Mr. Chairman, distinguished members of the Committee:
My name is Robert A. Levy. I am a senior fellow in constitutional studies at the Cato Institute. Thank you for inviting me to comment on selected aspects of the District of Columbia’s gun control laws.
This afternoon, I testify in support of the principles underlying H.R. 1288, The District of Columbia Personal Protection Act, which would repeal the District’s ban on handguns and make other changes to the city’s gun control laws. Although I support the underlying principles, I am nevertheless opposed to enactment of the legislation at this time. Essentially, I believe that advocates of gun owners’ rights will be better served if Parker v. District of Columbia, a Second Amendment challenge to the D.C. handgun ban, is first resolved by the U.S. Court of Appeals for the District of Columbia Circuit, then presented to the U.S. Supreme Court for final review. Of course, Parker will be dismissed as moot if the challenged law is repealed.
My reasons for preferring the judicial route before proceeding with legislation are elaborated in Part IV below, “What Role Should Congress Play in Securing Second Amendment Rights?” First, however, some background in Part I, “Does the Second Amendment Secure an Individual or Collective Right?” That is followed by Part II, “Does the Second Amendment Apply to the District of Columbia?” Then Part III, “How Can District Residents Best Secure Their Second Amendment Rights?”
I. Does the Second Amendment Secure an Individual or Collective Right?
A question that has perplexed legal scholars for decades goes like this: Does the right to keep and bear arms belong to us as individuals, or does it belong to us collectively as members of a militia? The answer has now been documented in an extended and scholarly staff memorandum opinion prepared for the Attorney General and released to the public last year.1 The memorandum opinion concluded that “The Second Amendment secures a right of individuals generally, not a right of States or a right restricted to persons serving in militias.”
I concur. The main clause of the Second Amendment (“the right of the people to keep and bear Arms, shall not be infringed”) secures the right. The subordinate clause (“A well regulated Militia, being necessary to the security of a free State”) justifies the right. Properly understood, the militia clause helps explain why we have a right to bear arms. A well‐regulated militia is a sufficient but not necessary condition to the exercise of that right. Imagine if the Second Amendment said, “A well‐educated Electorate, being necessary to self‐governance in a free state, the right of the people to keep and read Books shall not be infringed.” Surely, no one would suggest that only registered voters (i.e., members of the electorate) would have a right to read.2 Yet that is precisely the effect if the Second Amendment is interpreted to apply only to members of a militia.
If the Second Amendment truly meant what the collective rights advocates propose, then the text would read, “A well regulated Militia being necessary to the security of a free State, the right of the states [or the state militias] to keep and bear arms shall not be infringed.” But the Second Amendment, like the First and Fourth Amendments, refers explicitly to “the right of the people.” Consider the placement of the amendment within the Bill of Rights, the part of the Constitution that deals exclusively with the rights of individuals. There can be no doubt that First Amendment rights like speech and religion belong to us as individuals. Similarly, Fourth Amendment protections against unreasonable searches are individual rights. In the context of the Second Amendment, we secure “the right of the people” by guaranteeing the right of each person. Second Amendment protections were not intended for the state but for each individual against the state — a deterrent to government tyranny. Here’s how Ninth Circuit judge Alex Kozinski put it: “The institution of slavery required a class of people who lacked the means to resist.… All too many of the … great tragedies of history — Stalin’s atrocities, the killing fields of Cambodia, the Holocaust — were perpetrated by armed troops against unarmed populations.“3
Maybe the threat of tyrannical government is less today than it was when our republic was experiencing its birth pangs. But incompetence by the state in defending its citizens is a greater threat. The demand for police to defend us increases in proportion to our inability to defend ourselves. That’s why disarmed societies tend to become police states. Witness law abiding inner city residents, disarmed by gun control, begging for police protection against drug gangs — despite the terrible violations of civil liberties that such protection entails (e.g., curfews, anti‐loitering laws, civil asset forfeiture, non‐consensual searches of public housing, and even video surveillance of residents in high crime areas). An unarmed citizenry creates the conditions that lead to tyranny. The right to bear arms is thus preventive; it reduces the demand for a police state. When people are incapable of protecting themselves, they become either victims of the criminals or dependents of the state.
What do the courts have to say? In a 2001 Texas case, United States v. Emerson, the Fifth Circuit held that the Constitution “protects the right of individuals, including those not then actually a member of any militia … to privately possess and bear their own firearms … suitable as personal individual weapons.“4 That constitutional right is not absolute, said the court. For example, killers do not have a constitutional right to possess weapons of mass destruction. Some persons and some weapons may be restricted. Indeed, the Fifth Circuit held that Emerson’s Second Amendment rights could be temporarily curtailed because there was reason to believe he posed a threat to his estranged wife. And the Tenth Circuit, in United States v. Haney,5 ruled that machine guns were not the type of weapon protected by the Second Amendment. The Supreme Court declined to review either case.
The high Court has not decided a Second Amendment case since United States v. Miller in 1939.6 On that occasion, the challenged statute required registration of machine guns, sawed off rifles, sawed off shotguns, and silencers. First, said the Court, “militia” means all males physically capable of acting in concert for the common defense. That suggested a right belonging to all of us, as individuals. But the Court also held that the right extended only to weapons rationally related to a militia — not the sawed off shotgun questioned in Miller. That mixed ruling has puzzled legal scholars for more than six decades. If military use is the decisive test, then citizens can possess rocket launchers and missiles. Obviously, that is not what the Court had in mind. Indeed, anti‐gun advocates, who regularly cite Miller with approval, would be apoplectic if the Court’s military‐use doctrine were logically extended.
Because Miller is so murky, it can only be interpreted narrowly, allowing restrictions on weapons, like machine guns and silencers, with slight value to law abiding citizens, and high value to criminals. In other words, Miller applies to the type of weapon, not to the question whether the Second Amendment protects individuals or members of a militia. That’s the conclusion the Fifth Circuit reached in Emerson. It found that Miller upheld neither the individual rights model of the Second Amendment nor the collective rights model. Miller simply decided that the weapons at issue were not protected.
Enter former U.S. Attorney General John Ashcroft. First, in a letter to the National Rifle Association,7 he reaffirmed a long‐held opinion that all law‐abiding citizens have an individual right to keep and bear arms. Ashcroft’s letter was supported by 18 state attorneys general, including six Democrats,8 then followed by two Justice Department briefs, filed with the Supreme Court in the Haney and Emerson cases. For the first time, the federal government argued against the collective rights position in formal court papers.
Despite Ashcroft’s view of the Second Amendment, the Justice Department declared that both Emerson and Haney were correctly decided. In Emerson, the restriction on persons subject to a domestic violence restraining order was a permissible exception to Second Amendment protection. And in Haney, the ban on machine guns applied to a type of weapon uniquely susceptible to criminal misuse.
Many legal scholars are now taking that same position. Harvard’s Alan Dershowitz, a former ACLU board member, says he “hates” guns and wants the Second Amendment repealed. But he condemns “foolish liberals who are trying to read the Second Amendment out of the Constitution by claiming it’s not an individual right …. They’re courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don’t like.“9 Harvard’s Laurence Tribe, another respected liberal scholar, and Yale professor Akhil Amar acknowledge that there is an individual right to keep and bear arms, albeit limited by “reasonable regulation in the interest of public safety.“10 In that respect, Tribe and Amar agree with the Emerson court and with Ashcroft on two fundamental issues: First, the Second Amendment confirms an individual rather than a collective right. Second, that right is not absolute; it is subject to regulation. To the extent there is disagreement, it hinges on what constitutes permissible regulation — i.e., where to draw the line.
To reinforce the views of Dershowitz, Tribe, Amar, and Ashcroft, let me comment briefly on a few of the underlying constitutional points.
Three provisions limit the states’ power over the militia. Article I, section 8, grants Congress the power to “organiz[e], arm, and disciplin[e], the militia.” Article I, section 10, says that “No state shall, without the consent of Congress, … keep troops in time of peace.” Article II, section 2, declares the “President shall be Commander in Chief … of the Militia of the several States.” Given those three provisions, how could the Second Amendment secure a state’s right to arm the militia? No one argued then or argues now that the Second Amendment repealed all three earlier provisions.
Consider the Supreme Court’s pronouncement in Miller: “When called for service [in an organized militia] these men were expected to appear bearing arms supplied by themselves.” If militia members were to arm themselves, the Second Amendment could not refer to states arming militias. Furthermore, if the Miller Court thought the Second Amendment merely enabled states to arm their militias, the Court would have dismissed the case on standing grounds. The plaintiff, Miller, was not a state and therefore had no standing to sue. The Court would never have reached the question whether a sawed off shotgun had military utility.
Multiple provisions in the Bill of Rights refer to the right “of the people.” In a 1990 case, United States v. Verdugo‐Urquidez, the Court said, “ ‘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 have otherwise developed sufficient connection with this country to be considered part of that community.“11 That statement contains no mention or even suggestion of a collective right
What about the militia clause? That syntax was not unusual for the times. For example, the free press clause of the 1842 Rhode Island Constitution stated: “The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments of any subject.” That provision surely does not mean that the right to publish protects only the press. It protects “any person”; and one reason among others that it protects any person is that a free press is essential to a free society.
In the Militia Act of 1792, militia is defined as “every free able‐bodied white male citizen … who is or shall be of the age of 18 years, and under the age of 45 years.“12 That definition is expanded in the Modern Militia Act (1956–58) to read “all able‐bodied males at least 17 years of age and … under 45 yrs of age [and] female citizens … who are members of the National Guard.” The Act goes on to state that “the classes of the militia are (1) the organized militia, which consists of the National Guard and the Naval Militia; and (2) the unorganized militia, which consists of [all other members].“13 Ninth Circuit judge Andrew J. Kleinfeld wrote that the “militia is like the jury pool, consisting of ‘the people,’ limited, like the jury pool, to those capable of performing the service.“14
Next, consider this historical context: Anti‐federalists wanted three major changes prior to ratifying the Constitution: (1) include a Bill of Rights, (2) give states, not the federal government, power to arm the militia, and (3) eliminate federal power to maintain a standing army. Here was the federalist response, addressing those demands in reverse order: (1) Don’t worry about the federal government maintaining a standing army; the federal militia power will obviate that need. (2) Don’t worry about federal control over the militia; armed individuals will obviate those concerns. And (3) to ensure that individuals have a right to be armed, we will include such a provision in a Bill of Rights. So the federalist position depended on the people being armed. Clearly, the addition of the Second Amendment could not have been intended to eliminate that right. The Second Amendment’s prefatory clause was the federalists’ way of pacifying anti‐federalists without limiting the power of the federal government to maintain a standing army or increasing the states’ power over the militia.
Here’s a parallel view of that history, interpreting the term “well‐regulated.” In its 18th century context, well‐regulated did not mean heavily regulated, but rather properly, not overly regulated. Looked at in that manner, the Second Amendment ensured that militias would not be improperly regulated — even weakened — by disarming the citizens who would be their members. The Framers feared and distrusted standing armies; so they provided for a militia (all able‐bodied males above the age of 17) as a counterweight. But the framers also realized, in granting Congress near‐plenary power over the militia, that a select, armed subset — like today’s National Guard — could be equivalent to a standing army. So they wisely crafted the Second Amendment to forbid Congress from disarming other citizens, thereby ensuring a “well‐regulated” militia.
For those of us eagerly awaiting a Supreme Court pronouncement on the Second Amendment, for the first time in 66 years, the Constitution is on our side.
II. Does the Second Amendment Apply to the District of Columbia?
In January 2004, U.S. District Judge Reggie B. Walton dismissed on standing grounds the claims of all but one plaintiff in Seegars v. Ashcroft, a Second Amendment challenge to the D.C. gun ban. With respect to one plaintiff deemed to have standing, Judge Walton held that she was “unable to maintain a Second Amendment challenge … and, in any event, the Second Amendment does not apply to the District of Columbia.“15
That conclusion echoed a prior concurring opinion in Sandidge v. United States, a 1987 case that reached the D.C. Court of Appeals.16 Both the Sandidge concurrence and the Seegars opinion observed that the text of the Second Amendment refers to the security of a “free State,” but the District of Columbia is not a state. “Nothing suggests that the founders were concerned about ‘free territories,’ ‘free protectorates,’ or a ‘free Seat of Government of the United States.’ … Therefore, whatever may be said for the second amendment and its reach within the several states, I conclude that it does not apply to the Seat of Government.“17
In light of the opinions in Sandidge and Seegars, I have been asked by the Committee to comment on the proposition that the District of Columbia is not subject to the Second Amendment.18 A few observations:
Sandidge is a local court decision, not binding on federal courts. Moreover, the opinion in Sandidge is a concurrence, not the holding of the court.
The conclusion in Seegars is dicta. Judge Walton held that the plaintiff could not sustain a Second Amendment challenge for a number of reasons not relevant here. His statement about the applicability of the Second Amendment to the District was not essential to his overall holding.
Seegars was reversed in relevant part (on standing grounds) by the U.S. Court of Appeals,19 which has not established any precedent on this issue within the D.C. Circuit.
Indeed, the D.C. Circuit in a 1998 case, Fraternal Order of Police v. United States, rejected a Second Amendment challenge by a policeman not able to possess a gun because he had been convicted of a misdemeanor domestic violence charge.20 The court found a rational basis for the gun restriction — a question the court need not have addressed if it believed that the Second Amendment was inapplicable to the District.
In Parker v. District of Columbia (about which more below), U.S. District Judge Emmet G. Sullivan dismissed a Second Amendment challenge on the merits without invoking Judge Walton’s prior dicta that the District is exempt from the Second Amendment.21
Even if the courts were to agree that the Second Amendment does not apply to the District of Columbia, Congress has plenary power to enact legislation that forecloses violation of the Second Amendment by the District of Columbia government. Nothing precludes Congress from granting rights to D.C. residents that exceed those secured by the U.S. Constitution.
The Constitution refers in multiple places to states as distinct political components of the United States. For example, the authority to train the militia is “reserv[ed] to the States”; “No State shall enter into any treaty”; “nor shall any State deprive any person of life, liberty, or property, without due process of law.” The terms “the States,” “no State,” and “any State” — denoting State governments — contain nouns without descriptive adjectives. That should be contrasted with “free State,” a descriptive and more generic term that refers to any political entity in which the citizens possess individual rights and enjoy liberty.22
In contemporaneous usage, a “free state” meant a “free society.” That interpretation is confirmed by Webster’s 1828 American Dictionary of the English Language, which defines “free,” in part, as follows: “In government, not enslaved; … not subject to the arbitrary will of a sovereign or lord; as a free state, nation or people.” And Webster defined “state,” in pertinent part, as “A political body, or body politic; the whole body of people united under one government, whatever may be the form of the government.”
Alexander Hamilton, in Federalist No. 29, wrote that an armed citizenry is the best and only real defense against a standing army. He added: “Little more can reasonably be aimed at with respect to the people at large than to have them properly armed and equipped.” James Madison, in Federalist No. 46, stated that a standing army “would be opposed [by] a militia amounting to near half a million citizens with arms in their hands.” It is simply inconceivable that Hamilton and Madison meant to exclude from the “people at large” and “near half a million citizens” the inhabitants of the Nation’s Capital.
Even if the term “free State” does not encompass Washington, D.C., the notion that the District is therefore exempt from the Second Amendment depends on a “collective rights” interpretation under which the militia clause is a necessary condition of the right to keep and bear arms. But if the militia clause is merely explanatory, as argued above, then it is a sufficient, but not necessary, condition to the exercise of Second Amendment rights. Accordingly, whether the District of Columbia is a state would be irrelevant.
The 14th Amendment begins with this crystalline statement: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.” As citizens of the United States — even if not citizens of a particular state — D.C. residents are entitled to the rights of U.S. citizenship. To declare and reinforce one of those rights, Congress passed the Firearms Owners’ Protection Act of 1986, which stated that “the rights of citizens [include the right] to keep and bear arms under the second amendment to the United States Constitution.23 Thus, the District’s ban on possession of handguns by law‐abiding residents violates a right of citizenship guaranteed by the 14th Amendment, as interpreted by Congress — regardless whether the District of Columbia is a state.
III. How Can District Residents Best Secure Their Second Amendment Rights?
To vindicate the Second Amendment rights of D.C. residents, and guarantee that those rights will be permanently secured, a constitutional challenge to the District’s gun laws should be brought in a federal court where there is no adverse judicial precedent. Preferably, the challenge should be civil, not criminal; filed by sympathetic, law‐abiding plaintiffs who simply want a gun in their home for self‐defense.
In fact, such a case is now pending before the U.S. Court of Appeals for the District of Columbia Circuit. In February 2003, three local attorneys and I filed a civil lawsuit in Washington, D.C.‘s federal court on behalf of six D.C. residents who want to be able to defend themselves in their own homes. The litigation, Parker v. District of Columbia, is not about machine guns and assault weapons. It’s about the right to own ordinary, garden‐variety handguns. Nor do the plaintiffs argue for the right to carry a gun outside the home. That’s another question for another day. This case is about a pistol in the home for self‐defense.
Off and on over the years, Washington, D.C. has reclaimed its title as the nation’s murder capital. Yet, the D.C. government has been feckless in disarming violent criminals. At the same time, however, it has done a superb job of disarming decent, peaceable residents.
For starters, no handgun can be registered in D.C. Even those pistols registered prior to the District’s 1976 ban cannot be carried from room to room in the home without a license, which is never granted. Moreover, all firearms in the home, including rifles and shotguns, must be unloaded and either disassembled or bound by a trigger lock. In effect, no one in the District can possess a functional firearm in his or her own residence. The law applies not just to “unfit” persons like felons, minors, or the mentally incompetent, but across‐the‐board to ordinary, honest, responsible citizens.
More than three dozen challenges to the D.C. law have already been filed but mostly by criminals serving longer sentences for gun possession. The Parker case is different. The lead plaintiff, Shelly Parker, resides in a high‐crime neighborhood in the heart of the District. People living on her block are harassed relentlessly by drug dealers and addicts. Ms. Parker decided to do something about it. She called the police time and again then encouraged her neighbors to do the same. She organized block meetings to discuss the problem. For her audacity, Shelly Parker was labeled as a trouble‐maker by the dealers, who threatened her at every opportunity.
In 2002, the back window of her car was broken. Then a large rock was thrown through her front window. Her security camera was stolen from the outside of her house. A drug user drove his car into her back fence. A year later, a dealer started banging on her door and tried to pry his way into her house, repeatedly yelling, “Bitch, I’ll kill you, I live on this block too.” Ms. Parker knows that the police are “not going to do very much about the drug problem on my block.” She would like to possess a functional handgun within her home for self‐defense, but fears arrest, prosecution, incarceration, and fine because of D.C.‘s unconstitutional gun ban.
A second plaintiff is a special police officer who carries a handgun to provide security for the Thurgood Marshall Judicial Center. But when he applied for permission to possess a handgun within his home, to defend his own household, the D.C. government turned him down. Other plaintiffs include a gay man who was assaulted in another city on account of his sexual orientation. While walking to dinner with a co‐worker, he encountered a group of young men who started yelling, “faggot,” “homo,” “queer,” “we’re going to kill you and they’ll never find your bodies.” Our plaintiff pulled his handgun out of his backpack and his assailants retreated. He could not have done that in Washington, D.C.
The six plaintiffs in Parker v. District of Columbia are asking a federal judge to prevent D.C. from barring the registration of handguns, banning the possession of functional firearms within the home, and forbidding firearms from being carried from room to room. The plaintiffs live in the District, pay their taxes in the District, and obey the laws in the District. But the District of Columbia says that if someone breaks into their houses, their only choice is to call 911 and pray that the police arrive in time. That’s not good enough. The right to keep and bear arms includes the right to defend your property, your family, and your life. No government should be permitted to take that right away.
IV. What Role Should Congress Play in Securing Second Amendment Rights?
Most of the public statements opposing The District of Columbia Personal Protection Act are without merit. I address two of them below.
First, District of Columbia Del. Eleanor Holmes Norton argues that Congress must not intervene to overturn selected D.C. gun laws because that would represent an impermissible “intrusion into our self‐government.“24 Nonsense. Congress, as expressly set out in Article I of the U.S. Constitution, has plenary power over the District. Moreover, every member of Congress has an independent, affirmative obligation to uphold the Constitution. If the District’s handgun ban violates the Second Amendment — as it does — then Congress should act to defend D.C. residents’ Second Amendment rights.
Second, the Washington Post editorializes that Congress should not use its plenary power in a supposedly local matter because “the District is hardly unique.“25 Wrong again. The District is indeed unique, in the following respects:
The District’s rate of gun violence is among the highest in the nation. Still, Washington, D.C. has the most draconian gun laws of any major city. If “reasonable” regulations are those that prohibit bad persons from possessing massively destructive firearms, then the District’s blanket prohibition of handguns is patently unreasonable.
Until 1868, when the 14th Amendment was ratified, the Bill of Rights applied only to the federal government. But unlike most of the other ten amendments, the applicability of the Second Amendment to the states has not been resolved. Yet because Washington, D.C. is not one of the 50 states (even though it is a “free State” in the context of the Second Amendment), the complex, widely debated question of “incorporation” need not be addressed when D.C. law is challenged on Second Amendment grounds.
Felonies under D.C. law are prosecuted by the U.S. Attorney for the District of Columbia, an employee of the Justice Department — the same Justice Department that is now on record favoring an individual rights theory of the Second Amendment. To be sure, former Attorney General Ashcroft declared in an internal memorandum that the Justice Department “will continue to defend the constitutionality of all existing federal firearms laws.“26 But D.C. law, although enacted pursuant to congressional delegation, is not federal law.
That said, there is a legitimate and important reason for Congress to step aside until Parker v. District of Columbia is resolved. The Parker lawsuit was filed by upstanding D.C. residents who want to be able to defend themselves and their families in their own homes. Parker is now pending before the U.S. Court of Appeals for the D.C. Circuit. If H.R. 1288 is enacted, the lawsuit will be dismissed as moot. After all, plaintiffs cannot challenge a law that no longer exists.
Otherwise, Parker could well be headed to the Supreme Court; and that is where it belongs. The citizens of this country deserve a foursquare pronouncement from the nation’s highest court about the real meaning of the Second Amendment for all Americans — not just the residents of D.C. Presently, because the Supreme Court has not resolved its view of the Second Amendment, the right to keep and bear arms under state law extends only as far as each state’s constitution or statutes permit. That’s unacceptable. A disputable Second Amendment right without a legally enforceable federal remedy is, in some states, no right at all.
Although the rights of D.C. residents can be secured by either legislation or litigation, a narrow bill aimed at the D.C. Code will do only part of the job. The bill could be repealed by the next anti‐gun Congress. And more important, the bill will have no effect outside of the District.27 That means, of course, the bill will have negligible impact on gun owners’ rights when contrasted with an unambiguous proclamation, applicable across the nation, from the U.S. Supreme Court.
If the Court should mistakenly hold that the Second Amendment provides a collective rather than an individual right, that would be the time for the legislative branch to ensure that D.C. residents have more protection than the judicial branch was willing to recognize. Until then, congressional action is premature.
1U.S. Department of Justice, “Whether the Second Amendment Secures an Individual Right,” August 24, 2004, available at http://www.usdoj.gov/olc/secondamendment2.htm.
2Nelson Lund, A Primer on the Constitutional Right to Bear Arms, Virginia Institute for Public Policy Report No. 7, at 5 (citing Ronald S. Resnick, “Private Arms as the Palladium of Liberty: The Meaning of the Second Amendment,” 77 U. Det. Mercy L. Rev. 1, 4 (1999)).
3Silveira v. Lockyer, 328 F.3d 567, 569–570 (9th Cir. 2003) (Kozinski, J., dissenting from denial of rehearing en banc).
4United States v. Emerson, 270 F.3d 203, 260 (5th Cir. 2001).
5United States v. Haney, 264 F.3d 1161, 1166 (10th Cir. 2001).
6United States v. Miller, 307 U.S. 174 (1939).
7Letter from John Ashcroft, then-U.S. Attorney General, to James Jay Baker, Executive Director, National Rifle Association (May 17, 2001) available at http://www.nraila.org/images/Ashcroft.pdf.
8Letter from Bill Pryor, then‐Alabama Attorney General, to John Ashcroft, then-U.S. Attorney General (July 8, 2002), copy available in my files.
9Quoted in Dan Gifford, “The Conceptual Foundations of Anglo‐American Jurisprudence in Religion and Reason,” 62 Tenn. L. Rev. 759, 789 (1995).
10Laurence H. Tribe and Akhil Reed Amar, “Well‐Regulated Militias, and More,” N.Y. Times, Oct. 28, 1999, at A31.
11United States v. Verdugo‐Urquidez, 494 U.S. 259, 265 (1990).
12Militia Act of 1792, ch. 33, § 1, 1 Stat. 271 (1792).
1310 U.S.C.A § 311 (1956).
14Silveira v. Lockyer, 328 F.3d 567, 582 (9th Cir. 2003) (Kleinfeld, J., dissenting).
15Seegars v. Ashcroft, 297 F. Supp. 2d 201, 204 (D.D.C. 2004).
16Sandidge v. United States, 520 A.2d 1057 (D.C. 1987) (Nebeker, J., concurring).
17Id. at 1059.
18For a definitive treatment of this issue, see Stephen P. Halbrook, “Second‐Class Citizenship and the Second Amendment in the District of Columbia, 5 GMU Civ. Rts. L.J. 105–178 (1995).
19Seegars v. Gonzales, 396 F.3d 1248, 1256 (D.C. Cir. 2005).
20Fraternal Order of Police v. United States, 152 F.3d 998, 1002–1004 (D.C. Cir. 1998).
21Parker v. District of Columbia, 311 F. Supp. 2d 103 (D.D.C 2004).
22The capitalization of State within the Second Amendment and elsewhere among the cited constitutional provisions is of no discernible significance. Note, for example, that terms like Powers, Year, Qualifications, Branch, and Age are also capitalized, without apparent import.
23Pub. L. No. 99–308, 100 Stat. 449, § 1(b)(1)(A).
24Press Release, Del. Eleanor Holmes Norton, Norton Ready to Fight Gun Repeal on House Floor Next Wednesday (Sept. 24, 2004) available at http://www.dcvote.org/media/release.cfm?releaseID=137.
25Gunning for the District,” Wash. Post, Sept. 15, 2004, A24.
26Quoted in Neely Tucker and Arthur Santana, “U.S. Backs District Gun Law in Court: Argument Differs from Ashcroft’s,” Wash. Post, Mar. 31, 2002, at A01.
27In my view, Congress is empowered to overturn gun control laws, anywhere in the United States, if those laws violate the Second Amendment. Section 5 of the 14th Amendment authorizes Congress to remedy state violations of rights secured by the federal Constitution, providing that the remedy is “congruent and proportional” to the underlying violation. See City of Boerne v. Flores, 521 US 507, 530 (1997). Yet that is not what Congress purports to accomplish by enacting H.R. 1288, which is directed exclusively at the District of Columbia.