(f) 22



IX

Code of the City of Rochester §§ 47-5(b), (f).... . 22

Code of Ordinances of the City of Dayton §§
138.24- 138.99................................................... 22

Codified Ordinances of Cleveland, OH §§
628.02-628.99...................................................... 22

Col. Rev. Stat. § 18-12-109............................. ........22

Columbus City, OH Code §§ 2323.11(G)(1),
2323.31.......................................      22

Conn. Gen. Stat. §§ 53-202a-j, m-o ...................... 21

Conn. Gen. Stat. § 53-2021 ...................................  22

D.C. Code §§ 7-2501.0l(l3a), 7-2505.02...............  22

D.C. Code § 7-2502.02.............................................. 20

Fla. Stat. § 790.31 .......   22

Ga. Code §§ 16-1M20 -  16-11-125........................ 22

Haw. Rev. Stat. §§ 134-1, 134-4(e)........... ............21

Haw. Rev. Stat. § 134'8(a).....................................   22

Highland Park, IL City Code §§ 134.001 -
134.099.................................................................21

Ind. Code § 35-47-5-11............................................. 22

Ky. Rev. Stat. §§ 237.060(7), 237.080.................... 22

La. Rev. Stat. §§ 40:1810-12....................................22

Mass. Gen. Laws Ch. 140 §§ 121, 131M.................21



X

Md. Code §§ 4-301 -  4-303.................................. . 21

Me. Rev. Stat. tit. 17-A § 1056.............. ................  22

Mich. Comp. Laws § 750.224c............................... 22

Miss. Code § 97-37-31 ........................... .......... 22

Morton Grove, IL Village Code §§ 6-2-1 -  6-2-
3 .............   21

N.J. Stat. Ann. §§ 2C: 39-l(w), 2C: 39*5(0,
2C: 58-12.....  21

N.J. Rev. Stat. § 2C: 39-1(0.....................................22

N.Y. Penal Law §§ 265.00(18), 265.01(8).............  22

N.Y. Penal Law §§ 265.00(21-22), 265.10,
265.20(16).............................................      21

Oak Park Village Code §§ 27-1-1, 27-2-1...............21

Oakland, CA Municipal & Planning Codes §§
9.36.400-9.36.440......................................    21

Okla. Stat. Ann. tit. 21 § 1289.19..........................  22

Or. Rev. Stat. § 166.350........................................... 22

P.R. Laws Ann. 25 § 456m.......................................21

P.R. Laws Ann. tit. 25 § 455(j), 458(j), 459a........ 22

PAl01a-04a, 112a.................................................... 20

R. I. Gen. Laws §11-47-20.1...................................22

S. C. Code § 16-23-710 22



XI

South Bend, IN Code of Ordinances §§ 13-94
-  13.99.................................................................. 22

Toledo, OH Municipal Code §§ 549.01(c),
549.25................................................................... 21

Toledo, OH Municipal Code §§ 549.0l(x),
549.23, 549.25..........      22

Town of Georgetown Ordinance of Oct. 24,
1801.............................................................. 19, 20

Tx. Penal Code §§ 46.01(9), 46.05 (2 ).................... 22

Tx. Penal Code §§ 46.01(12), 46.05 (7 )..... ......... 22

Village of Wilmette, IL Code of Ordinances §
12-24..................................................................... 21

Wilmington, DE City Code § 36-156.....................22

Winnetka, IL Village Code § 9.12.020..................  21

Other Authorities

Warren E. Burger, The Right to Bear Arms,
Parade Mag., Jan. 14, 1990........................  11, 12

Carl T. Bogus, The Hidden History o f the 
Second Amendment, 309 U.C. Davis L.
Rev. 3 (1998)......................................................  30

The Centers for Disease Control, WISQARS 
Injury Mortality Reports ( l999-2004), 
httpJ/webappa.cdc.gov/sasweb/ncipc/mort 
rate 10_sy.html......................................  27, 28, 29



The Centers for Disease Control and
Prevention, WISQARS, Leading Cause o f  
Death Reports (1999-2004), 
http://webappa.cdc.gov/sasweb/ncipc/leadc 
aus.html...............................................1, 2, 26, 29

Children’s Defense Fund, Protect Children,
Not Guns (2007), available at 
www.childrensdefense.org/gunreport....... 22, 26

Philip J. Cook & Jens Ludwig, Gun Violence 
The Real Costs (Oxford Univ. Press
2002)....................................................................27

Robert J. Cottrol & Raymond T. Diamond,
The Second Amendment'■ Toward an 
Afro-Americanist Reconsideration, 80 
Geo. L.J. 309 (1991)..............................  19, 30, 31

D.C. Dep’t of Health, Center for Policy,
Planning,
and Epidemiology, State Center for 
Health Statistics, Research and Analysis 
Division, Homicide in the District o f 
Columbia, 1995-2004, (Feb. 1, 2007), 
available a thttp://www.doh.dc. 
gov/doh/lib/doh/services/administration_of 
fices/schs/pdf 5yrs_homicides_1995~2004
(final).pdf............................................................ 28

Mark Duggan, More Guns, More Crime, 109
J. Pol. Econ. 1086 (2001)..................................  29

Erwin Griswold, Phantom Second
Amendment Rights’, Wash. Post, Nov. 4, 
1990............................................................. 12

http://webappa.cdc.gov/sasweb/ncipc/leadc
http://www.childrensdefense.org/gunreport
http://www.doh.dc


xiii

Linda Gunderson, The Financial Costs o f Gun 
Violence, 131 Annals of Internal Medicine 483 
(1999)............................................................  27, 28

Jean Lemaire, The Cost o f Firearm Deaths in the 
United States•' Reduced Life Expectancies and 
Increased Insurance Costs (2005), available at 
http://knowledge.wharton.upenn.edu/papers/1294
.pdf?CFID=48458188&CFTOKEN=83914 
080&jsessionid=a830d9608bc97d6668el...... . 27

Sanford Levinson, The Embarrassing Second
Amendment, 99 Yale L.J. (1989)..............  12, 13

Colin Loftin, et al., Effects o f Restrictive 
Licensing in Handguns on Homicide and 
Suicide in the District o f  Columbia, 325 
New England J. Med. 1615 (1991)............  28, 29

Nat’l Public Radio, D.C. Mayor Addresses 
Blow to Handgun Ban (Mar. 13 2007), 
available at
http-V/www.npr.org/templates/ 
story/story.php?storyId=7867355..................... 28

Lewis Powell, Capital Punishment, Remarks 
Delivered to the Criminal Justice Section,
ABA (Aug. 7, 1988)............................................ 12

President Ronald Reagan’s Statement Upon 
Signing H.R. 3131, 22 Weekly Comp.
Pres. Doc. 1130 (Sept. 1, 1986).....   24

U.S. Dep’t of Justice, Bureau of Justice 
Statistics, Crime Data Brief, Guns and 
Crime:Handgun Victimization, Firearm 
Self-Defense, and Firearm Theft (Apr.

http://knowledge.wharton.upenn.edu/papers/1294


XIV

1994), available at
www.ojp.usdoj.gov/bjs/pub/ascii/hvfsdaft.t
xt....................................................... .................. 26

Reed Williams & Shawna Morrison, Police- 
No Motive Found, Roanoke Times, Apr.
26, 2006....................................................... ....... 20

http://www.ojp.usdoj.gov/bjs/pub/ascii/hvfsdaft.t


1

INTEREST OF AMICUS CURIAE1

The NAACP Legal Defense & Educational Fund, 
Inc. (“LDF’) is a nonprofit corporation chartered by 
the Appellate Division of the New York Supreme 
Court as a legal aid society. LDF’s first Director 
Counsel was Thurgood Marshall. Since its founding, 
LDF has been committed to transforming this 
nation’s promise of equality into reality for all 
Americans, with a particular emphasis on the rights 
of African Americans. See NAACP v. Button, 371 
U.S. 415, 422 (1963) (describing LDF as a ‘“firm’ . . . 
which has a corporate reputation for expertness in 
presenting and arguing the difficult questions of law 
that frequently arise in civil rights litigation”).

In densely populated urban centers like the 
District of Columbia (the “District”), gun violence 
deprives many residents of an equal opportunity to 
live, much less succeed. The effects of gun violence 
on African-American citizens are particularly acute! 
in 2004 alone, all but two of the 137 firearm 
homicide victims in the District were African 
Americans, most of them between the ages of fifteen 
and twenty-nine years old. See The Centers for 
Disease Control and Prevention, WISQAlRS, Leading

1 Counsel of record for all parties received notice of the amicus 
curiae’s intention to file this brief. Letters of consent by the 
parties to the filing of this briefing have been lodged with the 
Clerk of this Court. No counsel for a party authored this brief 
in whole or in part, and no counsel or party made a monetary 
contribution intended to fund the preparation or submission 
of this brief. No person other than amicus curiae, its 
members, or its counsel made a monetary contribution to its 
preparation or submission.



2

Causes o f Death Reports (1999-2004), 
http://webappa.cdc.gov/sasweb/ncipc/leadcaus.html. 
LDF thus has an interest in this case, which raises 
significant issues regarding the authority of locally 
elected officials to enact regulations intended to 
promote public health and safety by reducing gun 
deaths, gun injuries, and gun-related violence.

SUMMARY OF ARGUMENT

The Second Amendment to the United States 
Constitution 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.

U.S. Const, amend. II. Throughout the history of the 
United States, this language has consistently been 
interpreted to permit Congress and the various State 
legislatures to enact regulations governing an 
individual’s possession or use of firearms—including 
absolute prohibitions on particularly dangerous 
categories of firearms. This Court has never 
invalidated such a statute under the Second 
Amendment. Moreover, until this decade, despite 
many opportunities to do so, no federal Court of 
Appeals had ever recognized the existence of an 
individual right under the Second Amendment to 
“keep and bear Arms” for purely private purposes. 
Rather, this Court and the overwhelming majority of 
courts—both State and federal—that have addressed 
the issue have almost unanimously and correctly 
held that the right protected by the Second 
Amendment is one that exists only in the context of

http://webappa.cdc.gov/sasweb/ncipc/leadcaus.html


3

a lawfully organized militia. To hold differently 
now—in the face of precedent, history, and an 
unmistakable public health and safety imperative— 
would constitute a radical and unwarranted 
departure from the jurisprudence of this Court.

Having litigated the cases leading up to and 
including Brown v. Board o f Education, 347 U.S. 483 
(1954), wherein this Court found its earlier 
precedent in Plessy v. Ferguson, 163 U.S. 537 (1896), 
to be wrongly decided and inconsistent with the 
Equal Protection Clause of the Fourteenth 
Amendment, amicus is well aware that there are 
times when this Court must change course and 
depart from precedent, even where that precedent is 
clear and established. Indeed, amicus has 
previously urged this Court to alter or overrule 
precedent and would do so again if it were necessary 
and appropriate.

This case presents no such occasion. The type of 
radical departure from this Court’s Second 
Amendment jurisprudence that is reflected in the 
opinion of the D.C. Circuit is not warranted. 
Although the type, use, cultural significance and 
regulations on the purchase, possession, and use of 
firearms vary from community to community, 
handguns—because they are portable and easy to 
conceal—are uniquely lethal instruments, which are 
involved in the vast majority of firearm violence in 
America. Handgun violence in the District exacts a 
particularly high toll on the District’s African- 
Americah residents. Multiple municipalities, 
including the District, have placed significant 
restrictions on the possession and use of handguns, 
while permitting the registration of other weapons



4

such as shotguns and rifles. Nevertheless, in 
contravention of the almost unanimous authority of 
the State and federal courts nationwide, the D.C. 
Circuit interpreted the Second Amendment to 
invalidate those regulations. See Parker v. District 
o f Columbia, 478 F.3d 370 (D.C. Cir. 2007). The D.C. 
Circuit’s ruling threatens the viability of any 
regulation or prohibition on any particular category 
of firearm, no matter how deadly the weapon, how 
grave a threat it poses to public health and safety, or 
how reasonable the regulation.

This Court should reverse the decision below and 
reaffirm that its consistent and established Second 
Amendment jurisprudence remains firmly in place 
today.

ARGUMENT

I. A Radical Departure from This Court’s Second 
Amendment Jurisprudence Is Not Warranted

Amicus recognizes the importance of principles of 
stare decisis, see, e.g., Planned Parenthood o f  
Southeastern Pa. v. Casey, 505 U.S. 833, 844 (1992), 
but also acknowledges that a departure from prior 
precedent can be warranted under certain 
circumstances, see, e.g., Brown v. Bd. o f Educ. 347 
U.S. 483, 492-93 (1954) (reexamining the meaning of 
the Fourteenth Amendment and overruling Plessy v. 
Ferguson, 163 U.S. 537 (1896), in light of the “full 
development and . . . present place [of public 
education] in American life”). This case does not 
present such circumstances. As summarized by 
Chief Justice Rehnquist in reaffirming this Court’s



5

landmark ruling in Miranda v. Arizona, 384 U.S. 436 
(1966),

While ‘“stare decisis is not an 
inexorable command,”’ State Oil Co. v.
Khan, 522 U.S. 3, 20, 139 L. Ed. 2d 199,
118 S. Ct. 275 (1997) (quoting Payne v. 
Tennessee, 501 U.S. 808, 828, 115 L.
Ed. 2d 720, 111 S. Ct. 2597 (1991)), 
particularly when we are interpreting 
the Constitution, Agostini v. Felton,
521 U.S. 203, 235, 138 L. Ed. 2d 391,
117 S. Ct. 1997 (1997), “even in 
constitutional cases, the doctrine 
carries such persuasive force that we 
have always required a departure from 
precedent to be supported by some 
‘special justification.’” United States v. 
International Business Machines Corp.,
517 U.S. 843, 856, 116 S. Ct. 1793, 135 
L. Ed. 2d 124 (1996) (quoting Payne, 
supra, at 842 (Souter, J., concurring)
(in turn quoting Arizona v. Rumsey,
467 U.S. 203, 212, 81 L. Ed. 2d 164, 104 
S. Ct. 2305 (1984))).

Dickerson v. United States, 530 U.S. 428, 443 (2000). 
See also John R. Sand & Gravel Co. v. United 
States, No. 06-1164, slip op. at 9 (Jan. 8, 2008) (“To 
overturn a decision settling one such matter simply 
because we might believe that decision is no longer 
‘right’ would inevitably reflect a willingness to 
reconsider others. And that willingness would itself 
threaten to substitute disruption, confusion, and 
uncertainty for necessary legal stability. We have



6

not found here any factors that might overcome 
these considerations.”).

No such “special justification” for departing from 
well-established precedent has been demonstrated 
here. The established understanding of the Second 
Amendment has not proven unworkable? rather, 
restrictions on certain categories of firearms are 
prevalent throughout the country and have been in 
place for decades. Furthermore, there have been no 
evolving principles of law that have rendered the 
established understanding of the Second 
Amendment “no more than a remnant of abandoned 
doctrine.” Casey, 505 U.S. at 855? see also 
Dickerson, 530 U.S. at 443 (acknowledging that 
stare decisis is not controlling where “subsequent 
cases have undermined [a precedent’s] doctrinal 
underpinnings”). Nor have there been fundamental 
shifts in any facts that would justify abandoning 
precedent. See Leegin Creative Leather Prods., Inc. 
v. PSKS, Inc., 127 S.Ct. 2705, 2721-25 (2007) 
(Kennedy, J.) (reversing Dr. Miles Med. Co. v. John 
D. Park & Sons Co., 220 U.S. 373 (1911) in light of 
new “widespread agreement” among economists); 
Casey, 505 U.S. at 854-55? Brown, 347 U.S. at 492- 
93. If anything, the contemporary epidemic of 
handgun violence in urban areas suggests that 
arguments in favor of a radical reinterpretation of 
the Second Amendment should be rejected.

A. The Second Amendment Does not Protect an 
Individual Right to “Keep and Bear Arms” for 
Purely Private Purposes

For over two hundred years, no federal court 
(without being reversed) has ever found that a



7

statute is facially invalid under the Second 
Amendment. This Court has never done so, and 
with the exception of the court below and the Fifth 
Circuit in United States v. Emerson, 270 F.3d 203 
(5th Cir. 2001), the federal Courts of Appeals and 
the majority of the State appellate courts have been 
consistent with respect to the Second Amendment: it 
does not protect an individual right to possess or use 
firearms outside of the context of a lawfully 
organized militia. Indeed, the text of the Second 
Amendment itself does not provide for such a right 
(see Petitioners’ Br. at 17-21), and for the Court to 
recognize an individual right to “keep and bear 
Arms”2 would represent a radical departure from the 
consistent and long-established understanding of the 
Second Amendment.

This Court has never invalidated a challenged 
firearm restriction on Second Amendment grounds. 
See Presser v. Illinois, 116 U.S. 252, 265 (1886) 
(holding that the Second Amendment “is a limitation 
only upon the power of Congress and the National 
government, and not upon that of the States”); Miller 
v. Texas, 153 U.S. 535, 538 (1894) (“[I]t is well 
settled that the restrictions of these amendments 
operate only on the Federal power, and have no 
reference whatsoever to proceedings in state 
courts.”); Maxwell v. Dow, 176 U.S. 581, 597 (1900) 
(citing Presser)) Twining v. New Jersey, 211 U.S. 78,

2 Although we will not repeat petitioners’ and other amicis 
extensive analysis of the Second Amendment’s text, amicus 
agrees that the phrase “keep and bear Arms” must be read in 
the context of the preceding clause addressing a “well 
regulated Militia,” see  Petitioners’ Br. at 17-21, and cannot be 
fairly read to recognize the right of an individual to “keep and 
bear Arms” for purely private purposes.



8

98 (1908) (same). Similarly, this Court has 
consistently held that specific restrictions on the 
ability of individuals to possess and use guns are 
permissible. See, e.g., Robertson v. Baldwin, 165 
U.S. 275, 281-82 (1897) (“the right of the people to 
keep and bear arms (article 2) is not infringed by 
laws prohibiting the carrying of concealed weapons”); 
Lewis v. United States, 445 U.S. 55, 65 n.8 (1980) 
(law prohibiting felons from possessing guns does 
not “trench upon any constitutionally protected 
liberties”).

This Court could not reinterpret the Second 
Amendment to protect an individual right to “keep 
and bear Arms” for purely private uses without 
overruling United States v. Miller, 307 U.S. 174 
(1939). Miller clearly states that the Second 
Amendment’s guarantee of the right to bear arms 
can be understood only in the context of the militia:

The Constitution as originally adopted 
granted to the Congress the power—”To 
provide for calling forth the Militia to 
execute the Laws of the Union, 
suppress Insurrections and repel 
Invasions! 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.” With obvious 
purpose to assure the continuation and 
render possible the effectiveness o f such



9

forces the declaration and guarantee o f 
the Second Amendment were made. It 
must be interpreted and applied with 
that end in view.

Id. at 178 (emphasis added). Under Miller, any 
possession or use of a firearm not in that context 
would fall outside the scope of the Second 
Amendment.

Notably, even the D.C. Circuit recognized that 
the Amendment must be construed in light of its 
first clause, which explicitly refers to a “well 
regulated Militia.” The D.C. Circuit reasoned that 
“[o]nly ‘Arms’ whose ‘use or possession . . . has some 
reasonable relationship to the preservation or 
efficiency of a well regulated militia’ would qualify 
for protection” under the Second Amendment. 
Parker, 478 F.3d at 394 (quoting Miller, 307 U.S. at 
177).3 Under this interpretation of Miller, for an 
individual to assert successfully a Second 
Amendment right, he or she right need not 
participate in an organized militia, but the firearm 
that he or she “keep[s] and hearts]” must be of the 
type that could be used in a militia. This represents 
a recognition that the concept of the militia places at 
least some substantive limits on the right to “keep 
and bear Arms” set forth in the Second Amendment.

3 This interpretation of M iller was also utilized by the only 
other federal Court of Appeals to conclude that the Second 
Amendment guarantees an individual right to possess and 
use firearms for purely private purposes, the Fifth Circuit in 
Emerson, supra, 270 F.3d at 224 (arguing that M iller’s ruling 
was premised on the notion that a sawed-off shotgun “is n o t .. 
. one of the ‘Arms’ which the Second Amendment prohibits 
infringement of the right of the people to keep and bear”).



10

Once this concession is made, the question is no 
longer whether the concept of a “militia” places any 
limits on the “right of the people to keep and bear 
Arms,” but rather how  it limits that right. Is the 
right guaranteed as to the manner in which the 
people “keep and bear Arms” (i.e., only in connection 
with the activities of a militia) or is the right related 
to the types of “Arms” that one may “keep” or “bear” 
(i.e., only those firearms that could actually be used 
in a militia)? As explained by the First Circuit only 
a few years after the Court rendered its ruling in 
Miller, the latter interpretation, which is the basis of 
the opinion below, would grant a “right” to the 
“possession or use by private persons not present or 
prospective members of any military unit, of 
distinctly military arms, such as machine guns, 
trench mortars, anti-tank or anti-aircraft guns,” 
while permitting the government to regulate only 
those “weapons which can be classed as antiques or 
curiosities.” Cases v. United States, 131 F.2d 916, 
922 (1st Cir. 1942).

The drafters of the Second Amendment surely did 
not intend to protect an individual’s right to “keep 
and bear” only the deadliest weapons technologically 
possible in a given era. And, indeed, the only 
reasonable interpretation of Miller is that it is just 
the nature of the “possession or use” of a weapon, not 
the character of the weapon itself, that must be 
related to a militia in order for Second Amendment 
rights to attach. Miller, 307 U.S. at 178. The D.C. 
Circuit has misinterpreted the case.

The Court’s understanding of the rights conferred 
by the Second Amendment, as reflected in Miller,



11

has remained fairly constant over time, even though 
the Court has not had a more recent occasion to 
construe the Amendment itself. See, e.g., Lewis, 445 
U.S. at 65 n.S (“[Llegislative restrictions on the use 
of firearms are neither based upon constitutionally 
suspect criteria, nor do they trench upon any 
constitutionally protected liberties.” (citing Miller, 
307 U.S. at 178)); Adams v. Williams, 407 U.S. 143, 
150 (1972) (Douglas, J., dissenting) (“There is no 
reason why all pistols should not be barred to 
everyone except the police.”); United States v. Lopez, 
514 U.S. 549, 603 (1995) (Stevens, J. dissenting) 
(“Congress’ power to regulate commerce in firearms 
includes the power to prohibit possession of guns at 
any location because of their potentially harmful 
use. . . .”).4

Other statements by former members of this 
Court support the same conclusion. In an interview 
after his retirement from the bench, Chief Justice 
Burger harshly criticized the argument that the 
Second Amendment recognizes an individual right to 
possess or use firearms for purely personal purposes, 
characterizing that argument as

one o f the greatest pieces o f fraud, I  
repeat the word “fraud,” on the 
American public by special interest 
groups that I’ve seen in my lifetime.

4 The majority opinion in Lopez appeared also to recognize that 
the federal firearm regulation at issue (the Gun Free School 
Zones Act, 18 U.S.C. § 922(q) (1990)) would have been within 
congressional authority had there been proven some connection 
between the regulated conduct and interstate commerce. See 
514 U.S. at 559-61.



12

The real purpose of the Second 
Amendment was to ensure that state 
armies—the militia—would be 
maintained for the defense of the state.

Warren E. Burger, The Right to Bear Arms, Parade 
Mag., Jan. 14, 1990, at 4, quoted in Silveira v. 
Lockyer, 312 F.3d 1052, 1063 (9th Cir. 2002) 
(emphasis added). Similarly, Justice Powell said in 
a speech before the American Bar Association^ 
“ [w]ith respect to handguns,” in contrast “to sporting 
rifles and shotguns,” it “is not easy to understand 
why the Second Amendment, or the notion of liberty, 
should be viewed as creating a right to own and 
carry a weapon that contributes so directly to the 
shocking number of murders in our society.” Lewis 
Powell, Capital Punishment, Remarks Delivered to 
the Criminal Justice Section, ABA 11 (Aug. 7, 1988), 
quoted in Sanford Levinson, The Embarrassing 
Second Amendment, 99 Yale L.J. 637, 655 (1989).5

Although these statements do not carry the 
weight of precedent, they illustrate how radical the 
position taken by the D.C. Circuit truly is. A robust 
Second Amendment right to “keep and bear Arms” 
for purely private purposes has never been taken 
seriously by any majority of the members of the 
Court. Nor has the Court ever invalidated a 
restriction on firearms under the Second 
Amendment. To do so now would represent a radical

5 Erwin Griswold, former United States Solicitor General and 
dean of Harvard Law School has written, “[T]hat the Second 
Amendment poses no barrier to strong gun laws is perhaps 
the most well-settled proposition in American Constitutional 
law.” Erwin Griswold, Phantom Second Amendment 
“Rights”, Wash. Post, Nov. 4, 1990, at C7.



13

and unwarranted departure from the Court’s Second 
Amendment jurisprudence.

Significantly, the Court’s Second Amendment 
jurisprudence has been consistently and effectively 
applied by both lower federal courts and State courts 
of last resort. The First,6 Third,7 Fourth,8 Sixth,9

6 In Cases, 131 F.2d at 923, the First Circuit, focusing on the 
Second Amendment’s first clause, rejected a criminal 
defendant’s Second Amendment claim on the grounds that the 
defendant had produced no evidence that he “was or ever had 
been a member of any military organization” and that he 
acted “without any thought or intention of contributing to the 
efficiency of the well regulated militia .. . .”
7 In United States v. Rybar, 103 F.3d 273, 286 (3d Cir. 1996), 
the Third Circuit rejected a criminal defendant’s argument 
that, because he was associated with an informally organized 
militia, his possession of a machine gun was protected by the 
Second Amendment. Then-Judge Alito dissented from the 
opinion, but only on the grounds that a federal prohibition on 
machine guns exceeded congressional authority under the 
Commerce Clause. See id. at 292 (Alito, J., dissenting). 
Then-Judge Alito observed that he “would view this case 
differently if Congress . . . had made a finding that intrastate 
machine gun possession, by facilitating the commission of 
certain crimes, has a substantial effect on interstate 
commerce.” Id.
8 In Love v. Pepersack, 47 F.3d 120, 124 (4th Cir. 1995), the 
Fourth Circuit, relying on the first clause of the Second 
Amendment, rejected a Second Amendment claim brought by 
a citizen who had been denied an application to purchase a 
handgun. The Fourth Circuit concluded that “the Second 
Amendment preserves a collective, rather than individual 
right” that “must bear a reasonable relationship to the 
preservation or efficiency of a ‘well-regulated militia’” 
(quoting United States v. Johnson, 497 F.2d 548, 550 (4th Cir. 
1974) (in turn quoting Miller, 307 U.S. at 178)).
9 In United States v. Warin, 530 F.2d 103, 106 (6th Cir. 1976), 
the Sixth Circuit rejected a Second Amendment claim on the 
grounds that the Second Amendment “applies only to the



14

Seventh,10 Eighth,11 Ninth,12 Tenth,13 and Eleventh 
Circuits14 have all concluded that the Second

right of the State to maintain a militia and not the 
individual’s right to bear arms” (quoting Stevens v. United 
States, 440 F.2d 144, 149 (6th Cir. 1971)).
10 In Gillespie v. City o f  Indianapolis, 185 F.3d 693, 710 (7th 
Cir. 1999), the Seventh Circuit rejected a Second Amendment 
challenge to 18 U.S.C. § 922 (g)(9), which prohibits 
individuals convicted of domestic violence from owning 
firearms, holding that the Second Amendment “inures not to 
the individual but to the people collectively, its reach 
extending so far as is necessary to protect their common 
interest in protection by a militia.”
11 In United States v. Hale, 978 F.2d 1016, 1020 (8th Cir. 
1992), the Eighth Circuit did not explicitly hold that the 
Second Amendment does not protect an individual right, but 
held that, regardless of whether such a right exists, it cannot 
apply where the defendant’s possession and use of a machine 
gun was not “reasonably related to the preservation of a well 
regulated militia” because the purpose of the Amendment was 
to restrain federal interference with the State militias. Like 
the Third Circuit in Rybar, the Eighth Circuit ruled that 
membership in an informal private militia was insufficient to 
trigger any protection under the Second Amendment. Id.
12 In Silveira v. Lockyer, 312 F.3d 1092 (9th Cir. 2002), the 
Ninth Circuit, relying on an analysis of the text of the Second 
Amendment, the historical context of ratification, and 
relevant Supreme Court precedent, rejected the notion that 
the Second Amendment protects an individual right to 
possess or use firearms.
13 In United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 
1977), the Tenth Circuit upheld a conviction for the knowing 
possession of an unlicensed machine gun, on the grounds that 
the defendant had shown no connection to the State militia. 
The Tenth Circuit based its analysis on the purpose of the 
Amendment, which it concluded was to preserve the 
effectiveness and assure the continuation of the state militia. 
The Tenth Circuit rejected the argument that, because 
“militia” under Kansas law was defined to include all able- 
bodied men between the ages of twenty-one and forty-five,



15

Amendment does not refer to an individual right to 
“keep and bear Arms” for purely private purposes.* 14 15 
Similarly, the majority of State appellate courts (and 
the courts of the District itself) considering this 
question have also concluded that there is no right to 
“keep and bear Arms” outside of the context of the 
activity of a lawfully organized militia.16 Moreover, 
the vast majority of State appellate courts 
considering the question of whether the term “bear

defendant was effectively a member of a “militia” for Second 
Amendment purposes. Id.
14 In United States v. Wright, 117 F.3d 1265, 1272 ( l l th Cir. 
1997), the Eleventh Circuit rejected a criminal defendant’s 
Second Amendment claim on the grounds that he failed to 
demonstrate “a reasonable relationship between his 
possession of . . . machineguns and pipe bombs and ‘the 
preservation or efficiency of a well regulated militia’” (quoting 
Miller, 307 U.S. at 177). As in Oakes, the Court rejected an 
argument based on the definition of “militia” under State law 
(in this case, under Georgia law). Id. at 1272-73.
15 The Second Circuit has not directly addressed the issue of 
whether the Second Amendment protects an individual right 
to possess or use firearms. In United States v. Toner, 728 
F.2d 115, 128-29 (2d Cir. 1984), however, the Second Circuit, 
citing Miller, held that firearm restrictions are subject only to 
rational basis review and, applying that standard, upheld a 
statute that prohibited gun ownership by undocumented 
aliens.
16 See, e.g., Commonwealth v. Davis, 343 N.E.2d 847, 850 
(Mass. 1976); In re Atkinson, 291 N.W.2d 396, 398 n.l (Minn. 
1980); Harris v. State, 432 P.2d 929, 930 (Nev. 1967); Burton 
v. Sills, 248 A.2d 521, 526 (N.J. 1968); In re Cassidy, 51 
N.Y.S.2d 202, 205 (N.Y. App. Div. 1944); State v. Fennell, 382 
S.E.2d 231, 232 (N.C. Ct. App. 1989); M osher v. City o f  
Dayton, 358 N.E.2d 540, 543 (Ohio 1976); M asters v. State, 
653 S.W.2d 944, 945 (Tex. App. 1983); State v. Vlacil, 645 
P.2d 677, 679-80 (Utah 1982); Sandidge v. United States, 520 
A.2d 1057, 1058 (D.C. 1987); Kalodimos v. Vill. o f  Morton 
Grove, 470 N.E.2d 266, 269 (111. 1984).



16

arms” can refer to non-military uses of firearms have 
concluded that it does not.17

To be sure, as the D.C. Circuit noted, several 
State appellate courts have referred to an individual 
“right” to possess and use firearms, but those

17 See, e.g., Aym ette v. State, 21 Term. (2 Hum.) 154 (1840) 
(stating that “ [a] man in pursuit of deer, elk and buffaloes, 
[sic] might carry his rifle every day, for forty years, and, yet, 
it would never be said of him, that he had borne arms,” and 
ruling that with the phrase “keep and bear arms,” “ [n]o 
private defence was contemplated”) (emphasis in original); 
English v. State, 35 Tex. 473, 476 (1872) (“The word ‘arms’ in 
the connection we find it in the Constitution of the United 
States refers to the arms of the militiaman or soldier, and the 
word is used in its military sense.”); Hill v. Georgia, 53 Ga. 
472, 475 (1874) (“[T]he language of the constitution of this 
state, as well as that of the United States, guarantees only 
the right to keep and bear the ‘arms’ necessary for a 
militiaman.”); Fife v. State, 31 Ark. 455, 459 (1876) (defining 
“arms” as “weapons [that] are adapted to the ends indicated 
above, that is, the efficiency of the citizen as a soldier, when 
called on to make good the defense of a free people,” and 
upholding a prohibition on “any pistol of any kind whatever” 
as consistent with “the constitutional right of the citizens of 
the State to keep and bear arms for their common defense.”); 
State v. Workman, 35 W. Va. 367 (1891) (“[I]n regard to the 
kind of arms referred to in the [Second A]mendment, it must 
be held to refer to the weapons of warfare to be used by the 
militia.”); City o f  Salina v. Blaksley, 83 P. 619, 620 (Kan. 
1905) (observing that it is “apparent from the [S]econd 
[A]mendment to the federal [Constitution” that the right to 
bear arms applies only to “a member of a well-regulated 
militia, or some other military organization provided for by 
law”); In re  Ramirez, 193 Cal. 633, 651-52 (1924) (“[T]he right 
to keep and bear arms . . . refers only to the bearing of arms 
by the citizens in the defense of a common cause.”); cf. Ex 
parte Thomas, 97 P. 260 (Okla. 1908) (interpreting Oklahoma 
Constitution) (“[T]he arms, the right to keep which is secured, 
are such as are usually employed in civilized warfare.”).



17

decisions are in the minority, generally rely on State 
constitutional provisions, and contain no detailed 
analysis of the Second Amendment. Most important, 
none of those cases found a statute facially invalid 
for violating the Second Amendment.18 Until the 
Fifth Circuit’s 2001 ruling in Emerson, no federal 
court in this nation’s history had ruled (without 
being reversed) that the Second Amendment protects

18 The D.C. Circuit discusses decisions in seven States that 
the D.C. Circuit interprets as recognizing an individual right 
to “keep and bear Arms.” But all of the cases rely primarily 
on the various States’ own constitutions, and none of the 
cases in question actually discuss or analyze the Second 
Amendment at any length. See Brewer v. Commonwealth, 
206 S.W.3d 343, 347 (Ky. 2006); State v. Williams, 148 P.3d 
993, 998 (Wash. 2006); Rohrbaugh v. State, 607 S.E.2d 404, 
412-13 (W. Va. 2004); State v. Blanchard, 776 So. 2d 1165, 
1168 (La. 2001); Stillwell v. Stillwell, 2001 Tenn. App. LEXIS 
562, at *10-12 (2001); State v. Anderson, 2000 Tenn. Crim. 
App. LEXIS 60, at *19 n.3 (2000); Hilberg v. Woolworth, 761 
P.2d 236, 240 (Colo. 1988); State v. Nickerson, 247 P.2d 188, 
192-93 (Mont. 1952). Furthermore, three of these cases 
expressly acknowledged the authority of the State to restrict 
an individual’s right to possess and use firearms in order to 
promote public health and welfare. See Rohrbaugh, 607 
S.E.2d at 413; Blanchard, 776 So. 2d at 1168; Hilberg, 761 
P.2d at 240. A fourth State appears to take such restrictions 
for granted. See Williams, 148 P.3d at 998. Of the eight 
decisions cited by the D.C. Circuit, only one decision actually 
overturned a law or reversed a judgment on the basis of an 
individual right to “keep and bear Arms.” See Stillwell, 2001 
Tenn. App. LEXIS 562, at *10-12. That unpublished decision, 
in which the court reversed a family court order forbidding a 
father to carry weapons while visiting his children, relies 
entirely on State law and State precedent. See id. Although 
the court mentions the Second Amendment in passing, the 
court does not analyze or discuss it. See id. In sum, 
therefore, the D.C. Circuit mischaracterizes the State 
precedent which it purports provides authority for an 
independent right to bear arms.



18

an individual right to the “keep and bear Arms” for 
purely private purposes. This Court should not 
lightly disregard the accumulated wisdom of two 
centuries of jurists interpreting the Second 
Amendment and ignore the significance of having 
clarity in this area of the law.

B. The Clear and Established Understanding of 
the Second Amendment Should Not Be 
Disturbed

1. Abandoning the clear and established 
understanding of the Second Amendment 
would produce substantial upheaval in the 
manner in which firearms have been 
regulated nationwide.

A recognition by this Court of an individual right 
to “keep and bear Arms” for purely private purposes 
would represent more than a mere doctrinal shift; as 
a practical matter, it would appear to require a 
massive change in the way firearms have been 
regulated for centuries. From pre-colonial times in 
England until today, reasonable regulations have 
been permitted on an individual’s ability to obtain, 
possess, and use firearms. See Petitioners’ Br. at 42- 
43.19 The District itself has a history of firearms

19 Some early firearm regulations were facially discriminatory 
or were enacted with racially discriminatory intent. See 
Robert J. Cottrol & Raymond T. Diamond, The Second 
Amendment: Toward an Afro-Americanist Reconsideration, 
80 Geo. L.J. 309 (1991). Neither is the case with respect to 
the District’s handgun ban. Furthermore, as a general 
principle, we dispute the contention that regulations on 
firearms do not serve the interests of many African-American 
communities, as discussed infra, pp. 25-33. To the extent that



19

regulations dating back to 1801. See id. at 3-4, 
citing, inter alia, Town of Georgetown Ordinance of 
Oct. 24, 1801; Act of the Corporation of the City of 
Washington of Dec. 9, 1809. The principal
characteristic of the District’s firearms legislation 
that is being challenged in this case—a rule that 
prohibits handguns while permitting shotguns and 
rifles {see D.C. Code § 7-2502.02)—was enacted over 
30 years ago, in 1976, after the District Council 
received substantial evidence that handguns were 
disproportionately linked to violent and deadly 
crime, and posed unique risks in an urban setting. 
See PAl01a-04a, 112a. In sum, the District’s 
handgun regulations are reasonable, passed by a 
legislature, in line with long-standing historical 
practices and Supreme Court precedents, and 
recognizes the unique circumstances posed by the 
link between the District’s high crime rate and the 
prevalence of handguns.20

any particular regulation was or were to be enacted with 
racially discriminatory intent, that regulation would of course 
be subject to challenge under the Equal Protection Clause of 
the Fourteenth Amendment, or the Due Process Clause of the 
Fifth Amendment. See, infra, pp. 30-32.
20 Although the D.C. Circuit purported to hold that 
“reasonable restrictions” on firearms are permissible under 
the Second Amendment, Parker, 478 F.3d at 399, the 
examples of “reasonable restrictions” recited in the opinion 
(and analogized to reasonable time, place and manner 
restrictions under the First Amendment) are trivial at best, 
e.g., prohibitions on carrying weapons “when under the 
influence of intoxicating drink, or [bringing a firearm] to a 
church. . . .” Id. (quoting State v. Kerner, 107 S.E. 222, 225 
(N.C. 1921)). The “reasonable restrictions” described by the 
majority opinion would apparently not include prohibitions 
for even obviously dangerous weapons such as machine guns 
or bazookas. The ability to impose “reasonable restrictions,” 
as that term was employed by the D.C. Circuit, therefore,



20

Regulations restricting or prohibiting entirely the 
possession and use of certain types of weapons are 
not uncommon. Although the constitutionality of 
handgun prohibitions by non-federal actors is not 
presented on this appeal, at least ten municipalities, 
including Chicago and Oakland, have handgun 
regulations comparable to that of the District.21 In 
addition to these municipalities, nine States, Puerto 
Rico, and at least eleven other municipalities have 
enacted bans on “assault weapons” or semi­
automatic weapons.22 Eighteen States, the District

would allow little or no discretion to legislators in trying to 
address serious problems of health and safety. If, on the 
other hand, the term “reasonable restrictions” is meant to 
encompass bans on uniquely dangerous categories of 
weapons, then it is difficult to imagine why modern 
handguns, given their lethal nature—as demonstrated, for 
instance, in the recent Virginia Tech shootings in which a 
single individual wielding two handguns discharged over 170 
rounds in nine minutes, killing thirty people and wounding 
twenty-five more, see  Reed Williams & Shawna Morrison, 
Police• No M otive Found' Roanoke Times, April 26, 2006, at 
A1—should be treated any differently from the types of 
weapons discussed above.
21 See, e.g., Oakland, CA Municipal & Planning Codes §§ 
9.36.400 -  9.36.440 (2007) (compact handguns); City of 
Chicago, IL Municipal Code §§ 8-20-030(k), 8-20-40, 8-20-50 
(2007); City Code of the City of Evanston, IL § 9-8-2 (2007); 
Highland Park, IL City Code §§ 134.001 -  134.099 (2007); 
Morton Grove, IL Village Code §§ 6-2*1 — 6-2-3 (2007); Oak 
Park Village Code §§ 27-1-1, 27-2-1 (2007); Winnetka, IL 
Village Code § 9.12.020 (2007); Village of Wilmette, IL Code of 
Ordinances § 12-24 (2007); Cambridge Municipal Code §§ 
9.16.20 -  9.16.50 (2006); Toledo, OH Municipal Code §§ 
549.01(c), 549.25 (2007) (certain handguns).
22 See Cal. Penal Law §§ 12275-12289.5 (2007); Conn. Gen. 
Stat. §§ 53-202a-j, m-o (2007); Haw. Rev. Stat. §§ 134-1, 134- 
4(e) (2007); Md. Code §§ 4-301 -  4-303 (2007); Mass. Gen.



2 1

of Columbia, Puerto Rico, and the federal 
government have prohibited armor-piercing or “cop- 
killer” bullets.* 16 * * * * * * 23 And numerous other States and the 
federal government have adopted categorical bans on 
other types of more potent weaponry, such as

Laws ch. 140 §§ 121, 131M (2007); N.J. Stat. Ann. §§ 2C-' 39- 
l(w), 39-5(f), 2C: 58-12 (2007); N.Y. Penal Law §§ 265.00(21- 
22), 265.10, 265.20(16) (2007); P.R. Laws Ann. tit. 25, § 
456(m) (2005); Aurora, IL Code of Ordinances, § 29-49 (2007); 
City of Chicago, IL Municipal Code §§ 8-20-030(h), 8-20-40, 8~ 
20-50 (2006); South Bend, IN Code of Ordinances §§ 13-94 -  
13-99 (2007); Code of the City of Albany, NY §§ 193-13 -  193-
16 (2007); Code of the City of Buffalo, NY §§ 180-l(b), (f)
(2007) ; Administrative Code of the City of New York, NY §§
10-301(16), 10-303.1 (2007); Code of the City of Rochester,
NY §§ 47-5(b), (f) (2007); Cincinnati, OH Administrative Code
§ 708-37 (2007); Codified Ordinances of Cleveland, OH §§
628.01-628.99 (2006); Columbus City, OH Codes §§
2323.11(G)(1), 2323.31 (2007); Code of Ordinances of the City 
of Dayton, OH §§ 138.24 -  138.99 (2006); Toledo, OH 
Municipal Code §§ 549.0l(x), 549.23, 549.25 (2007).
23 See, e.g., 18 U.S.C. §§ 92l(a)(l7)(B), 922(a)(7)-(8), 929
(2008) ; Cal. Penal Law § 12320 (2007); Conn. Gen. Stat. § 53- 
2021 (2007); D.C. Code §§ 7-2501.0l(l3a), 7-2505.02 (2007); 
Fla. Stat. § 790.31 (2007); Haw. Rev. Stat. § 134-8(a) (2007); 
720 111. Comp. Stat. § 5/24-2.1 (2007); Ind. Code § 35-47-5-11 
(2007); Ky. Rev. Stat. §§ 237.060(7), 237.080 (2007); La. Rev. 
Stat. §§ 40:1810-12 (2007); Me. Rev, Stat. tit. 17-A, § 1056 
(2007); Mich. Comp. Laws § 750.224c (2007); Miss. Code § 97- 
37-31 (2007); N.J. Rev. Stat. § 2C:39-3(f) (2007); N.Y. Penal 
Law §§ 265.00(18), 265.01(8); Okla. Stat. Ann. tit. 21 § 
1289.19 (2007); Or. Rev. Stat. § 166.350 (2005); 18 Pa. Cons. 
Stat. § 6121 (2007); P.R. Laws Ann. tit. 25, § 455(j), 458(j), 
459a (2005) ; R.I. Gen. Laws §11-47-20.1 (2007); Tx. Penal 
Code §§ 46.01(12), 46.05 (7) (2007). Wilmington, Delaware 
has prohibited armor-piercing bullets, although Delaware 
does not have a State-wide ban. See Wilmington, DE Code of 
Ordinances § 36-156 (2007).



22

machine guns, rocket launchers, and chemical and 
biological weapons.24

If the reasoning of the D.C. Circuit replaces the 
current state of the law, however, its effects could 
extend well beyond handgun regulations. The D.C. 
Circuit held that the District’s handgun ban was 
unconstitutional because the Second Amendment 
guarantees an individual “right” to “keep and bear 
Arms,” which includes any weapons that are in 
“common use” in a militia, or are the “lineal 
descendent[s]” of weapons that were in “common 
use” by militias during colonial times. Parker, 478 
F.3d at 398. Ignoring the extent to which handguns 
are used today in the commission of violent crime, 
and absent any factual support, the D.C. Circuit 
concluded that “there can be no question” that 
handguns are among the type of “Arms” in “common 
use” today, and therefore that an individual’s right 
to “keep and bear” handguns is protected under the 
Second Amendment. Id. at 397*98. The majority 
then adopted a categorical rule that any prohibition 
on the possession of any type of protected “Arm” is 
per se unconstitutional, without regard to the 
reasonableness of the regulatory scheme as a whole 
or the lethal nature of a particular class of weapons • 
“Once it is determined . . . that handguns are ‘Arms’ 
referred to in the Second Amendment, it is not open 
to the District to ban them.” Id. at 400.

24 See, e.g., 18 U.S.C. 922(o) (1948) (machine guns); Tx. Penal 
Code §§ 46.01(9), 46.05(2) (2007) (machine guns); Ga. Code §§ 
16-11-120 -  16-11-125 (2007) (rocket launchers); Col. Rev. 
Stat. § 18-12-109 (2007) (chemical, biological, and radiological 
weapons); S.C. Code § 16-23-710 (2006) (nuclear weapons).



23

A Second Amendment jurisprudence where the 
right to “keep and bear Arms” is based on whether 
the weapon is a “lineal descendant” from Colonial 
weaponry would be entirely unworkable and 
unprincipled. The logic of the D.C. Circuit’s rule 
would render unconstitutional not only regulations 
on the possession or use of handguns but also bans 
on other extremely dangerous categories of weapons, 
such as assault weapons, armor-piercing bullets, 
machine guns, and rocket launchers, assuming that 
a “lineal descent” can be demonstrated at trial. If 
today’s lethal handguns are thought of as the “lineal 
descendents” of revolutionary-era “single-shot 
pistols,” id. at 398, then it would follow that 
automatic or semi-automatic rifles are the “lineal 
descendents” of the revolutionary-era musket, and 
that armor-piercing bullets are mere “upgrades” over 
revolutionary-era bullets.

Equally unhelpful is the D.C. Circuit’s reliance on 
the fact that handguns “are also in ‘common use’ 
today.” Id. The scope of constitutional rights should 
not depend on the vagaries of ownership trends, and 
particularly not of those engaged in crime. Of 
greater concern is the fact that the D.C. Circuit, 
while providing no test for determining when a 
weapon is in “common use,” also provided no limits 
whatsoever, implying that the Constitution protects 
an individual’s inalienable right to “keep and bear” 
even “distinctly military arms.” Cases, 131 F.2d at 
922.

In holding that the Constitution does not permit 
any prohibition on particular categories of “Arms” in 
“common use,” no matter how dangerous, the D.C. 
Circuit adopted an unnecessarily radical and



24

absolutist position. This position has never been 
taken seriously by policymakers because there are 
sound, common-sense bases for prohibiting the 
private use of certain types of weapons. For 
example, as President Reagan stated upon signing 
into law the original federal prohibition on armor­
piercing bullets,

H.R. 3132 [will] ban the production or 
importation of the so-called “cop-killer 
bullets,” which pose an unreasonable 
threat to law enforcement officers who 
use soft body armor. This bill . . . 
recognizes that certain forms of 
ammunition have no legitimate 
sporting, recreational, or self-defense 
use and thus should be prohibited.
Such action is long-overdue.

President Ronald Reagan’s Statement Upon Signing
H. R. 3132, 22 Weekly Comp. Pres. Doc. 1130 (Sept.
I, 1986). A per se rule barring prohibitions on 
essentially any category of firearms, regardless of 
the scope of the regulation, is not compelled by the 
Second Amendment or common sense. Abandoning 
this Court’s clear and established understanding of 
Second Amendment jurisprudence would wreak 
havoc.



25

2. Abandoning the clear and established 
understanding of the Second Amendment 
unduly limits the ability of States and 
municipalities struggling to address the 
problem of gun violence, a problem of 
particular interest to this nation’s African- 
American community

Firearm regulations like those of the District are 
one piece of a much larger puzzle—-how to address 
the unacceptable levels of injuries and fatalities from 
gun violence in many communities across the nation. 
The fact that local firearm regulations alone do not 
solve this puzzle does not mean that such 
regulations have no place at all in the fight to ensure 
the safety of our nation’s residents. States and 
localities must have flexibility to assess their public 
health and safety needs, and to determine the best 
means of achieving them. Accordingly, the degree of 
gun regulation may vary from place to place. Under 
these circumstances, the lower court’s radical 
departure from this Court’s clear and established 
Second Amendment jurisprudence should be 
reversed.

Legislatures enact firearm regulations to reduce 
crime and save lives threatened by the vexing 
problem of gun violence. African Americans, 
especially those who are young, are at a much 
greater risk of sustaining injuries or dying from 
gunshot wounds. The number of African-American 
children and teenagers killed by gunfire since 1979 
is more than ten times the number of African- 
American citizens of all ages lynched throughout 
American history. See Children’s Defense Fund, 
Protect Children, Not Guns 1 (2007), available at



26

www.childrensdefense.org/gunreport. Firearm
homicide is the leading cause of death for fifteen to 
thirty-four year-old African Americans. See The 
Centers for Disease Control and Prevention, 
WISQARS, Leading Causes o f Death Reports (1999- 
2004), http://webappa.cdc.gov/sasweb/ncipc/lead 
caus.html. Although African Americans comprise 
only thirteen percent of the United States 
population, African Americans suffered almost 
twenty-five percent of all firearm deaths and fifty- 
three percent of all firearm homicides during the 
years 1999 to 2004. See The Centers for Disease 
Control, WISQARS Injury Mortality Reports (1999- 
2004), http://webappa.cdc.gov/sasweb/ncipc/mortrate 
10_sy.html.

With respect to handguns specifically, African 
Americans again suffer disproportionately. From 
1987 to 1992, African-American males were victims 
of handgun crimes at a rate of 14.2 per 1,000 persons 
compared to a rate of 3.7 per 1,000 for white males. 
See U.S. Dep’t of Justice, Bureau of Justice 
Statistics, Crime Data Brief, Guns and Crime- 
Handgun Victimization, Firearm Self-Defense, and 
Firearm Theft (Apr. 1994), available at www.ojp. 
usdoj.gov/bjs/pub/ascii/hvfsdaft.txt. During the same 
period, African-American women were victims of gun 
violence at a rate nearly four times higher than 
white women. See id. Overall, African-American 
males between sixteen and nineteen years old had 
the highest rate of handgun crime victimization, at a 
rate of forty per 1,000 persons, or four times that of 
their white counterparts. See id.

Gun violence also adds significant direct and 
indirect costs to America’s criminal justice and

http://www.childrensdefense.org/gunreport
http://webappa.cdc.gov/sasweb/ncipc/lead
http://webappa.cdc.gov/sasweb/ncipc/mortrate
http://www.ojp


27

health care systems, while reducing the nation’s 
overall life expectancy. See generally Phillip Cook & 
Jens Ludwig, Gun Violence•' The Real Costs (Oxford 
Univ. Press 2002) (estimating medical expenditures 
relating to gun violence, with costs borne by the 
American public because many gun victims are 
uninsured and cannot pay for their medical care); 
Linda Gunderson, The Financial Costs o f Gun 
Violence, 131 Annals of Internal Medicine 483 (1999) 
(noting that the American public paid about eighty- 
five percent of the medical costs relating to gun 
violence); Jean Lemaire, The Cost o f Firearm Deaths 
in the United States-' Reduced Life Expectancies and 
Increased Insurance Costs, (2005), available at'- 
http J/knowledge.wharton.upenn.edu/ papers/1294. 
pdf?CFID=48458188&CFTOKEN=83914080&jsessio 
nid=a830d9608bc97d6668el (concluding, among 
other things, that the elimination of all firearm 
deaths would increase the male life expectancy more 
than the eradication of all colon and prostate 
cancers).

Although African Americans suffer from a 
disproportionate share of gun violence nationally, 
these disparities are significantly larger in the 
District. In 2004 alone, all but two of the 137 
firearm homicide victims in the District were 
African-American, most of them between the ages of 
fifteen and twenty-nine years old. See CDC, 
WISQARS, Injury Mortality Reports (2004), supra. 

African Americans make up approximately sixty 
percent of the District’s population, but comprise 
ninety-four percent of its homicide victims. See D.C. 
Dep’t of Health, Center for Policy, Planning, and 
Epidemiology, State Center for Health Statistics, 
Research and Analysis Division, Homicide in the



2 8

District o f Columbia, 1995-2004 5 (Feb. 1, 2007), 
available at http://www.doh.dc.gov/doh/lib/doh/ 
services/administration_offices/schs/pdf/5yrs_homici 
des_1995-2004 (final).pdf. Between 1999 and 2004, 
African Americans in the District died from firearm 
use at a rate 10.6 times higher than did whites, and 
suffered from firearm homicide at a rate 16.7 times 
higher than did whites. See CDC, WISQARS, Injury 
Mortality Reports (1999-2004), supra. The vast 
majority of these deaths were the result of handgun 
violence. See Nat’l Public Radio (NPR), D.C. Mayor 
Addresses Blow to Handgun Ban (Mar. 13, 2007), 
available at http://www.npr.org/templates/story/ 
story.php?storyId=7867355 (noting that 80 percent 
of homicides in the District are committed with 
handguns).

Given the prevalence of gun violence in the 
District and the devastating impact on its residents, 
the District Council had sound reasons to conclude 
that its handgun regulations would constitute a wise 
policy. Ultimately, the overall effectiveness of the 
District’s handgun prohibition is not relevant to the 
Court, given the applicable legal standard as 
discussed above. However, we submit that, although 
the District’s prohibition may not be a complete 
solution, especially because the absence of regional 
regulations permits guns to continue to flow into the 
District from neighboring jurisdictions, local efforts 
to reduce the number of handguns on the District’s 
streets should be considered one piece of a larger 
solution. Indeed, the enactment of the handgun ban 
in the District thirty years ago was accompanied by 
an abrupt decline in firearm-caused homicides in the 
District, but not elsewhere in the Metropolitan area. 
See Petitioners’ Br. 52 (citing Colin Loftin, et al.,

http://www.doh.dc.gov/doh/lib/doh/
http://www.npr.org/templates/story/


29

Effects o f Restrictive Licensing in Handguns on 
Homicide and Suicide in the District o f Columbia, 
325 New England J. Med. 1615 (1991)). A recent 
study revealed that a ten percent increase in 
handgun ownership causes a two percent increase in 
homicides. See id. {citingMark Duggan, More Guns, 
More Crime, 109 J. Pol. Econ. 1086, 1095-98 (2001)). 
These trends underscore the importance of the 
District’s efforts and certainly do not counsel in favor 
of an unwarranted jurisprudential break that could 
drastically limit or foreclose such efforts. This 
Court’s settled precedents provide the necessary 
latitude for the District to best protect its citizens by 
making the policy decision that fewer handguns, not 
more, promote public health and safety.

In short, a decision by this Court upholding the 
D.C. Circuit’s invalidation of the District’s handgun 
regulations would interfere with legitimate efforts to 
save lives. Given the clear and established 
understanding of the Second Amendment, which 
would allow the District’s firearm regulations to 
remain in place, there is no basis for this Court to 
issue such a ruling.

3. Abandoning the clear and established 
understanding of the Second Amendment 
would not address racial discrimination in 
the administration of criminal justice in 
general or the administration of firearm 
restrictions in particular

Concerns about this nation’s past or present-day 
problems with racial discrimination do not provide a 
basis for invalidating the District’s handgun



30

regulations. The solution to discriminatory 
enforcement of firearm laws is not to reinterpret the 
Second Amendment to protect an individual right to 
“keep and bear Arms” for purely private purposes, 
but rather to employ, as necessary, this Court’s 
traditional vehicle for rooting out racial 
discrimination: the Equal Protection Clause of the 
Fourteenth Amendment, or, where the actions of the 
federal government are at issue, the Due Process 
Clause of the Fifth Amendment. See United States 
v. Armstrong, 517 U.S. 456, 464-65 (1996)
(administration of a criminal law may be “directed so 
exclusively against a particular class of persons . . . 
with a mind so unequal and oppressive” that the 
system of enforcement and prosecution amounts to 
“a practical denial” of equal protection of the laws) 
(■quoting Yick Wo v. Hopkins, 118 U.S. 356, 373 
(1886)); see also Vasquez v. Hillery, 474 U.S. 254 
(1986) (racial discrimination in the selection of the 
grand jury violates Equal Protection); Batson v. 
Kentucky, 476 U.S. 79 (1986) (invalidating the use of 
race as a factor in the exercise of peremptory 
challenges).25 To the extent the history surrounding 
the adoption of early gun control laws, or even the 
Second Amendment itself, is tainted by racial 
discrimination, see Carl T. Bogus, The Hidden 
History o f the Second Amendment, 31 U.C. Davis L. 
Rev. 309 (1998) (arguing that a major function of the 
“well regulated militia” of the Second Amendment 
during colonial and post-revolutionary times was the 
maintenance of slavery in the South and the 
suppression of slave rebellion); Robert J. Cottrol & 
Raymond T. Diamond, The Second Amendment-

25 Consistent with this position, LDF filed briefs in all of these 
cases either as counsel for a party or as an amicus.



31

Toward an Afro-Americanist Reconsideration, 80 
Geo. L.J. 309 (1991) (tracing the discriminatory 
intent of early firearms restrictions), then the 
Fourteenth Amendment is the appropriate vehicle 
for that bias to be ferreted out and eliminated.

Contrary to the assertions of some, the modern 
firearm regulations at issue in this case should not 
be confused with the Black Codes, other
discriminatory laws that the Fourteenth 
Amendment invalidated, or more recent cases where 
Fourteenth Amendment protections have been 
implicated. The Fourteenth Amendment’s
protections rightly extend in the face of a colorable 
assertion that the District’s firearm regulations (or 
those of any other jurisdiction) are racially 
discriminatory in origin or application, but such a 
showing has not been made here or even alleged by 
Respondents.

CONCLUSION

This Court, all but two of the federal Courts of 
Appeals, and the various State appellate courts have 
consistently held that the Second Amendment does 
not protect an individual right to “keep and bear 
Arms” for purely private purposes. Prior to the 
decision below, no federal court had ever found a 
statute facially invalid under the Second 
Amendment without subsequently being reversed. 
While evolution in the understanding of a 
Constitutional provision is sometimes warranted, 
nothing has changed in regard to the Second 
Amendment that would justify this Court in 
radically departing from its jurisprudence here; if



32

anything, the lethal nature of the modern handgun 
and the epidemic of handgun violence and its 
attendant effects on the African-American 
community in this country should cast doubt on the 
radical reinterpretation of the Second Amendment 
proffered by the D.C. Circuit.

Respectfully Submitted,

Theodore M. Shaw,
Director Counsel 

Jacqueline A. Berrien 
*Victor A. Bolden 
Debo P. Adegbile 
Marc K. Battle 
NAACP LEGAL DEFENSE & 

EDUCATIONAL FUND, INC. 
99 Hudson Street, Suite 1600 
New York, NY 10013 
(212) 965-2200

January 11,2008

Michael B. de Leeuw 
Darcy M. Goddard 
Dale E. Ho
FRIED, FRANK, HARRIS, 

SHRIVER & JACOBSON LLP 
One New York Plaza 
New York, New York 10004 
(212) 859-8000

*Counsel of Record