Oversight Hearing on the District of Columbia’s Gun Control Laws

Share

Mr. Chairman, distinguished members of the Committee:

My name is Robert A. Levy. I am a senior fellow inconstitutional studies at the Cato Institute. Thank you forinviting me to comment on selected aspects of the District ofColumbia's gun control laws.

This afternoon, I testify in support of the principlesunderlying H.R. 1288, The District of Columbia Personal ProtectionAct, which would repeal the District's ban on handguns and makeother changes to the city's gun control laws. Although I supportthe underlying principles, I am nevertheless opposed to enactmentof the legislation at this time. Essentially, I believe thatadvocates of gun owners' rights will be better served if Parkerv. District of Columbia, a Second Amendment challenge to theD.C. handgun ban, is first resolved by the U.S. Court of Appealsfor the District of Columbia Circuit, then presented to the U.S.Supreme Court for final review. Of course, Parker will bedismissed as moot if the challenged law is repealed.

My reasons for preferring the judicial route before proceedingwith legislation are elaborated in Part IV below, "What Role ShouldCongress Play in Securing Second Amendment Rights?" First, however,some background in Part I, "Does the Second Amendment Secure anIndividual or Collective Right?" That is followed by Part II, "Doesthe Second Amendment Apply to the District of Columbia?" Then PartIII, "How Can District Residents Best Secure Their Second AmendmentRights?"

I. Does the Second Amendment Secure an Individual orCollective Right?

A question that has perplexed legal scholars for decades goeslike this: Does the right to keep and bear arms belong to us asindividuals, or does it belong to us collectively as members of amilitia? The answer has now been documented in an extended andscholarly staff memorandum opinion prepared for the AttorneyGeneral and released to the public last year.1 The memorandum opinion concluded that"The Second Amendment secures a right of individuals generally, nota right of States or a right restricted to persons serving inmilitias."

I concur. The main clause of the Second Amendment ("the right ofthe people to keep and bear Arms, shall not be infringed") securesthe right. The subordinate clause ("A well regulated Militia, beingnecessary to the security of a free State") justifies the right.Properly understood, the militia clause helps explain why we have aright to bear arms. A well-regulated militia is a sufficient butnot necessary condition to the exercise of that right. Imagine ifthe Second Amendment said, "A well-educated Electorate, beingnecessary to self-governance in a free state, the right of thepeople to keep and read Books shall not be infringed." Surely, noone would suggest that only registered voters (i.e., members of theelectorate) would have a right to read.2 Yet that is precisely the effect if the SecondAmendment is interpreted to apply only to members of a militia.

If the Second Amendment truly meant what the collective rightsadvocates propose, then the text would read, "A well regulatedMilitia being necessary to the security of a free State, the rightof the states [or the state militias] to keep and bear arms shallnot be infringed." But the Second Amendment, like the First andFourth 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 rightsof individuals. There can be no doubt that First Amendment rightslike speech and religion belong to us as individuals. Similarly,Fourth Amendment protections against unreasonable searches areindividual rights. In the context of the Second Amendment, wesecure "the right of the people" by guaranteeing the right of eachperson. Second Amendment protections were not intended for thestate but for each individual against the state - a deterrent togovernment tyranny. Here's how Ninth Circuit judge Alex Kozinskiput it: "The institution of slavery required a class of people wholacked the means to resist.… All too many of the …great tragedies of history - Stalin's atrocities, the killingfields of Cambodia, the Holocaust - were perpetrated by armedtroops against unarmed populations."3

Maybe the threat of tyrannical government is less today than itwas when our republic was experiencing its birth pangs. Butincompetence by the state in defending its citizens is a greaterthreat. The demand for police to defend us increases in proportionto our inability to defend ourselves. That's why disarmed societiestend to become police states. Witness law abiding inner cityresidents, disarmed by gun control, begging for police protectionagainst drug gangs - despite the terrible violations of civilliberties that such protection entails (e.g., curfews,anti-loitering laws, civil asset forfeiture, non-consensualsearches of public housing, and even video surveillance ofresidents in high crime areas). An unarmed citizenry creates theconditions that lead to tyranny. The right to bear arms is thuspreventive; it reduces the demand for a police state. When peopleare incapable of protecting themselves, they become either victimsof the criminals or dependents of the state.

What do the courts have to say? In a 2001 Texas case, UnitedStates v. Emerson, the Fifth Circuit held that theConstitution "protects the right of individuals, including thosenot then actually a member of any militia … to privatelypossess and bear their own firearms … suitable as personalindividual weapons."4That constitutional right is not absolute, said the court. Forexample, killers do not have a constitutional right to possessweapons of mass destruction. Some persons and some weapons may berestricted. Indeed, the Fifth Circuit held that Emerson's SecondAmendment rights could be temporarily curtailed because there wasreason to believe he posed a threat to his estranged wife. And theTenth Circuit, in United States v. Haney,5 ruled that machine guns were not thetype of weapon protected by the Second Amendment. The Supreme Courtdeclined to review either case.

The high Court has not decided a Second Amendment case sinceUnited States v. Miller in 1939.6 On that occasion, the challenged statuterequired registration of machine guns, sawed off rifles, sawed offshotguns, and silencers. First, said the Court, "militia" means allmales physically capable of acting in concert for the commondefense. That suggested a right belonging to all of us, asindividuals. But the Court also held that the right extended onlyto weapons rationally related to a militia - not the sawed offshotgun questioned in Miller. That mixed ruling haspuzzled legal scholars for more than six decades. If military useis the decisive test, then citizens can possess rocket launchersand missiles. Obviously, that is not what the Court had in mind.Indeed, anti-gun advocates, who regularly cite Miller withapproval, would be apoplectic if the Court's military-use doctrinewere logically extended.

Because Miller is so murky, it can only be interpretednarrowly, allowing restrictions on weapons, like machine guns andsilencers, with slight value to law abiding citizens, and highvalue to criminals. In other words, Miller applies to thetype of weapon, not to the question whether the Second Amendmentprotects individuals or members of a militia. That's the conclusionthe Fifth Circuit reached in Emerson. It found that Millerupheld neither the individual rights model of the Second Amendmentnor the collective rights model. Miller simply decidedthat the weapons at issue were not protected.

Enter former U.S. Attorney General John Ashcroft. First, in aletter to the National Rifle Association,7 he reaffirmed a long-held opinion that alllaw-abiding citizens have an individual right to keep and beararms. Ashcroft's letter was supported by 18 state attorneysgeneral, including six Democrats,8 then followed by two Justice Department briefs,filed with the Supreme Court in the Haney andEmerson cases. For the first time, the federal governmentargued against the collective rights position in formal courtpapers.

Despite Ashcroft's view of the Second Amendment, the JusticeDepartment declared that both Emerson and Haneywere correctly decided. In Emerson, the restriction onpersons subject to a domestic violence restraining order was apermissible exception to Second Amendment protection. And inHaney, the ban on machine guns applied to a type of weaponuniquely susceptible to criminal misuse.

Many legal scholars are now taking that same position. Harvard'sAlan Dershowitz, a former ACLU board member, says he "hates" gunsand wants the Second Amendment repealed. But he condemns "foolishliberals who are trying to read the Second Amendment out of theConstitution by claiming it's not an individual right ….They're courting disaster by encouraging others to use the samemeans to eliminate portions of the Constitution they don'tlike."9 Harvard'sLaurence Tribe, another respected liberal scholar, and Yaleprofessor Akhil Amar acknowledge that there is an individual rightto keep and bear arms, albeit limited by "reasonable regulation inthe interest of public safety."10 In that respect, Tribe and Amar agree with theEmerson court and with Ashcroft on two fundamental issues:First, the Second Amendment confirms an individual rather than acollective right. Second, that right is not absolute; it is subjectto regulation. To the extent there is disagreement, it hinges onwhat constitutes permissible regulation - i.e., where to draw theline.

To reinforce the views of Dershowitz, Tribe, Amar, and Ashcroft,let me comment briefly on a few of the underlying constitutionalpoints.

  • 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, saysthat "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 ofthe several States." Given those three provisions, how could theSecond Amendment secure a state's right to arm the militia? No oneargued then or argues now that the Second Amendment repealed allthree earlier provisions.

  • Consider the Supreme Court's pronouncement in Miller:"When called for service [in an organized militia] these men wereexpected to appear bearing arms supplied by themselves." If militiamembers were to arm themselves, the Second Amendment could notrefer to states arming militias. Furthermore, if theMiller Court thought the Second Amendment merely enabledstates to arm their militias, the Court would have dismissed thecase on standing grounds. The plaintiff, Miller, was not astate and therefore had no standing to sue. The Court would neverhave reached the question whether a sawed off shotgun had militaryutility.

  • Multiple provisions in the Bill of Rights refer to the right "ofthe people." In a 1990 case, United States v.Verdugo-Urquidez, the Court said, "'the people' protected bythe Fourth Amendment, and by the First and Second Amendments, andto whom rights and powers are reserved in the Ninth and TenthAmendments, refers to a class of persons who are part of a nationalcommunity or have otherwise developed sufficient connection withthis country to be considered part of that community."11 That statement contains nomention or even suggestion of a collective right

  • What about the militia clause? That syntax was not unusual forthe times. For example, the free press clause of the 1842 RhodeIsland Constitution stated: "The liberty of the press beingessential to the security of freedom in a state, any person maypublish his sentiments of any subject." That provision surely doesnot mean that the right to publish protects only the press. Itprotects "any person"; and one reason among others that it protectsany person is that a free press is essential to a free society.

  • In the Militia Act of 1792, militia is defined as "every freeable-bodied white male citizen … who is or shall be of theage of 18 years, and under the age of 45 years."12 That definition is expanded in theModern Militia Act (1956-58) to read "all able-bodied males atleast 17 years of age and … under 45 yrs of age [and] femalecitizens … who are members of the National Guard." The Actgoes on to state that "the classes of the militia are (1) theorganized militia, which consists of the National Guard and theNaval Militia; and (2) the unorganized militia, which consists of[all other members]."13 Ninth Circuit judge Andrew J. Kleinfeld wrotethat the "militia is like the jury pool, consisting of 'thepeople,' limited, like the jury pool, to those capable ofperforming the service."14

  • Next, consider this historical context: Anti-federalists wantedthree major changes prior to ratifying the Constitution: (1)include a Bill of Rights, (2) give states, not the federalgovernment, power to arm the militia, and (3) eliminate federalpower to maintain a standing army. Here was the federalistresponse, addressing those demands in reverse order: (1) Don'tworry about the federal government maintaining a standing army; thefederal militia power will obviate that need. (2) Don't worry aboutfederal control over the militia; armed individuals will obviatethose concerns. And (3) to ensure that individuals have a right tobe armed, we will include such a provision in a Bill of Rights. Sothe federalist position depended on the people being armed.Clearly, the addition of the Second Amendment could not have beenintended to eliminate that right. The Second Amendment's prefatoryclause was the federalists' way of pacifying anti-federalistswithout limiting the power of the federal government to maintain astanding 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 didnot mean heavily regulated, but rather properly, not overlyregulated. Looked at in that manner, the Second Amendment ensuredthat militias would not be improperly regulated - even weakened -by disarming the citizens who would be their members. The Framersfeared and distrusted standing armies; so they provided for amilitia (all able-bodied males above the age of 17) as acounterweight. But the framers also realized, in granting Congressnear-plenary power over the militia, that a select, armed subset -like today's National Guard - could be equivalent to a standingarmy. So they wisely crafted the Second Amendment to forbidCongress from disarming other citizens, thereby ensuring a"well-regulated" militia.

For those of us eagerly awaiting a Supreme Court pronouncementon the Second Amendment, for the first time in 66 years, theConstitution is on our side.

II. Does the Second Amendment Apply to the District ofColumbia?

In January 2004, U.S. District Judge Reggie B. Walton dismissedon standing grounds the claims of all but one plaintiff inSeegars v. Ashcroft, a Second Amendment challenge to theD.C. gun ban. With respect to one plaintiff deemed to havestanding, Judge Walton held that she was "unable to maintain aSecond Amendment challenge … and, in any event, the SecondAmendment does not apply to the District of Columbia."15

That conclusion echoed a prior concurring opinion inSandidge v. United States, a 1987 case that reached theD.C. Court of Appeals.16 Both the Sandidge concurrence and theSeegars opinion observed that the text of the SecondAmendment refers to the security of a "free State," but theDistrict of Columbia is not a state. "Nothing suggests that thefounders were concerned about 'free territories,' 'freeprotectorates,' or a 'free Seat of Government of the UnitedStates.' … Therefore, whatever may be said for the secondamendment and its reach within the several states, I conclude thatit does not apply to the Seat of Government."17

In light of the opinions in Sandidge andSeegars, I have been asked by the Committee to comment onthe proposition that the District of Columbia is not subject to theSecond Amendment.18 A few observations:

  • Sandidge is a local court decision, not binding onfederal courts. Moreover, the opinion in Sandidge is aconcurrence, not the holding of the court.

  • The conclusion in Seegars is dicta. JudgeWalton held that the plaintiff could not sustain a Second Amendmentchallenge for a number of reasons not relevant here. His statementabout the applicability of the Second Amendment to the District wasnot essential to his overall holding.

  • Seegars was reversed in relevant part (on standinggrounds) by the U.S. Court of Appeals,19 which has not established any precedent onthis issue within the D.C. Circuit.

  • Indeed, the D.C. Circuit in a 1998 case, Fraternal Order ofPolice v. United States, rejected a Second Amendment challengeby a policeman not able to possess a gun because he had beenconvicted of a misdemeanor domestic violence charge.20 The court found a rationalbasis for the gun restriction - a question the court need not haveaddressed if it believed that the Second Amendment was inapplicableto the District.

  • In Parker v. District of Columbia (about which morebelow), U.S. District Judge Emmet G. Sullivan dismissed a SecondAmendment challenge on the merits without invoking Judge Walton'sprior dicta that the District is exempt from the SecondAmendment.21

  • Even if the courts were to agree that the Second Amendment doesnot apply to the District of Columbia, Congress has plenary powerto enact legislation that forecloses violation of the SecondAmendment by the District of Columbia government. Nothing precludesCongress from granting rights to D.C. residents that exceed thosesecured by the U.S. Constitution.

  • The Constitution refers in multiple places to states as distinctpolitical components of the United States. For example, theauthority to train the militia is "reserv[ed] to the States"; "NoState shall enter into any treaty"; "nor shall any State depriveany person of life, liberty, or property, without due process oflaw." The terms "the States," "no State," and "any State" -denoting State governments - contain nouns without descriptiveadjectives. That should be contrasted with "free State," adescriptive and more generic term that refers to any politicalentity in which the citizens possess individual rights and enjoyliberty.22

  • In contemporaneous usage, a "free state" meant a "free society."That interpretation is confirmed by Webster's 1828 AmericanDictionary of the English Language, which defines "free," inpart, as follows: "In government, not enslaved; … notsubject to the arbitrary will of a sovereign or lord; as a freestate, nation or people." And Webster defined "state," in pertinentpart, as "A political body, or body politic; the whole body ofpeople united under one government, whatever may be the form of thegovernment."

  • Alexander Hamilton, in Federalist No. 29, wrote that an armedcitizenry is the best and only real defense against a standingarmy. He added: "Little more can reasonably be aimed at withrespect to the people at large than to have them properly armed andequipped." James Madison, in Federalist No. 46, stated that astanding army "would be opposed [by] a militia amounting to nearhalf a million citizens with arms in their hands." It is simplyinconceivable that Hamilton and Madison meant to exclude from the"people at large" and "near half a million citizens" theinhabitants 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 theSecond Amendment depends on a "collective rights" interpretationunder which the militia clause is a necessary condition of theright to keep and bear arms. But if the militia clause is merelyexplanatory, as argued above, then it is a sufficient, but notnecessary, condition to the exercise of Second Amendment rights.Accordingly, whether the District of Columbia is a state would beirrelevant.

  • The 14th Amendment begins with this crystalline statement: "Allpersons born or naturalized in the United States and subject to thejurisdiction thereof, are citizens of the United States." Ascitizens of the United States - even if not citizens of aparticular state - D.C. residents are entitled to the rights ofU.S. citizenship. To declare and reinforce one of those rights,Congress passed the Firearms Owners' Protection Act of 1986, whichstated that "the rights of citizens [include the right] to keep andbear arms under the second amendment to the United StatesConstitution.23Thus, the District's ban on possession of handguns by law-abidingresidents violates a right of citizenship guaranteed by the 14thAmendment, as interpreted by Congress - regardless whether theDistrict of Columbia is a state.

III. How Can District Residents Best Secure Their SecondAmendment Rights?

To vindicate the Second Amendment rights of D.C. residents, andguarantee that those rights will be permanently secured, aconstitutional challenge to the District's gun laws should bebrought in a federal court where there is no adverse judicialprecedent. Preferably, the challenge should be civil, not criminal;filed by sympathetic, law-abiding plaintiffs who simply want a gunin their home for self-defense.

In fact, such a case is now pending before the U.S. Court ofAppeals 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 beable to defend themselves in their own homes. The litigation,Parker v. District of Columbia, is not about machine gunsand assault weapons. It's about the right to own ordinary,garden-variety handguns. Nor do the plaintiffs argue for the rightto carry a gun outside the home. That's another question foranother day. This case is about a pistol in the home forself-defense.

Off and on over the years, Washington, D.C. has reclaimed itstitle as the nation's murder capital. Yet, the D.C. government hasbeen feckless in disarming violent criminals. At the same time,however, it has done a superb job of disarming decent, peaceableresidents.

For starters, no handgun can be registered in D.C. Even thosepistols registered prior to the District's 1976 ban cannot becarried from room to room in the home without a license, which isnever granted. Moreover, all firearms in the home, including riflesand shotguns, must be unloaded and either disassembled or bound bya trigger lock. In effect, no one in the District can possess afunctional firearm in his or her own residence. The law applies notjust to "unfit" persons like felons, minors, or the mentallyincompetent, but across-the-board to ordinary, honest, responsiblecitizens.

More than three dozen challenges to the D.C. law have alreadybeen filed but mostly by criminals serving longer sentences for gunpossession. The Parker case is different. The leadplaintiff, Shelly Parker, resides in a high-crime neighborhood inthe heart of the District. People living on her block are harassedrelentlessly by drug dealers and addicts. Ms. Parker decided to dosomething about it. She called the police time and again thenencouraged her neighbors to do the same. She organized blockmeetings to discuss the problem. For her audacity, Shelly Parkerwas labeled as a trouble-maker by the dealers, who threatened herat every opportunity.

In 2002, the back window of her car was broken. Then a largerock was thrown through her front window. Her security camera wasstolen from the outside of her house. A drug user drove his carinto her back fence. A year later, a dealer started banging on herdoor and tried to pry his way into her house, repeatedly yelling,"Bitch, I'll kill you, I live on this block too." Ms. Parker knowsthat the police are "not going to do very much about the drugproblem on my block." She would like to possess a functionalhandgun within her home for self-defense, but fears arrest,prosecution, incarceration, and fine because of D.C.'sunconstitutional gun ban.

A second plaintiff is a special police officer who carries ahandgun to provide security for the Thurgood Marshall JudicialCenter. But when he applied for permission to possess a handgunwithin his home, to defend his own household, the D.C. governmentturned him down. Other plaintiffs include a gay man who wasassaulted in another city on account of his sexual orientation.While walking to dinner with a co-worker, he encountered a group ofyoung men who started yelling, "faggot," "homo," "queer," "we'regoing to kill you and they'll never find your bodies." Ourplaintiff pulled his handgun out of his backpack and his assailantsretreated. He could not have done that in Washington, D.C.

The six plaintiffs in Parker v. District of Columbiaare asking a federal judge to prevent D.C. from barring theregistration of handguns, banning the possession of functionalfirearms within the home, and forbidding firearms from beingcarried from room to room. The plaintiffs live in the District, paytheir taxes in the District, and obey the laws in the District. Butthe District of Columbia says that if someone breaks into theirhouses, their only choice is to call 911 and pray that the policearrive in time. That's not good enough. The right to keep and beararms includes the right to defend your property, your family, andyour life. No government should be permitted to take that rightaway.

IV. What Role Should Congress Play in Securing SecondAmendment Rights?

Most of the public statements opposing The District of ColumbiaPersonal Protection Act are without merit. I address two of thembelow.

First, District of Columbia Del. Eleanor Holmes Norton arguesthat Congress must not intervene to overturn selected D.C. gun lawsbecause that would represent an impermissible "intrusion into ourself-government."24 Nonsense. Congress, as expressly set out inArticle I of the U.S. Constitution, has plenary power over theDistrict. Moreover, every member of Congress has an independent,affirmative obligation to uphold the Constitution. If theDistrict's handgun ban violates the Second Amendment - as it does -then Congress should act to defend D.C. residents' Second Amendmentrights.

Second, the Washington Post editorializes that Congressshould not use its plenary power in a supposedly local matterbecause "the District is hardly unique."25 Wrong again. The District is indeedunique, in the following respects:

  • The District's rate of gun violence is among the highest in thenation. Still, Washington, D.C. has the most draconian gun laws ofany major city. If "reasonable" regulations are those that prohibitbad persons from possessing massively destructive firearms, thenthe District's blanket prohibition of handguns is patentlyunreasonable.

  • Until 1868, when the 14th Amendment was ratified, the Bill ofRights applied only to the federal government. But unlike most ofthe other ten amendments, the applicability of the Second Amendmentto 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" inthe context of the Second Amendment), the complex, widely debatedquestion of "incorporation" need not be addressed when D.C. law ischallenged on Second Amendment grounds.

  • Felonies under D.C. law are prosecuted by the U.S. Attorney forthe District of Columbia, an employee of the Justice Department -the same Justice Department that is now on record favoring anindividual rights theory of the Second Amendment. To be sure,former Attorney General Ashcroft declared in an internal memorandumthat the Justice Department "will continue to defend theconstitutionality of all existing federal firearmslaws."26 But D.C.law, although enacted pursuant to congressional delegation, is notfederal law.

That said, there is a legitimate and important reason forCongress to step aside until Parker v. District ofColumbia is resolved. The Parker lawsuit was filed byupstanding D.C. residents who want to be able to defend themselvesand their families in their own homes. Parker is nowpending before the U.S. Court of Appeals for the D.C. Circuit. IfH.R. 1288 is enacted, the lawsuit will be dismissed as moot. Afterall, plaintiffs cannot challenge a law that no longer exists.

Otherwise, Parker could well be headed to the SupremeCourt; and that is where it belongs. The citizens of this countrydeserve a foursquare pronouncement from the nation's highest courtabout the real meaning of the Second Amendment for all Americans -not just the residents of D.C. Presently, because the Supreme Courthas not resolved its view of the Second Amendment, the right tokeep and bear arms under state law extends only as far as eachstate's constitution or statutes permit. That's unacceptable. Adisputable Second Amendment right without a legally enforceablefederal remedy is, in some states, no right at all.

Although the rights of D.C. residents can be secured by eitherlegislation or litigation, a narrow bill aimed at the D.C. Codewill do only part of the job. The bill could be repealed by thenext anti-gun Congress. And more important, the bill will have noeffect outside of the District.27 That means, of course, the bill will havenegligible impact on gun owners' rights when contrasted with anunambiguous proclamation, applicable across the nation, from theU.S. Supreme Court.

If the Court should mistakenly hold that the Second Amendmentprovides a collective rather than an individual right, that wouldbe the time for the legislative branch to ensure that D.C.residents have more protection than the judicial branch was willingto recognize. Until then, congressional action is premature.


1U.S. Department ofJustice, "Whether the Second Amendment Secures an IndividualRight," August 24, 2004, available at http://www.usdoj.gov/olc/secondamendment2.htm.
2Nelson Lund, A Primer onthe Constitutional Right to Bear Arms, Virginia Institute forPublic Policy Report No. 7, at 5 (citing Ronald S. Resnick,"Private Arms as the Palladium of Liberty: The Meaning of theSecond Amendment," 77 U. Det. Mercy L. Rev. 1, 4 (1999)).
3Silveira v. Lockyer, 328F.3d 567, 569-570 (9th Cir. 2003) (Kozinski, J., dissenting fromdenial of rehearing en banc).
4United States v. Emerson,270 F.3d 203, 260 (5th Cir. 2001).
5United States v. Haney, 264F.3d 1161, 1166 (10th Cir. 2001).
6United States v. Miller, 307U.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. AttorneyGeneral (July 8, 2002), copy available in my files.
9Quoted in Dan Gifford, "TheConceptual Foundations of Anglo-American Jurisprudence in Religionand Reason," 62 Tenn. L. Rev. 759, 789 (1995).
10Laurence H. Tribe andAkhil 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, 328F.3d 567, 582 (9th Cir. 2003) (Kleinfeld, J., dissenting).
15Seegars v. Ashcroft, 297F. Supp. 2d 201, 204 (D.D.C. 2004).
16Sandidge v. UnitedStates, 520 A.2d 1057 (D.C. 1987) (Nebeker, J., concurring).
17Id. at1059.
18For a definitivetreatment of this issue, see Stephen P. Halbrook, "Second-ClassCitizenship and the Second Amendment in the District of Columbia, 5GMU Civ. Rts. L.J. 105-178 (1995).
19Seegars v. Gonzales, 396F.3d 1248, 1256 (D.C. Cir. 2005).
20Fraternal Order of Policev. United States, 152 F.3d 998, 1002-1004 (D.C. Cir. 1998).
21Parker v. District ofColumbia, 311 F. Supp. 2d 103 (D.D.C 2004).
22The capitalization ofState within the Second Amendment and elsewhere among the citedconstitutional 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, 100Stat. 449, § 1(b)(1)(A).
24Press Release, Del.Eleanor Holmes Norton, Norton Ready to Fight Gun Repeal on HouseFloor Next Wednesday (Sept. 24, 2004) available at http://www.dcvote.org/media/release.cfm?releaseID=137.
25Gunning for theDistrict," Wash. Post, Sept. 15, 2004, A24.
26Quoted in Neely Tuckerand Arthur Santana, "U.S. Backs District Gun Law in Court: ArgumentDiffers from Ashcroft's," Wash. Post, Mar. 31, 2002, at A01.
27In my view, Congress isempowered to overturn gun control laws, anywhere in the UnitedStates, if those laws violate the Second Amendment. Section 5 ofthe 14th Amendment authorizes Congress to remedy state violationsof rights secured by the federal Constitution, providing that theremedy is "congruent and proportional" to the underlying violation.See City of Boerne v. Flores, 521 US 507, 530 (1997). Yet that isnot what Congress purports to accomplish by enacting H.R. 1288,which is directed exclusively at the District ofColumbia.

Robert A. Levy

Committee on Government Reform
United States House of Representatives