DC Court of Appeals March 9, 2007 opinion
By: United States Court of Appeals

Argued December 7, 2006 Decided March 9, 2007

No. 04-7041

v.

Appeal from the United States District Court

for the District of Columbia

(No. 03cv00213)

Attorney General, Attorney General’s Office of State of

General, Attorney General’s Office of the State of Colorado,

General, Attorney General’s Office of the State of Georgia,

2

Attorney General, Attorney General’s Office of the State of

Attorney General, Attorney General’s Office of the State of

General, Attorney General’s Office of the State of Wyoming,

support of appellants.

Congress of Racial Equality, Inc. in support of appellants

seeking reversal.

American Civil Rights Union in support of appellants.

Rifle Association Civil Rights Defense Fund in support of

appellants seeking reversal.

for the District of Columbia, argued the cause for appellees.

3

Ernest McGill in support of appellees.

General, Attorney General’s Office of the State of Maryland,

Commonwealth of Massachusetts, et al. in support of appellees.

Counsel, Office of the Corporation Counsel of the City of

Chicago, entered appearances.

City Attorney, Office of the City Attorney of the City and

entered an appearance.

district court’s dismissal of their complaint alleging that the

District of Columbia’s gun control laws violate their Second

Amendment rights. The court held that the Second Amendment

(“A well regulated Militia, being necessary to the security of a

4

free State, the right of the people to keep and bear Arms, shall

not be infringed”) does not bestow any rights on individuals

except, perhaps, when an individual serves in an organized

militia such as today’s National Guard. We reverse.

I

Appellants, six residents of the District, challenge D.C.

Code § 7-2502.02(a)(4), which generally bars the registration of

handguns (with an exception for retired D.C. police officers);

D.C. Code § 22-4504, which prohibits carrying a pistol without

a license, insofar as that provision would prevent a registrant

from moving a gun from one room to another within his or her

home; and D.C. Code § 7-2507.02, requiring that all lawfully

owned firearms be kept unloaded and disassembled or bound by

a trigger lock or similar device. Shelly Parker, Tracey Ambeau,

Tom G. Palmer, and George Lyon want to possess handguns in

their respective homes for self-defense. Gillian St. Lawrence

owns a registered shotgun, but wishes to keep it assembled and

unhindered by a trigger lock or similar device. Finally, Dick

Heller, who is a District of Columbia special police officer

permitted to carry a handgun on duty as a guard at the Federal

Judicial Center, wishes to possess one at his home. Heller

applied for and was denied a registration certificate to own a

handgun. The District, in refusing his request, explicitly relied

on D.C. Code § 7-2502.02(a)(4).

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

registration of firearms.

5

Appellants sought declaratory and injunctive relief pursuant

to 28 U.S.C. §§ 2201, 2202, and 42 U.S.C. § 1983, but the court

below granted the District’s motion to dismiss on the grounds

that the Second Amendment, at most, protects an individual’s

not refer to the word “keep” in the Second Amendment.) And,

by “Militia,” the court concluded the Second Amendment

referred to an organized military body—such as a National

Guard unit.

II

After the proceedings before the district judge, we decided

that plaintiffs bringing a pre-enforcement challenge to the

District’s gun laws had not yet suffered an injury-in-fact and,

therefore, they lacked constitutional standing. Although

plaintiffs expressed an intention to violate the District’s gun

control laws, prosecution was not imminent. We thought

District’s general threat to prosecute violations of its gun laws

challenge by a gun manufacturer to certain

provisions of the Violent Crime Control and Law Enforcement

Act of 1994, which prohibited the manufacture (and possession)

of semiautomatic assault weapons. We held then that the

standing to challenge the law in question because the effect of

the statute was to single out individual firearms purveyors for

products were described solely by their characteristics had no

pre-enforcement standing because the threat of prosecution was

shared among the (presumably) many gun manufacturers whose

products fit the statutory description, and, moreover, it was not

6

clear how these descriptive portions of the statute would be

analysis” was “the statute’s own identification of particular

products manufactured only by appellants” because that

indicated a “special priority” for preventing specified parties

required to show that the District had singled them out for

prosecution, as had been the case with at least one of the

could show nothing more than a general threat of prosecution by

the District, we held their feared injury insufficiently imminent

to support Article III standing. 396 F.3d at 1255-56.

in tension with the Supreme Court’s treatment of a preenforcement

challenge to a criminal statute that allegedly

challenges in general terms:

When the plaintiff has alleged an intention to engage in

a course of conduct arguably affected with a

constitutional interest, but proscribed by a statute, and

there exists a credible threat of prosecution thereunder,

he “should not be required to await and undergo a

criminal prosecution as the sole means of seeking

relief.”

7

constitutional challenge at issue there implicated the First (as opposed

concerned that Virginia’s statute might chill speech without any

prosecution ever taking place, 484 U.S. at 393, thereby creating a

wrong without remedy if pre-enforcement standing were denied. But

in deciding whether to privilege one amendment to the U.S.

Constitution over another in assessing injury-in-fact, we note the

hierarchy of Bill of Rights protections that dictates different standing

result, tacitly agreed with Judge Sentelle’s assessment that the injuryin-

fact requirement should be applied uniformly over the First and

Second Amendments (and presumably all other constitutionally

plaintiffs, as well as the appellants here. Appellants’ assertions

of Article III standing also find support in the Supreme Court’s

383 (1988), which allowed a pre-enforcement challenge to a

Virginia statute criminalizing the display of certain types of

sexually explicit material for commercial purposes. In that case,

the Court held it sufficient for plaintiffs to allege “an actual and

well-founded fear that the law will be enforced against them,”

Supreme Court took a far more relaxed stance on preenforcement

Nevertheless, unless and until this court en banc overrules these

8

case, we are obliged to look for an allegation that appellants here

have been singled out or uniquely targeted by the D.C.

government for prosecution. No such allegation has been made;

with one exception, appellants stand in a position almost

pointing to “actual” and “specific” threats, Appellants’ Br. at 21,

lodged against appellants by D.C. during the course of the

district court litigation. But this is insufficient. None of the

statements cited by appellants expresses a “special priority” for

the District appears to be expressing a sentiment ubiquitous

among stable governments the world over, to wit, scofflaws will

be punished.

The noteworthy distinction in this case—a distinction

mentioned in appellants’ complaint and pressed by them on

appeal—is that appellant Heller has applied for and been denied

a registration certificate to own a handgun, a fact not present in

constitutes an injury independent of the District’s prospective

enforcement of its gun laws, and an injury to which the stringent

(prohibition against carrying a pistol without a license) and D.C.

Code § 7-2507.02 (disassembly/trigger lock requirement) would

amount to further conditions on the certificate Heller desires,

Heller’s standing to pursue the license denial would subsume

these other claims too.

This is not a new proposition. We have consistently treated

a license or permit denial pursuant to a state or federal

9

license application to operate private land mobile radio service);

1983) (describing wrongful denial of a preliminary hydroelectric

permit as an injury warranting review). The interests injured by

an adverse licensing determination may be interests protected at

common law, or they may be created by statute. And of course,

a licensing decision can also trench upon constitutionally

District of Columbia’s denial of a building permit under the

F.2d 1056 (D.C. Cir. 1975) (reviewing District of Columbia’s

denial of a license to practice psychology under the Due Process

Clause), which will also give rise to Article III injury.

At oral argument, counsel for the District maintained that

we should not view this as a licensing case for standing purposes

because D.C.’s firearm registration system amounts to a

complete prohibition on handgun ownership. The District

argues that we must analyze appellants’ standing exclusively

(allowing certificates for pistols already registered in the District

prior to 1976); D.C. Code § 7-2502.02(b) (excluding retired

police officers of the Metropolitan Police Department from the

ban on pistol registration). Had Heller been a retired police

officer, presumably the District would have granted him a

registration certificate. The same would be true if Heller had

attempted to register a long gun, as opposed to a handgun. In

any event, Heller has invoked his rights under the Second

Amendment to challenge the statutory classifications used to bar

10

his ownership of a handgun under D.C. law, and the formal

process of application and denial, however routine, makes the

injury to Heller’s alleged constitutional interest concrete and

particular. He is not asserting that his injury is only a threatened

prosecution, nor is he claiming only a general right to handgun

ownership; he is asserting a right to a registration certificate, the

denial of which is his distinct injury.

We note that the Ninth Circuit has recently dealt with a

Second Amendment claim by first extensively analyzing that

provision, determining that it does not provide an individual

right, and then, and only then, concluding that the plaintiff

lacked standing to challenge a California statute restricting the

think such an approach is doctrinally quite unsound. The

Supreme Court has made clear that when considering whether

a plaintiff has Article III standing, a federal court must assume

allegations and legal theory of complaint for purposes of

standing analysis). We have repeatedly recognized that

697 F.2d 303, 305 (D.C. Cir. 1982). “Indeed, in reviewing the

standing question, the court must be careful not to decide the

questions on the merits for or against the plaintiff, and must

therefore assume that on the merits the plaintiffs would be

merits involve the scope of a constitutional protection.

Still, we have not always been so clear on this point.

(D.C. Cir. 1997), that it was not necessary for a plaintiff to

11

demonstrate that he or she would prevail on the merits in order

to have Article III standing, the rest of our discussion seems

somewhat in tension with that proposition. We did recognize

(1992), when the Supreme Court used the phrase “legally

protected interest” as an element of injury-in-fact, it made clear

a “cognizable interest” in observing animal species without

Court did not mean to suggest a return to the old “legal right”

sentence which included the phrase “legally protected interest.”

the Court referred would distinguish, to pick one example, a

desire to observe certain aspects of the environment from a

generalized wish to see the Constitution and laws obeyed.

359 (D.C. Cir. 2005), Judge Williams wrote an extensive

concurring opinion (not inconsistent with the majority opinion)

in which he persuasively explains that the term “legally

“if the plaintiff’s claim has no foundation in law, he has no

legally protected interest and thus no standing to sue.”

standing, however, because the government agency in that case

had unfettered discretion to take the action it did, and therefore

12

1997), we observed that the causation requirement of standing could

(Rogers, J., concurring). Whether that was correct or not, we

concluded that even in that unique situation, not present here, we had

at 767-68.

ground—reviewability under the Administrative Procedure

Act—and federal courts may choose any ground to deny

jurisdiction, e.g., Article III standing, prudential standing, or

classify as a standing opinion). There is no hierarchy which

obliges a court to decide Article III standing issues before other

In sum, we conclude that Heller has standing to raise his

§ 1983 challenge to specific provisions of the District’s gun

control laws.

III

As we noted, the Second Amendment provides:

A well regulated Militia, being necessary to the

security of a free State, the right of the people to keep

and bear Arms shall not be infringed.

13

The provision’s second comma divides the Amendment into

two clauses; the first is prefatory, and the second operative.

Appellants’ argument is focused on their reading of the Second

Amendment’s operative clause. According to appellants, the

Amendment’s language flat out guarantees an individual right

“to keep and bear Arms.” Appellants concede that the prefatory

clause expresses a civic purpose, but argue that this purpose,

while it may inform the meaning of an ambiguous term like

“Arms,” does not qualify the right guaranteed by the operative

portion of the Amendment.

The District of Columbia argues that the prefatory clause

declares the Amendment’s only purpose—to shield the state

militias from federal encroachment—and that the operative

clause, even when read in isolation, speaks solely to military

affairs and guarantees a civic, rather than an individual, right.

In other words, according to the District, the operative clause is

not just limited by the prefatory clause, but instead both clauses

share an explicitly civic character. The District claims that the

Second Amendment “protects private possession of weapons

well-regulated citizens militia organized for the security of a

free state.” Individuals may be able to enforce the Second

Amendment right, but only if the law in question “will impair

their participation in common defense and law enforcement

when called to serve in the militia.” But because the District

reads “a well regulated Militia” to signify only the organized

militias of the founding era—institutions that the District

implicitly argues are no longer in existence today—invocation

of the Second Amendment right is conditioned upon service in

a defunct institution. Tellingly, we think, the District did not

suggest what sort of law, if any, would violate the Second

Amendment today—in fact, at oral argument, appellees’ counsel

asserted that it would be constitutional for the District to ban all

14

firearms outright. In short, we take the District’s position to be

that the Second Amendment is a dead letter.

We are told by the District that the Second Amendment was

written in response to fears that the new federal government

would disarm the state militias by preventing men from bearing

arms while in actual militia service, or by preventing them from

keeping arms at home in preparation for such service. Thus the

Amendment should be understood to check federal power to

regulate firearms only when federal legislation was directed at

the abolition of state militias, because the Amendment’s

blush, it seems passing strange that the able lawyers and

statesmen in the First Congress (including James Madison)

would have expressed a sole concern for state militias with the

language of the Second Amendment. Surely there was a more

direct locution, such as “Congress shall make no law disarming

the state militias” or “States have a right to a well-regulated

militia.”

The District’s argument—as strained as it seems to us—is

hardly an isolated view. In the Second Amendment debate,

there are two camps. On one side are the collective right

theorists who argue that the Amendment protects only a right of

the various state governments to preserve and arm their militias.

So understood, the right amounts to an expression of militant

federalism, prohibiting the federal government from denuding

the states of their armed fighting forces. On the other side of the

debate are those who argue that the Second Amendment protects

a right of individuals to possess arms for private use. To these

individual right theorists, the Amendment guarantees personal

liberty analogous to the First Amendment’s protection of free

speech, or the Fourth Amendment’s right to be free from

unreasonable searches and seizures. However, some

15

entrepreneurial scholars purport to occupy a middle ground

between the individual and collective right models.

The most prominent in-between theory developed by

academics has been named the “sophisticated collective right”

several variations on the collective right theme. All versions of

this model share two traits: They (1) acknowledge individuals

could, theoretically, raise Second Amendment claims against the

federal government, but (2) define the Second Amendment as a

purely civic provision that offers no protection for the private

use and ownership of arms.

The District advances this sort of theory and suggests that

the ability of individuals to raise Second Amendment claims

serves to distinguish it from the pure collective right model. But

when seen in terms of its practical consequences, the fact that

individuals have standing to invoke the Second Amendment is,

(treating the sophisticated collective right model as distinct from

the collective right theory). Both the collective and

sophisticated collective theories assert that the Second

Amendment was written for the exclusive purpose of preserving

individuals can avail themselves of the Second Amendment

today. The latter point is true either because, as the District

appears to argue, the “Militia” is no longer in existence, or, as

16

Amendment protects only a right related to “civic purposes.” The

stated only that the Second Amendment right was not “fundamental.”

Second Amendment requires that use and possession of a weapon be

for civic purposes. We are not aware of any Second Circuit decision

that directly addresses the collective versus individual nature of the

that only the Second and D.C. Circuits had yet to decide nature of

Second Amendment right).

others argue, because the militia’s modern analogue, the

National Guard, is fully equipped by the federal government,

creating no need for individual ownership of firearms. It

appears to us that for all its nuance, the sophisticated collective

right model amounts to the old collective right theory giving a

tip of the hat to the problematic (because ostensibly individual)

text of the Second Amendment.

The lower courts are divided between these competing

interpretations. Federal appellate courts have largely adopted

interpreted the Second Amendment to protect an individual

17

least seven have held that the Second Amendment protects an

whereas at least ten state appellate courts (including the District of

N.E.2d 266, 269 (Ill. 1984) (stating in dicta that Second Amendment

protects collective right).

Constitution are no less authoritative than those of our sister

Department of Justice has recently adopted the individual right

Memorandum from John Ashcroft, Attorney General, to All

01-8780). The great legal treatises of the nineteenth century

18

& n.221 (3d ed. 2000). Professor Tribe was not always of this view.

position).

at 236, 255-59, as does Professor Laurence Tribe’s leading

precedent—either in this court or the Supreme Court—that

provides us with a square holding on the question, we turn first

to the text of the Amendment.

A

We start by considering the competing claims about the

meaning of the Second Amendment’s operative clause: “the

right of the people to keep and bear Arms shall not be

infringed.” Appellants contend that “the right of the people”

clearly contemplates an individual right and that “keep and bear

Arms” necessarily implies private use and ownership. The

District’s primary argument is that “keep and bear Arms” is best

read in a military sense, and, as a consequence, the entire

operative clause should be understood as granting only a

collective right. The District also argues that “the right of the

people” is ambiguous as to whether the right protects civic or

private ownership and use of weapons.

In determining whether the Second Amendment’s guarantee

is an individual one, or some sort of collective right, the most

important word is the one the drafters chose to describe the

holders of the right—“the people.” That term is found in the

First, Second, Fourth, Ninth, and Tenth Amendments. It has

never been doubted that these provisions were designed to

interference, or usurpation. We also note that the Tenth

19

Amendment—“The powers not delegated to the United States

by the Constitution, nor prohibited by it to the states, are

reserved to the states respectively, or to the people”—indicates

that the authors of the Bill of Rights were perfectly capable of

distinguishing between “the people,” on the one hand, and “the

states,” on the other. The natural reading of “the right of the

people” in the Second Amendment would accord with usage

elsewhere in the Bill of Rights.

The District’s argument, on the other hand, asks us to read

“the people” to mean some subset of individuals such as “the

organized militia” or “the people who are engaged in militia

service,” or perhaps not any individuals at all—e.g., “the states.”

“the people” simply cannot be squared with the uniform

construction of our other Bill of

Bookmark and Share:

Please Rate this Article:

5 of 5 Stars 4 of 5 Stars 3 of 5 Stars 2 of 5 Stars 1 of 5 Stars 0 of 5 Stars

Current Rating: