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District of Columbia v. Heller

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<!-- start content --><TABLE class="metadata plainlinks ambox ambox-notice"><TBODY><TR><TD class=ambox-image>

</TD><TD class=ambox-text>This article documents an ongoing legal case.

<SMALL>Information may change rapidly as the case progresses.</SMALL></TD></TR></TBODY></TABLE><TABLE class=infobox style="WIDTH: 25em"><TBODY><TR><TH style="FONT-STYLE: italic; BACKGROUND-COLOR: #6699ff">District of Columbia v. Heller</TH></TR><TR><TH style="TEXT-ALIGN: center">

Supreme Court of the United States</TH></TR><TR><TH style="BACKGROUND-COLOR: #6699ff">Argued March 18, 2008

</TH></TR><TR><TD><TABLE class=plainlinksneverexpand style="FONT-SIZE: 80%; MARGIN: auto"><TBODY><TR><TD vAlign=top>Full case name:</TD><TD style="FONT-STYLE: italic">District of Columbia, et al. v. Dick Anthony Heller</TD></TR><TR vAlign=top><TD>Docket #:</TD><TD>07-290</TD></TR><TR vAlign=top><TD></TD></TR><TR vAlign=top><TD>Citations:</TD><TD>U.S.</TD><TD></TD><TD></TD></TR><TR vAlign=top><TD style="valign: top">Prior history:</TD><TD>Provisions of the Firearms Control Regulations Act of 1975 infringe an individual's right to bear arms as protected by the Second Amendment. District Court for the District of Columbia reversed.</TD></TR><TR><TD></TD></TR><TR vAlign=top><TD style="valign: top">Procedural history:</TD><TD>Writ of Certiorari to the U.S. Court of Appeals for the District of Columbia Circuit</TD></TR><TR><TD></TD><TD></TD></TR><TR vAlign=top><TD style="valign: top">Argument:</TD><TD>Link to Oral Argument</TD></TR></TBODY></TABLE></TD></TR><TR><TH style="BACKGROUND-COLOR: #6699ff">Holding</TH></TR><TR><TD>Decision due June 26, 2008.</TD></TR><TR><TH style="BACKGROUND-COLOR: #6699ff">Court membership</TH></TR><TR><TD>Chief Justice: John Glover Roberts, Jr.

Associate Justices: John Paul Stevens, Antonin Scalia, Anthony Kennedy, David Souter, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito</TD></TR><TR><TH style="BACKGROUND-COLOR: #6699ff">Case opinions</TH></TR><TR align=left><TD></TD></TR><TR style="BACKGROUND: #6699ff; TEXT-ALIGN: center"><TH colSpan=2>Laws applied</TH></TR><TR><TD>U.S. Const. amend. II; D.C. Code § 7-2502.02(a)(4), § 22-4504, § 7-2507.02</TD></TR></TBODY></TABLE>District of Columbia v. Heller, No. 07-290, is a case pending before the Supreme Court of the United States. It is an appeal from Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007), a decision in which the United States Court of Appeals for the District of Columbia Circuit became the first federal appeals court in the United States to rule that a firearm ban was an unconstitutional infringement of the Second Amendment to the United States Constitution, and the second to expressly interpret the Second Amendment as protecting an individual right to possess firearms for private use.<SUP class=reference id=cite_ref-0>[1]</SUP>

The U.S. Supreme Court heard oral argument in the case on March 18, 2008<SUP class=reference id=cite_ref-1>[2]</SUP> and a decision is expected to be handed down on June 26, 2008.<SUP class=reference id=cite_ref-2>[3]</SUP>

<TABLE class=toc id=toc summary=Contents><TBODY><TR><TD>Contents

[hide]

• <LI class=toclevel-1>

1 Background of the case <LI class=toclevel-1>2 D.C. Circuit's decision

• <LI class=toclevel-2>

2.1 Henderson's dissent
2.2 Petition for rehearing

<LI class=toclevel-1>3 Supreme Court review

• 3.1 Oral argument

<LI class=toclevel-1>4 Non-party involvement

• <LI class=toclevel-2>

4.1 National Rifle Association
4.2 Brady Campaign to Prevent Gun Violence

<LI class=toclevel-1>5 Amicus curiae briefs <LI class=toclevel-1>6 Political reaction <LI class=toclevel-1>7 Scholarly commentary <LI class=toclevel-1>8 References

• 8.1 Other references

[*]9 External links

</TD></TR></TBODY></TABLE><SCRIPT type=text/javascript>//<![CDATA[ if (window.showTocToggle) { var tocShowText = "show"; var tocHideText = "hide"; showTocToggle(); } //]]></SCRIPT>

[edit] Background of the case

In 2002, Robert A. Levy, a Senior Fellow at the Cato Institute, began vetting plaintiffs with Clark M. Neily III for a planned Second Amendment lawsuit that he would personally finance. Although he personally had never owned a gun, as a Constitutional scholar and believer in individual rights, he had an academic interest in the subject and wanted to mirror his campaign on the work of Thurgood Marshall.<SUP class=reference id=cite_ref-3>[4]</SUP> They aimed for a group that would be diverse in terms of age, race, and economics. They eventually picked Shelly Parker, Tom Palmer, Gillian St. Lawrence, Tracey Ambeau, George Lyon and Dick Heller. Before the case, Levy knew only Tom Palmer, a colleague from the Cato Institute, and none of the six knew each other.<SUP class=reference id=cite_ref-4>[5]</SUP>

In February 2003, the six residents of Washington, D.C. filed a lawsuit in the United States District Court for the District of Columbia, challenging the constitutionality of provisions of the Firearms Control Regulations Act of 1975, a local law enacted pursuant to District of Columbia home rule. This law restricts residents from owning handguns, excluding those grandfathered in by registration prior to 1975 and those possessed by active and retired law enforcement officers. The law also requires that all firearms including rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock."<SUP class=reference id=cite_ref-5>[6]</SUP> The District Court dismissed the lawsuit.

[edit] D.C. Circuit's decision

On appeal, the U.S. Court of Appeals for the D.C. Circuit reversed the dismissal in a 2-1 decision, striking down provisions of the Firearms Control Regulations Act as unconstitutional. Judges Karen L. Henderson, Thomas B. Griffith and Laurence H. Silberman formed the Court of Appeals panel, with Senior Circuit Judge Silberman writing the court's opinion and Circuit Judge Henderson dissenting.

The court's opinion first addressed whether appellants have standing to sue for declaratory and injunctive relief in section II (slip op. at 5–12). The court concluded that the plaintiff Heller—who applied for a handgun permit but was denied—had standing.

<TABLE class=cquote style="MARGIN: auto; BORDER-TOP-STYLE: none; BORDER-RIGHT-STYLE: none; BORDER-LEFT-STYLE: none; BORDER-COLLAPSE: collapse; BACKGROUND-COLOR: transparent; BORDER-BOTTOM-STYLE: none"><TBODY><TR><TD style="PADDING-RIGHT: 10px; PADDING-LEFT: 10px; FONT-WEIGHT: bold; FONT-SIZE: 35px; PADDING-BOTTOM: 10px; COLOR: #b2b7f2; PADDING-TOP: 10px; FONT-FAMILY: 'Times New Roman',serif; TEXT-ALIGN: left" vAlign=top width=20>“</TD><TD style="PADDING-RIGHT: 10px; PADDING-LEFT: 10px; PADDING-BOTTOM: 4px; PADDING-TOP: 4px" vAlign=top>Essentially, the appellants claim a right to possess what they describe as "functional firearms", by which they mean ones that could be "readily accessible to be used effectively when necessary" for self-defense in the home. They are not asserting a right to carry such weapons outside their homes. Nor are they challenging the District's authority per se to require the registration of firearms.<SUP class=reference id=cite_ref-6>[7]</SUP></TD><TD style="PADDING-RIGHT: 10px; PADDING-LEFT: 10px; FONT-WEIGHT: bold; FONT-SIZE: 36px; PADDING-BOTTOM: 10px; COLOR: #b2b7f2; PADDING-TOP: 10px; FONT-FAMILY: 'Times New Roman',serif; TEXT-ALIGN: right" vAlign=bottom width=20>”</TD></TR></TBODY></TABLE>The court's summary of its substantive ruling on the right protected by the second amendment is given on page 46 of the slip opinion (at the end of section III):

<TABLE class=cquote style="MARGIN: auto; BORDER-TOP-STYLE: none; BORDER-RIGHT-STYLE: none; BORDER-LEFT-STYLE: none; BORDER-COLLAPSE: collapse; BACKGROUND-COLOR: transparent; BORDER-BOTTOM-STYLE: none"><TBODY><TR><TD style="PADDING-RIGHT: 10px; PADDING-LEFT: 10px; FONT-WEIGHT: bold; FONT-SIZE: 35px; PADDING-BOTTOM: 10px; COLOR: #b2b7f2; PADDING-TOP: 10px; FONT-FAMILY: 'Times New Roman',serif; TEXT-ALIGN: left" vAlign=top width=20>“</TD><TD style="PADDING-RIGHT: 10px; PADDING-LEFT: 10px; PADDING-BOTTOM: 4px; PADDING-TOP: 4px" vAlign=top>To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment's civic purpose, however, the activities it protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.</TD><TD style="PADDING-RIGHT: 10px; PADDING-LEFT: 10px; FONT-WEIGHT: bold; FONT-SIZE: 36px; PADDING-BOTTOM: 10px; COLOR: #b2b7f2; PADDING-TOP: 10px; FONT-FAMILY: 'Times New Roman',serif; TEXT-ALIGN: right" vAlign=bottom width=20>”</TD></TR></TBODY></TABLE>The court concluded:

<TABLE class=cquote style="MARGIN: auto; BORDER-TOP-STYLE: none; BORDER-RIGHT-STYLE: none; BORDER-LEFT-STYLE: none; BORDER-COLLAPSE: collapse; BACKGROUND-COLOR: transparent; BORDER-BOTTOM-STYLE: none"><TBODY><TR><TD style="PADDING-RIGHT: 10px; PADDING-LEFT: 10px; FONT-WEIGHT: bold; FONT-SIZE: 35px; PADDING-BOTTOM: 10px; COLOR: #b2b7f2; PADDING-TOP: 10px; FONT-FAMILY: 'Times New Roman',serif; TEXT-ALIGN: left" vAlign=top width=20>“</TD><TD style="PADDING-RIGHT: 10px; PADDING-LEFT: 10px; PADDING-BOTTOM: 4px; PADDING-TOP: 4px" vAlign=top>Once it is determined - as we have done - that handguns are 'Arms' referred to in the Second Amendment, it is not open to the District to ban them ... That is not to suggest that the government is absolutely barred from regulating the use and ownership of pistols. The protections of the Second Amendment are subject to the same sort of reasonable restrictions that have been recognized as limiting, for instance, the First Amendment.</TD><TD style="PADDING-RIGHT: 10px; PADDING-LEFT: 10px; FONT-WEIGHT: bold; FONT-SIZE: 36px; PADDING-BOTTOM: 10px; COLOR: #b2b7f2; PADDING-TOP: 10px; FONT-FAMILY: 'Times New Roman',serif; TEXT-ALIGN: right" vAlign=bottom width=20>”</TD></TR></TBODY></TABLE>The court also struck down the portion of the law that requires all firearms including rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock." The District argued that there is an implicit self-defense exception to these provisions, but the D.C. Circuit rejected this view, saying that the requirement amounted to a complete ban on functional firearms and prohibition on use for self-defense:<SUP class=reference id=cite_ref-dc-circuit-opinion_7-0>[8]</SUP>

<TABLE class=cquote style="MARGIN: auto; BORDER-TOP-STYLE: none; BORDER-RIGHT-STYLE: none; BORDER-LEFT-STYLE: none; BORDER-COLLAPSE: collapse; BACKGROUND-COLOR: transparent; BORDER-BOTTOM-STYLE: none"><TBODY><TR><TD style="PADDING-RIGHT: 10px; PADDING-LEFT: 10px; FONT-WEIGHT: bold; FONT-SIZE: 35px; PADDING-BOTTOM: 10px; COLOR: #b2b7f2; PADDING-TOP: 10px; FONT-FAMILY: 'Times New Roman',serif; TEXT-ALIGN: left" vAlign=top width=20>“</TD><TD style="PADDING-RIGHT: 10px; PADDING-LEFT: 10px; PADDING-BOTTOM: 4px; PADDING-TOP: 4px" vAlign=top>Section 7-2507.02, like the bar on carrying a pistol within the home, amounts to a complete prohibition on the lawful use of handguns for self-defense. As such, we hold it unconstitutional.</TD><TD style="PADDING-RIGHT: 10px; PADDING-LEFT: 10px; FONT-WEIGHT: bold; FONT-SIZE: 36px; PADDING-BOTTOM: 10px; COLOR: #b2b7f2; PADDING-TOP: 10px; FONT-FAMILY: 'Times New Roman',serif; TEXT-ALIGN: right" vAlign=bottom width=20>”</TD></TR></TBODY></TABLE>

[edit] Henderson's dissent

In dissent, Judge Henderson wrote:

<TABLE class=cquote style="MARGIN: auto; BORDER-TOP-STYLE: none; BORDER-RIGHT-STYLE: none; BORDER-LEFT-STYLE: none; BORDER-COLLAPSE: collapse; BACKGROUND-COLOR: transparent; BORDER-BOTTOM-STYLE: none"><TBODY><TR><TD style="PADDING-RIGHT: 10px; PADDING-LEFT: 10px; FONT-WEIGHT: bold; FONT-SIZE: 35px; PADDING-BOTTOM: 10px; COLOR: #b2b7f2; PADDING-TOP: 10px; FONT-FAMILY: 'Times New Roman',serif; TEXT-ALIGN: left" vAlign=top width=20>“</TD><TD style="PADDING-RIGHT: 10px; PADDING-LEFT: 10px; PADDING-BOTTOM: 4px; PADDING-TOP: 4px" vAlign=top>To sum up, there is no dispute that the Constitution, case law and applicable statutes all establish that the District is not a State within the meaning of the Second Amendment. Under United States v. Miller, 307 U.S. at 178, the Second Amendment's declaration and guarantee that "the right of the people to keep and bear Arms, shall not be infringed" relates to the Militia of the States only. That the Second Amendment does not apply to the District, then, is, to me, an unavoidable conclusion.<SUP class=reference id=cite_ref-8>[9]</SUP></TD><TD style="PADDING-RIGHT: 10px; PADDING-LEFT: 10px; FONT-WEIGHT: bold; FONT-SIZE: 36px; PADDING-BOTTOM: 10px; COLOR: #b2b7f2; PADDING-TOP: 10px; FONT-FAMILY: 'Times New Roman',serif; TEXT-ALIGN: right" vAlign=bottom width=20>”</TD></TR></TBODY></TABLE>

[edit] Petition for rehearing

In April 2007, the District and Mayor Adrian Fenty petitioned for rehearing en banc, arguing that the ruling creates inter- and intra-jurisdictional conflict.<SUP class=reference id=cite_ref-petition_9-0>[10]</SUP> On May 8, 2007, the United States Court of Appeals for the D.C. Circuit denied the request to rehear the case, by a 6-4 vote.

[edit] Supreme Court review

Both the defendants and the plaintiffs petitioned the United States Supreme Court to hear the case. The questions posed for review by the petitioner (the District of Columbia) differed significantly from those posed by the respondent (Heller). The District of Columbia's petition stated that the question presented was, "Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns." Heller replied that the question was broader, to wit, "Whether the Second Amendment guarantees law-abiding, adult individuals a right to keep ordinary, functional firearms, including handguns, in their homes." As discussed below, the Supreme Court adopted neither question, but came closer to the question posed by Heller in framing the question to include review of the District's prohibitions against possession of all types of firearms, and not just handguns.

The District of Columbia and Mayor Fenty petitioned the Supreme Court on September 4, 2007, to overturn a portion of the lower court's ruling. The Washington Post noted that most legal experts believed the Supreme Court would likely accept the case. Now that the Court has granted certiorari, this will likely be the first time since the 1939 case United States v. Miller that the Supreme Court has directly addressed the scope of the Second Amendment.<SUP class=reference id=cite_ref-10>[11]</SUP>

Five of the original plaintiffs in the case cross-petitioned the Supreme Court on September 10, 2007 to reinstate their legal claims against the District. The appellate court ruling held that of the original six plaintiffs, only Heller had the necessary standing to challenge the law. The five plaintiffs other than Heller now ask that the court restore their case against the district. <SUP class=reference id=cite_ref-11>[12]</SUP>

The Supreme Court agreed to hear the case on November 20, 2007.<SUP class=reference id=cite_ref-12>[13]</SUP> The court has rephrased the question to be decided as follows:

<TABLE class=cquote style="MARGIN: auto; BORDER-TOP-STYLE: none; BORDER-RIGHT-STYLE: none; BORDER-LEFT-STYLE: none; BORDER-COLLAPSE: collapse; BACKGROUND-COLOR: transparent; BORDER-BOTTOM-STYLE: none"><TBODY><TR><TD style="PADDING-RIGHT: 10px; PADDING-LEFT: 10px; FONT-WEIGHT: bold; FONT-SIZE: 35px; PADDING-BOTTOM: 10px; COLOR: #b2b7f2; PADDING-TOP: 10px; FONT-FAMILY: 'Times New Roman',serif; TEXT-ALIGN: left" vAlign=top width=20>“</TD><TD style="PADDING-RIGHT: 10px; PADDING-LEFT: 10px; PADDING-BOTTOM: 4px; PADDING-TOP: 4px" vAlign=top>The petition for a writ of certiorari is granted limited to the following question: Whether the following provisions, D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02, violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?</TD><TD style="PADDING-RIGHT: 10px; PADDING-LEFT: 10px; FONT-WEIGHT: bold; FONT-SIZE: 36px; PADDING-BOTTOM: 10px; COLOR: #b2b7f2; PADDING-TOP: 10px; FONT-FAMILY: 'Times New Roman',serif; TEXT-ALIGN: right" vAlign=bottom width=20>”</TD></TR></TBODY></TABLE>

[edit] Oral argument

The Supreme Court heard oral argument in the case on March 18, 2008, and is expected to publish its decision in late June of 2008. Both the transcript<SUP class=reference id=cite_ref-13>[14]</SUP> and the audio<SUP class=reference id=cite_ref-14>[15]</SUP> of the argument have been released. Each side was initially allotted 30 minutes to argue its case, with U.S. Solicitor General Paul D. Clement allotted 15 minutes to present the federal government's views<SUP class=reference id=cite_ref-wp-oral-args_15-0>[16]</SUP>. During the argument, however, extra time was extended to the parties, and the argument ran 23 minutes over the allotted time.<SUP class=reference id=cite_ref-16>[17]</SUP>

Walter E. Dellinger of the law firm O’Melveny & Myers argued the District's side before the Supreme Court. Mr. Dellinger was assisted by Thomas Goldstein of the Akin Gump law firm, Robert Long of the Covington & Burling law firm and D.C. Solicitor General Todd Kim. The law firms assisting the District are working pro bono.<SUP class=reference id=cite_ref-17>[18]</SUP>

Alan Gura, of the DC Based law firm Gura & Possessky, is lead counsel for Mr. Heller and argued on his behalf before the Supreme Court.<SUP class=reference id=cite_ref-18>[19]</SUP> Robert Levy, a senior fellow at the Cato Institute and Clark Neily, a senior attorney at the Institute for Justice, are his co-counsel.<SUP class=reference id=cite_ref-19>[20]</SUP> <SUP class=reference id=cite_ref-Greg_Stohr_Bloomberg.com_20-0>[21]</SUP>

[edit] Non-party involvement

This case has faced opposition and involvement both from groups for and against expanded gun rights. The National Rifle Association was initially not supportive of the case because it feared it might not be successful. The NRA has since reconciled with the plaintiffs. The Brady Campaign to Prevent Gun Violence lobbied to have DC gun laws changed so the case would be moot and not eligible to be heard by the Supreme Court.

[edit] National Rifle Association

Attorney Alan Gura, in a 2003 filing, used the term "sham litigation" to describe the NRA's attempts to have Parker (aka Heller) consolidated with its own case challenging the D.C. law. Gura also stated that "the NRA was adamant about not wanting the Supreme Court to hear the case".<SUP class=reference id=cite_ref-21>[22]</SUP> These concerns were based on NRA lawyers' assessment that the justices at the time the case was filed might reach an unfavorable decision.<SUP class=reference id=cite_ref-22>[23]</SUP> Cato Institute senior fellow Robert Levy, co-counsel to the Parker plaintiffs, has stated that the Parker plaintiffs "faced repeated attempts by the NRA to derail the litigation."<SUP class=reference id=cite_ref-23>[24]</SUP>

Wayne LaPierre, the NRA’s chief executive officer, confirmed the NRA's misgivings. “There was a real dispute on our side among the constitutional scholars about whether there was a majority of justices on the Supreme Court who would support the Constitution as written,” Mr. LaPierre said. Both Levy and LaPierre said the NRA and Mr. Levy’s team were now on good terms.<SUP class=reference id=cite_ref-24>[25]</SUP>

Elaine McArdle wrote in the Harvard Law Bulletin "If Parker is the long-awaited “clean” case, one reason may be that proponents of the individual-rights view of the Second Amendment—including the National Rifle Association, which filed an amicus brief in the case—have learned from earlier defeats, and crafted strategies to maximize the chances of Supreme Court review." The NRA did eventually support the litigation by filing an amicus brief with the Court arguing that the plaintiffs in Parker had standing to sue and that the D.C. ban was unconstitutional under the Second Amendment.<SUP class=reference id=cite_ref-McArdle_25-0>[26]</SUP>

Chris Cox, executive director of the NRA's Institute for Legislative Action, had indicated support of federal legislation which would repeal the D.C. gun ban. Opponents of the legislation argued that this would have rendered the Parker case moot, and effectively eliminated the possibility that the case would be heard by the Supreme Court.<SUP class=reference id=cite_ref-26>[27]</SUP>

[edit] Brady Campaign to Prevent Gun Violence

The Brady Campaign to Prevent Gun Violence is opposed to the arguments made by the plaintiffs in Parker, and filed amicus briefs against those arguments in both the District and Circuit courts.

Paul Helmke, the president of the Brady Campaign, suggested to D.C. before the Court granted certiorari that it modify its gun laws rather than appeal to the Supreme Court.<SUP class=reference id=cite_ref-27>[28]</SUP> Helmke has written that if the Supreme Court upholds the Circuit court ruling, it "could lead to all current and proposed firearms laws being called into question."<SUP class=reference id=cite_ref-28>[29]</SUP>

[edit] Amicus curiae briefs

Due to the controversial nature of the case, it has garnered much attention from many groups on both sides of the gun rights issue. Many of these groups have filed amicus curiae ("friend of the court") briefs, about 47 urging the court to affirm the case and about 20 to remand it.<SUP class=reference id=cite_ref-29>[30]</SUP>

A majority of the members of Congress<SUP class=reference id=cite_ref-30>[31]</SUP> have signed the friend of the court brief authored by Stephen P. Halbrook advising that the case be affirmed overturning the ban on handguns not otherwise restricted by Congress.<SUP class=reference id=cite_ref-Holbrook_31-0>[32]</SUP> Vice President Dick Cheney, in what may be an unprecedented departure for a vice president, has joined in this brief, acting in his role as President of the United States Senate, and breaking with the administration's official position.<SUP class=reference id=cite_ref-32>[33]</SUP> Presumptive Republican nominee for President, Arizona Senator John McCain, has also signed the brief. Presumptive Democratic nominee, Illinois Senator Barack Obama, has not.<SUP class=reference id=cite_ref-presidential_candidates_33-0>[34]</SUP>

A majority of the states have signed the brief of Texas Attorney General Greg Abbott advising that the case be affirmed while at the same time emphasizing that the states have a strong interest in maintaining each of the states' laws prohibiting and regulating firearms.<SUP class=reference id=cite_ref-Texas_34-0>[35]</SUP><SUP class=reference id=cite_ref-35>[36]</SUP><SUP class=reference id=cite_ref-36>[37]</SUP>

A number of organizations have signed friend of the court briefs advising that the case be remanded, including the United States Department of Justice<SUP class=reference id=cite_ref-USDOJ_37-0>[38]</SUP>, Attorneys General of New York, Hawaii, Maryland, Massachusetts, New Jersey, California, and Puerto Rico.<SUP class=reference id=cite_ref-38>[39]</SUP> Additionally, friend of the court briefs to remand have been filed by a spectrum of religious and anti-violence groups,<SUP class=reference id=cite_ref-39>[40]</SUP> a number of cities and mayors,<SUP class=reference id=cite_ref-40>[41]</SUP> and many police chiefs and law enforcement organizations.<SUP class=reference id=cite_ref-41>[42]</SUP>

[edit] Political reaction

Several politicians from the state of Montana, including the Montana Secretary of State, have signed a joint resolution asserting that, if the Supreme Court rules against an individual-rights interpretation of the second amendment, the compact between the United States and Montana would be violated, and that the state "reserves all usual rights and remedies under historic contract law" should that occur. <SUP class=reference id=cite_ref-42>[43]</SUP><SUP class=reference id=cite_ref-43>[44]</SUP>

[edit] Scholarly commentary

Various experts have expressed opinions on the D.C. Circuit's decision.

Harvard Law School professor Laurence Tribe contends that the Second Amendment protects an individual right, and predicted that if Parker is reviewed by the Supreme Court "there’s a really quite decent chance that it will be affirmed."<SUP class=reference id=cite_ref-McArdle_25-1>[26]</SUP> However, Professor Tribe has also argued that the District's ban on one class of weapons does not violate the Second Amendment even under an individual rights view.<SUP class=reference id=cite_ref-44>[45]</SUP>

Professor Erwin Chemerinsky, then of Duke Law School and now dean of University of California, Irvine, argued that the District of Columbia's handgun laws, even assuming an "individual rights" interpretation of the Second Amendment, could be justified as reasonable regulations and thus upheld as constitutional. Professor Chemerinsky believes that the regulation of guns should be analyzed in the same way "as other regulation of property under modern constitutional law" and "be allowed so long as it is rationally related to achieving a legitimate government purpose."<SUP class=reference id=cite_ref-45>[46]</SUP>

Cato Institute senior fellow Robert Levy, co-counsel to the Parker plaintiffs, agreed with the court's ruling but describes that his interpretation of the Second Amendment would not preclude all governmental regulation of private ownership of weapons:

<TABLE class=cquote style="MARGIN: auto; BORDER-TOP-STYLE: none; BORDER-RIGHT-STYLE: none; BORDER-LEFT-STYLE: none; BORDER-COLLAPSE: collapse; BACKGROUND-COLOR: transparent; BORDER-BOTTOM-STYLE: none"><TBODY><TR><TD style="PADDING-RIGHT: 10px; PADDING-LEFT: 10px; FONT-WEIGHT: bold; FONT-SIZE: 35px; PADDING-BOTTOM: 10px; COLOR: #b2b7f2; PADDING-TOP: 10px; FONT-FAMILY: 'Times New Roman',serif; TEXT-ALIGN: left" vAlign=top width=20>“</TD><TD style="PADDING-RIGHT: 10px; PADDING-LEFT: 10px; PADDING-BOTTOM: 4px; PADDING-TOP: 4px" vAlign=top>Even the NRA concedes that you can’t have mad men running around with weapons of mass destruction. So there are some restrictions that are permissible and it will be the task of the legislature and the courts to ferret all of that out and draw the lines. I am sure, though, that outright bans on handguns like they have in D.C. won’t be permitted. That is not a reasonable restriction under anybody’s characterization. It is not a restriction, it’s a prohibition.<SUP class=reference id=cite_ref-46>[47]</SUP></TD><TD style="PADDING-RIGHT: 10px; PADDING-LEFT: 10px; FONT-WEIGHT: bold; FONT-SIZE: 36px; PADDING-BOTTOM: 10px; COLOR: #b2b7f2; PADDING-TOP: 10px; FONT-FAMILY: 'Times New Roman',serif; TEXT-ALIGN: right" vAlign=bottom width=20>”</TD></TR></TBODY></TABLE>

[Dr D]

AN EXTRA-SESSION RESOLUTION OF INDIVIDUAL LEGISLATORS OF THE 60TH MONTANA LEGISLATURE AND OTHER ELECTED MONTANA OFFICIALS URGING THE UNITED STATES SUPREME COURT THAT ANY "COLLECTIVE RIGHTS" HOLDING IN D.C. V. HELLER WILL VIOLATE MONTANA'S COMPACT WITH THE UNITED STATES, THE CONTRACT BY WHICH MONTANA ENTERED THE UNION IN 1889.

WHEREAS, the United States Supreme Court (Court) has agreed to review and decide the case of D.C. v. Heller appealed to it from the D.C. Circuit Court of Appeals;

WHEREAS, the Court has agreed to consider the question, "Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes";

WHEREAS, when the Court determines in Heller whether or not the Second Amendment secures an individual right, the Court will establish precedent that will affect the State of Montana and the political rights of the citizens of Montana;

WHEREAS, when Montana entered into statehood in 1889, that entrance was accomplished by a contract between Montana and the several states, a contract known as The Compact With The United States (Compact), found today as Article I of the Montana Constitution;

WHEREAS, with authority from Congress acting as agent for the several states, President Benjamin Harrison approved the Montana Constitution in 1889, which secured the right of "any person" to bear arms, clearly intended as an individual right and an individual right deemed consistent then with the Second Amendment by the parties to the contract;

WHEREAS, the wording of the Second Amendment and the Montana right to bear arms, now Article II, Section 12, exist today in form and wording identical to that agreed upon by the citizens of Montana and the United States in 1889 and unchanged since then; and

WHEREAS, a contract, compact or treaty must be implemented consistent with the terms and understandings in place at the time entered into.

THEREFORE BE IT RESOLVED by the undersigned members of the 60th Montana Legislature as follows:

1. That any form of "collective rights" holding by the Court in Heller will offend the Compact; and

2. That the Second Amendment and the Montana right to bear arms are both statements securing a preexisting right from government interference, and do not confer any boon of government upon the people; and

3. The level of review for the Montana right to bear arms and for the Second Amendment are specified within those declared rights -- "shall not be infringed" for the Second Amendment, and "shall not be called in question" for the Montana right to bear arms;

4. Montana reserves all usual rights and remedies under historic contract law if its Compact should be violated by any "collective rights" holding in Heller;

5. The undersigned incorporate by reference here a more thorough, attached explanation of the contract argument advanced; and

6. The undersigned legislators appreciate the attention of the Court to this argument on behalf of Montana and its citizens.

Supporting argument

Elected officials in concurrence:

Current list

[Dr D]

Montana Secretary of StateBrad Johnson'sComment in the Washington Times

<BIG><BIG>

</BIG></BIG>

<BIG><BIG><SMALL>A .pdf file of the letter Johnson sent to the Washington Times is

HERE.

The link to the Washington Times print of Johnson's letter is HERE.

Brad Johnson's news release about this (MSWord, .doc file) is HERE.

The text of Johnson's letter, as printed, is as follows:

</SMALL></BIG></BIG>Second Amendment an individual right

The U.S. Supreme Court will soon decide D.C. v. Heller, the first case in more than 60 years in which the court will confront the meaning of the Second Amendment to the U.S. Constitution. Although Heller is about the constitutionality of the D.C. handgun ban, the court's decision will have an impact far beyond the District ("Promises breached," Op-Ed, Thursday).

The court must decide in Heller whether the Second Amendment secures a right for individuals to keep and bear arms or merely grants states the power to arm their militias, the National Guard. This latter view is called the "collective rights" theory.

A collective rights decision by the court would violate the contract by which Montana entered into statehood, called the Compact With the United States and archived at Article I of the Montana Constitution. When Montana and the United States entered into this bilateral contract in 1889, the U.S. approved the right to bear arms in the Montana Constitution, guaranteeing the right of "any person" to bear arms, clearly an individual right.

There was no assertion in 1889 that the Second Amendment was susceptible to a collective rights interpretation, and the parties to the contract understood the Second Amendment to be consistent with the declared Montana constitutional right of "any person" to bear arms.

As a bedrock principle of law, a contract must be honored so as to give effect to the intent of the contracting parties. A collective rights decision by the court in Heller would invoke an era of unilaterally revisable contracts by violating the statehood contract between the United States and Montana, and many other states

Numerous Montana lawmakers have concurred in a resolution raising this contract-violation issue. It's posted at progunleaders.org. The United States would do well to keep its contractual promise to the states that the Second Amendment secures an individual right now as it did upon execution of the statehood contract.

BRAD JOHNSON

Montana secretary of state

Helena, Mont.

[Dr D]

List of elected Montana officials concurring in the Resolution concerning Montana's contract rights and the Second Amendment in the D.C. v. Heller case:

Congressman Denny Rehberg, Montana-At Large

1201 Grand Avenue, Suite #1

Billings, MT 59102

406-256-1019

Brad Johnson

Montana Secretary of State

Capitol Station

Helena, Montana 59620

406-444-2807

Senator Aubyn Curtiss, Senate District 1

P.O. Box 216

Fortine, Montana 59918

406-882-4448

Senator Jerry O'Neil, Senate District 3

985 Walsh Road

Columbia Falls, Montana 59912

406-892-7602

Senator Greg Barkus, Senate District 4

P.O. Box 2647

Kalispell, Montana 59903

406-755-8362

Senator Verdell Jackson, Senate District 5

555 Wagner Lane

Kalispell, Montana 59901

406-756-8344

Senator John Brueggeman, Senate District 6

39341 Lakeview Drive

Polson, MT 59860

406-883-2395

Senator Jim Elliott, Senate District 7

Chair, Committee on Committees and Taxation Committee

100 Trout Creek Road

Trout Creek, Montana 59874

406-827-3671

Senator Joe Tropila, Senate District 13

Chair, Fish and Game Committee

209 2nd Street N.W.

Great Falls, Montana 59404

406-453-1124

Senator Jerry Black, Senate District 14

445 O'Haire Boulevard

Shelby, Montana 59474

406-434-5363

Senator Jim Peterson, Senate District 15

RR1, Box 2

Buffalo, Montana 59418

406-374-2277

Senator Lane Larson, Senate District 22

1417 Cedar Canyon Road

Billings, Montana 59101

406-256-6316

Senator Roy Brown, Senate District 25

P.O. Box 22273

Billings, Montana 59104

406-252-5554

Senator Jeff Essmann, Senate District 28

2101 Grand Avenue # 5

Billings, Montana 59108

406-259-8404

Senator Joe Balyeat, Senate District 34

6909 Rising Eagle Road

Bozeman, Montana 59715

406-586-1838

Senator Gary Perry, Senate District 35

3325 W. Cedar Meadow Lane

Manhattan, Montana 59741

406-282-7477

Senator Terry Murphy, Senate District 39

893 boulder Cutoff Road

Cardwell, Montana 59721

406-285-6937

Representative Chas Vincent, House District 2

5957 Champion Road

Libby, Montana 59923

406-293-1575

Representative Bill Beck, House District 6

P.O. Box 2049

Whitefish, Montana 59937

406-862-2022

Representative Bill Jones, House District 9

567 East Village Drive

Bigfork, Montana 59911

406-837-5760

Representative Mark Blasdel, House District 10

P.O. Box 291

Somers, Montana 59932

406-857-2010

Representative Rick Jore, House District 12

30488 Mount Harding Lane

Ronal, Montana 59864

406-644-2542

Representative Gordon R. Hendrick, House District 14

P.O. Box 262

Superior, Montana 59872

406-822-4938

Representative Rick Ripley, House District 17

8920 Montana Highway 200

Wolf Creek, Montana 59648

406-562-3505

Representative Jesse O'Hara, House District 18

2221 Holly Court

Great Falls, Montana 59404

406-761-0088

Representative Ed Butcher, House District 29

7550 Butcher Rd

Winifred, Montana 59489

406-462-5627

Representative Wayne Stahl, House District 35

P.O. Box 345

Saco, Montana 59261

406-527-3321

Representative Ed Hilbert, House District 38

120 Hillcrest Avenue

Glendive, Montana 59330

406-377-1630

Representative Bill McChesney, House District 40

316 Missouri Avenue

MilesCity, Montana 59301

406-853-2826

Representative Alan Olson, House District 45

18 Halfbreed Creek Road

Roundup, Montana 59072

406-323-3341

Representative Ken Peterson, House District 46

424 48th Street West

Billings, Montana 59106

406-534-2376

Representative Tom McGillvray, House District 50

3642 Donna Drive

Billings, Montana 59102

406-656-7542

Representative Arlene Becker, House District 52

1440 Lewis Avenue

Billings, Montana 59102

406-245-7256

Representative Rep. Michael Lange, House District 55

208 Fair Park Drive

Billings, Montana 59102

406-651-2084

Representative Krayton Kerns, House District 58

1408 Golf Course Road

Laurel, Montana 59044

406-628-8438

Representative Bob Ebinger, House District 62

128 South Yellowstone Street

Livingston, Montana 59047

406-222-0438

Representative Scott Sales, House District 68

Speaker of the House

5200 Bostwick Road

Bozeman, Montana 59715

406-587-0047

Representative Jack Wells, House District 69

150 Coulee Drive

Bozeman, Montana 59718

406-586-7872

Representative Roger Koopman, House District 70

811 South Tracy Avenue

Bozeman, Montana 59715

406-587-7555

Representative Diane Rice, House District 71

Chair, House Judiciary Committee

P.O. Box 216

Harrison, Montana 59735

406-685-3468

Representative Debby Barrett, House District 72

Speaker Pro Tempore

18580 Hwy. 324

Dillon , Montana 59725

406-681-3177

Representative Scott Mendenhall. House District 77

Chair, Business and Labor Committee

214 Solomon Mountain Road

Clancy, Montana 59634

406-933-5831

Representative Gary MacLaren, House District 89

429 Curlew Orchard Road

Victor, Montana 59875

406-642-3887

Representative Ray Hawk, House District 90

N.W. 4878 Hobbitt Lane

Florence, Montana 59833

406-777-5120

[Dr D]

We live in interesting times. If the supreme court decides that its a group right rather than an individual right the contract that made montana a state is null and void. -----OR---- Contracts may now be interpreted liberally after the fact thus destroying contract law in its entirety.

Cool stuff!

Does this mean I will be a Montanan and not a US citizen? HMMMMMM

[b0ardski]

I'm a Montanan before american, and I think we should be our own country:eek:

The bill of rights has already been negated by the stacked supreme court/executive branch, . Can you say patriot act, I knew you could. thanks Dick.

[Justin A.]

I consider myself New Hampshirian (New Hampshireite?) before American pretty much all the time. It's one of those things with these independent-minded states.

[EnisiWaya]

If you break into my house and even threaten one of my wifes 8 guard cats ( a 30 pound Maine Coon cat is a formidable opponent even for a 200 lb intruder) <btw most="" dogs="" cross="" over="" other="" side="" of="" the="" street="" to="" go="" by=""> I will shoot you. Our animals when on our premises are afforded the same rights of protection by firearms from lethal threat under NH law as our children.

However I have been told by a past Police Chief and a friend who is a State trooper,,, if they fall back out through the door way to drag them back into the house before they get here.

Most of us Granite Staters that live other than in Nausea (a part of MA who's residents call "Nashua, NH" that gets to have NH car tags), Take our tag statement very seriously. "Live Free or Die"

grandpa wolf/

Chase:eplus2:</btw>

[EnisiWaya]

Sent an email to a fellow Granite Stater and then thought I would share the meat of part of it with you guys too.

we GSers (Granite Staters) don't intend to take too much BS Right buddy?

I know EZE is Probably right in with us too, he lives in the next town.

I don't think the folks realize you can carry a handgun in a holster in public in NH as long as it is not concealed even with out a permit.

For concealed carry the law is written as "MUST ISSUE" so the local police chief has to go to the local court and present overwhelming evidence that you would be a public danger to deny you a concealed weapons permit.

Most of Florida's and NM 's changes in the last ten years are modeled on NH rules and law from what I have heard.

GWS/Chase:eplus2:

[skatha]

I'm sure the guy who marched into work in Kentucky a few nights ago and killed his former boss and 5 other innocent former co-workers would agree with you-it's important to be able to carry a gun at all times.

I spent every one of my shifts in an ER somewhere wondering which drug addled patient I just pissed off was going to come in later and shoot me.

Personally, I feel the Bill of Rights was written to protect a community's ability to form a militia, that was the original problem during the War of Independence. Not to insure that Johnny American could buy a 100 Tech-Nines and ship them down to Mexico for their American inspired drug war, as is the case now. But that's another soap-box

Oh, and I already know that guns don't kill people, people kill people. It's just a helluva lot harder to do it with anything else.

[C5 Golfer]

Wash DC people should be happy--

http://www.msnbc.msn.com/id/25390404

[Gecko]

Montana stays a state...Wall St can breath a sigh of relief

[C5 Golfer]

I just called the moving company and cancelled my move to Montana. Took down the For Sale sign in front of the house. :):)

[bobdea]

a real way for your state to show independence is to refuse federal money.

Billings will be the new tijuana!

I actually am for some states braking off from the union as long as separate currencies are not issued because that might be bad for everyone. There's a few states that the general population seems to think they'd be better off and be that true or not if they can pull a majority vote they should have the right to break off.

[pebu]

There's a few states that I wish would break off AND SINK INTO THE OCEAN.

[Dr D]

:lol:

There's a few states that I wish would break off AND SINK INTO THE OCEAN.

:lol::lol::lol::lol::lol::lol::lol:

[Dr D]

a real way for your state to show independence is to refuse federal money.

Billings will be the new tijuana!

I actually am for some states braking off from the union as long as separate currencies are not issued because that might be bad for everyone. There's a few states that the general population seems to think they'd be better off and be that true or not if they can pull a majority vote they should have the right to break off.

We have regular disagreements with DC on a number of issues. Currently as Far as I know we are the only state that will license ATV and mini trucks from japan etc (50 mpg +) for road use. It is a clear violation of Federal law and we don't care. we can get good mileage and still perform duties requiring a dump bed. I have seen gators and golf carts road licensed as well.

You also might remmber the whole speed limit thing a while back. It was an out of state jack ass that screwed that up as well.

[dingbat]

Sounds like Montana would be perfect if it had an ocean.

Congratulations on the confirmation of your individual right to keep and bear arms!

[Gecko]

There's a few states that I wish would break off AND SINK INTO THE OCEAN.

Florida and California (but we need to keep Mammouth and Lake Tahoe)

[C5 Golfer]

Florida and California (but we need to keep Mammouth and Lake Tahoe)

how about Jersey and New Yawk

[dingbat]

how about Jersey and New Yawk

Gadzooks Man! and let Lakes Erie and Ontario drain into the Atlantic? There's precious little keeping the Canadians out as it is!

[Jack M]

thank god the court got it right.

[bobdea]

We have regular disagreements with DC on a number of issues. Currently as Far as I know we are the only state that will license ATV and mini trucks from japan etc (50 mpg +) for road use. It is a clear violation of Federal law and we don't care. we can get good mileage and still perform duties requiring a dump bed. I have seen gators and golf carts road licensed as well.

You also might remmber the whole speed limit thing a while back. It was an out of state jack ass that screwed that up as well.

****, I'd kill for one of those minitrucks.

Has montana put up a vote to leave the union?

Is that legal? we had a civil war about it so I assume not....

[Justin A.]

Is that legal? we had a civil war about it so I assume not....

It's written into NH's constitution that we have the right to revolt if the government no longer serves the common interest.

Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.

More relating to the issue at hand, the NH Bill of rights has pretty much no wiggle room when it comes to the right to bear arms

All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state.

God I love this state.

[Dr D]

It's written into NH's constitution that we have the right to revolt if the government no longer serves the common interest.

More relating to the issue at hand, the NH Bill of rights has pretty much no wiggle room when it comes to the right to bear arms

God I love this state.

Montana's is almost word for word the same.

As far as seccesion goes. I personally believe that Lincoln was wrong and that he was the beginning of the federal power that we are all now having to deal with. The original "union" was for the benefit of the several sovreign states not the consolidation into one soveriegn state. This is supposed to be a republic not a democracy. A democracy can last only until the people discover that they can vote themselves money out of the treasury then it must fall. WE sort of have that figured out! WE currently have a 49 to 51 split on most issues. When that ratio widens in favor of more government programs and wealth redistribution we will fall back into tyrany. In many ways we already have. You can't even tell the two parties apart anymore on most issues and certainly by performance. The very things we vote against crop up in the performance of our own party members. (that statement is true from either perspective)

In montana and NH we still run things the way they were originally intended to run and we fight many battles to preserve that. Lots of folks moving in from california etc that love our way of life enough to move here but insist on changing it when they get here.

incrementalism is a bitch