DISPOSITION: Rejected (in favor of Heller).


JUDGES: Authored by Kayla Cooper and Melissa C. Navarro.

Chief Justice Jim Hanson dissents.


In the Matter of: DISTRICT OF COLUMBIA, et al., PETITIONERS, Appellant, v.

October 22, 2009, Filed

PRIOR HISTORY: Appeal from the United States Court of Appeals for the District of Columbia Circuit Docket No: 07-290. Date filed: 06/26/08.


COUNSEL: For Appellant(s): John-Henry Heckendorn, Walla Walla, WA.
For Respondent: Harry Hixon, Walla Walla, WA.


The Firearms Control Regulations Act of 1976 (referred to as the handgun ban) essentially bars those dwelling in the District of Columbia from registering and consequently legally possessing a gun designed to be shot with one-hand. The constitutionality of the ban was challenged in 2003 when district citizens including Heller sued the district. Citing lack of membership in an organized militia, the District Court dismissed the claim. Heller and others appealed to the Sixth Circuit Court of Appeals, which ruled that the right to bear arms under the Second Amendment is extended to the individual. The Supreme Court affirmed. The District of Columbia and Mayor Adrian M. Fenty appealed to the Hanson Court of the United States on the grounds that Second Amendment rights were not violated and that the provisions did not fall under the purview of constitutional consideration. We uphold the Supreme Court’s decision.

In Emerson v. United States,
270 F.3d 203 (5th Cir. 2001), the Court supported individual rights in the Second Amendment. In that case, one man’s inability to possess a weapon while under a restraining order raised controversy over his individual rights as a citizen. The respondent argued that Mr. Emerson lacked an individual right to bear arms, as it was considered a state militia right. Mr. Emerson argued to have the indictment against him lifted since he was not considered a criminal under the law for bearing arms. The term “people” in the Second amendment has the same meaning throughout the Constitution. While collective rights advocates would argue that “people” means “states” in the Second Amendment, it is not a strong enough interpretation to isolate the Amendment as strictly a right for the states’ militias. The individual rights of Americans are present throughout the Constitution and should still be respected as a matter of law.


In response to the wave of gun crime that emerged in the 1970s the District of Columbia City Council established the Firearms Control Regulations Act of 1975, which prohibited the personal possession of a handgun in an individual’s home. As the most restrictive gun act in the nation, the Supreme Court’s decision to uphold D.C. v. Heller 554 U.S. ___ (2008) was based on the majority opinion that the Second Amendment guarantees an individual’s right to own a handgun for self-defense, especially in a city where the crime level is among the highest in the country.[i]
Under the Firearms Control Regulations Act of 1975, certain law enforcement officials were exempt from this law’s restrictive provisions. While it is the duty of some of these officials to act as a militia, (under the definition of “militia” in the Second Amendment), all Americans are at liberty to take power back from officials or individuals who obstruct their rights.
In this case, the prevalence of gun violence in Washington, D.C. is not a justifiable factor for bans to be put in place since we have seen that such bans do not reduce violence. Instead, such bans inherently infringe upon individual rights that are granted through the Second Amendment.
The grave reality of D.C.’s gun violence cannot be ignored and the current statistics today show that rigid gun control over individuals is ineffective. While it is clear that the availability of many forms of firearms can contribute to such instances of violence, the rise in gun violence cannot be directly linked to a lack of arms control. According to a Cato Institute report released by Robert Levy, the District of Columbia experienced a 97 percent increase in violent crime from 1976 to 1993 after the Act was put into place.
Additionally, the murder rate as of 2005 is “32 percent about the 1976 level.”[ii] These statistics imply that the rigid arms control put into place in 1976, for the purpose of public safety, has proven to be ineffective.
The founding principle that our country still stands on includes the right of the people to use force against an abusive government. The Declaration of Independence states:

“Governments are instituted among Men, deriving their just powers from the consent of the governed, -- That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. There is no compelling reason to legislate this important power of the people away.” [iii]

The dissenting opinion of this court argues that the individual right is not as clearly stated in the Second Amendment. However, the Second Amendment does not “legislate this important power of the people away” in order for citizens to reach their “Safety and Happiness,” something that every individual is entitled to and not necessarily as a collective body [iv]


The Second Amendment’s recognition of individual rights has not been disproved in past cases involving individual gun rights.  The case of United States v. Miller, 307 U. S. 174, does not restrict the right to bear arms for a specific purpose of militia. Instead, it limits the kind of weaponry that distinguishes use for militia and use for the individual. When it was written, the Second Amendment did not take into account the types of weaponry and advanced technology that can be armed today, thus the limitations on the Second Amendment (if any) are of the weapons themselves. Individual rights were respected in this case.
In an instance in which legally armed law enforcement officials are unable to respond to a hostile situation involving an unarmed victim, weapons should be used for self-defense. There are standards and qualifications varying state-by-state that restrict permits based on background checks. One might argue that a person’s illegal actions in the past should not result in denying access to their Second Amendment rights, however, such restrictions have proved to be a working compromise between the state and the individual. In the case of Burton v. Sills, 53 N.J. 86 (1968), this Court ruled that although the appellant felt the New Jersey gun control laws restricted his Second Amendment rights to protect himself, the installation of permit requirements allowed him to apply for ownership without having his rights obstructed.




As previously stated by Justice Navarro, the Supreme Court upheld D.C. v Heller 554 U.S. with the majority opinion in agreement that the Second Amendment, even in a city with high crime, guarantees an individual’s right to own a handgun. An individual does in fact have a right to bear arms. The Constitution did not restrict people’s rights due to future speculations about what types of weaponry might develop. Chief Justice Hanson has argued that even if the Second Amendment does apply to individuals, it does not warrant a “blanket right.” Safety is an important component of any situation, and measures should be taken to ensure it is not unnecessarily jeopardized. In the majority opinion upholding D.C. v. Heller 554 U.S. (2008), Scalia says:

“The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government building, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those ‘in common use at the time’ finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons”.

However, restricting legal hand gun possession is not an effective avenue to address the plaintiffs concern about violence in the District. By this standard, one could just as easily infer that one can not own “arms” of any kind, especially given modern technology. The preamble to the Second Amendment does indicate that the Framers intended firearms to be used for militia use. A critical reading of the roots of the words and history of their use makes this clear. Yet even after the extensive and thoughtful analysis of the wording of the Amendment in his dissenting opinion, Justice Stevens fails to show how, in the interest of being able to raise a militia, Heller is not warranted to possess a handgun that he intends to keep in his home. Militias are still prevalent in the country. In the 1990s, militias became active in response to outrage about gun control legislation.[v] 

The Supreme Court’s ruling in United States v. Miller, 307 U.S.174 (1939) that there is little if any relationship to a shotgun being less than eighteen inches long to the efficiency of a militia is not relevant in today’s society. The plaintiff frequently referred to United States v. Miller, 307 U.S.174 (1939), particularly “[in] the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” Miller, 307 U.S., at 178. There are two key components to this that the plaintiff failed to adequately address. The wording “at this time” is indicative that similar rulings can and should be dealt with on an individual basis, allowing for change and differing circumstances to be taken into consideration. It may have been difficult in 1939 to attribute a gun less than eighteen inches in length to the “efficiency of a well regulated militia.” However, with changed and improved weapon technology, many handguns today are easier to use, allowing for quick, effective action if needed. Police officers carry handguns because of their feasibility and thus efficiency, and increasingly firearms of handgun size are being created for military personnel.

Since militias are typically composed of ordinary citizens, many of whom have not had experience in combat, it is important that they be able to legally obtain a weapon that is simple to operate. The ability to organize an effective militia today would likely be aided by the increased operational ease and accuracy of handguns. Handguns are one of many avenues which facilitate and are used to carry out harmful acts and situations. Yet preventing law-abiding citizens from protecting themselves and raising a militia is unconstitutional.




Congress does have unique abilities to regulate the District of Columbia. The Home Rule Act of 1973, D.C. Code § 1-203.02, does in fact give Congress the ability to regulate the district in ways separate from the states (we concur with the appellant that the district is not a state). However, it is important to note that this regulation is still subject to constitutional restraints. Just because the district can be distinctly regulated does not mean that citizens within the district are therefore subject to having their Constitutional rights stripped. The Second Amendment is still relevant even if the District is unable to raise a regulated militia. While the issues pertaining to the interpretation of the importance of a militia were previously addressed by Justice Navarro, it is important to stress that the district’s inability to raise a regulated militia does not mean that it is not subject to constitutional restraints (and, thus, that the citizens within the district are not granted protection under the Constitution with regards to both the Second and Fourteenth Amendment). Yet Heller and others need to be able to protect themselves from the government if needed.

Furthermore, we concur that the Constitution does address “the right to regulate activities related to gun use in the District of Columbia.” Yet this does not mean that D.C. residents’ constitutional rights may be dismissed. On the contrary, it highlights the need for a more concrete evaluation and understanding of the extent and limitations of the District in relation to the Constitution, and particularly the Second Amendment. In any matter where it is possible for constitutional rights to be diminished and or adversely affected, it is critical to ensure that such rights are not lost. Although the district is well-intended in its effort to curb the crime level, relying on its distinction from the states in order to deem the Second Amendment inapplicable to the United States citizens within the district is a misunderstanding of the scope of the law. The possibility of curbing violence and handgun related crime does not justify eroding Constitutional rights.

The plaintiff failed to show how the District’s law (which is distinct from the states) concerning handgun possession is Constitutional. Justice Breyer emphasized that violence in the District is a reasonable basis to restrict handgun possession but fails to show that restricting legal ownership of handguns will be an effective means of reducing handgun related violence. Justice Breyer cites the council committee that “the easy availability of firearms in the United States has been a major factor contributing to the drastic increase in gun-related violence and crime over the past 40 years.” Hearing and Disposition before the House Committee on the District of Columbia, 94th Cong., 2d Sess., on H. Con. Res. 694 Ser. No. 94-24, at 24, 25 (1976). However, past efforts to curb the level of violence have not proven to be successful. In 1995, D.C. implemented Operation Ceasefire and harsh crackdowns in the interest of curbing the violence. However, even after 282 guns had been confiscated, the homicide rate in the District rose significantly the next year.[vi] Restricting handguns is not the answer to the problem of violence in D.C.  




The District’s laws are not consistent with their expressed interest in reducing gun violence. Restricting the right to bear a firearm does not tackle the real issues underlying and fueling the problem; guns, including handguns, do not simply fire themselves. Ruling that the Second Amendment is not a “blanket right” allowing anyone to bear arms of any caliber and lethal potential is correct. But simply because a certain weapon is more commonly abused than others does not mean that it is legal to erode people’s ability to defend themselves. The importance of upholding the constitutional rights of all United States citizens, regardless of whether their place of residence is subject to different legislative regulation than others, is crucial to the vitality of the founding principles of the country.



Chief Justice Jim Hanson, dissenting.

I dissent.


Initially, there is absolutely no textual, historical, or other justification for the assertion that the Second Amendment protects an individual’s right to own arms for any reason other than the militia. This “right” is made up. Justice Stevens does an excellent job of pointing this out. See http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=07-290#dissent1

Appellant brief does an excellent job of pointing out the multiple ways the Second Amendment should be read and none justify an individual right to own a handgun. Still, Scalia provides an exhaustive analysis of the Second Amendment showing that possibly (certainly not definitively) that the Second Amendment might have also applied to other areas beyond the militia.

But U.S. v Miller in 1939 already made it very clear that the Second Amendment applied exclusively to the militia. In that decision, the Court noted:

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.

The majority’s as well as Scalia’s attempt to rewrite Miller as being about the kinds of weapons not permitted under the Second Amendment is not persuasive. It is patently and obviously false. The Miller Court dismissed the claim that a shortened shotgun is not protected because it has no reasonable connection to a militia. The same can, obviously, be said about handguns. Their relationship to a militia is highly suspect, particularly when Heller and others similarly situated are making it clear they are not part of a militia.

            Still, the majority in this case attempts to argue that the handguns could be used as part of a militia and implies that individuals need weapons to be able to fight. They note “Militias are still prevalent in the country. In the 1990s, militias became active in response to outrage about gun control legislation.” (op cite) I would remind the Court that these same militias were involved in the bombing of Oklahoma City federal building as well as the Waco massacre. Is the Court saying that such individuals should start with handguns and then assumably more weapons in order to form their own militias against the federal government? This is nothing short of anarchy and I hope the Court meant this idea only in the most general sense of protecting liberty.

            But if the point is that individuals should just have handguns, not major weaponry, then what real chance does the majority believe individuals have against the FBI let alone the military that has far superior weaponry? Surely, such a militia made up of individuals with handguns would end up dead, with no change to show for their efforts.

And, such efforts are exactly what this Court has rejected time and again. The 1939 Miller decision was not an isolated decision. The Miller Court’s view was indeed affirmed in 1980 in Lewis v United States when the Court noted:

These legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties. See United States v. Miller, 307 U.S. 174, 178 (1939) (the Second Amendment guarantees no right to keep and bear a firearm that does not have "some reasonable relationship to [445 U.S. 55, 66] the preservation or efficiency of a well regulated militia") . . .

I don’t know how much clearer the Court could be.

Instead, here it is 2009 and we are overturning clear precedent based on a litany of rationalizations that boil down to this: Since the Second Amendment did not explicitly exclude the right to arms for self-protection, then the right may be inferred. And from there, those on the Court favoring gun rights insert their preference over that of the legislature which has made it clear that it wishes to ban such weapons.

            And to the degree that the Court wishes to invent new rights, which these decisions clearly do, why this right? When this Court has established a right beyond the explicit text of the Constitution, it has been about personhood, privacy, parenting, birth, etc. In this case, the Court is saying individuals have a right to a gun, an object someone can possess. Such a grant of implied right is unprecedented. Particularly, when it is a right to something that is dangerous and can kill (and does kill).

As such, the Court’s claim involves engaging in a difference of opinion with the legislature, not a right. The majority supports their claim for a right to own a handgun because handgun bans failed; violent crime rose. This is not a rationale for a right and this is no more proof that it failed than saying an extra bedroom in a home has failed to reduce the number of children in each bedroom because there are now 4 more children. You don’t say the handgun ban failed because the larger problems of crime grew beyond that ban. The fact is, violent crime grew everywhere and much of the problem was the ease of access to guns. And the growing violent crime is exactly why the District of Columbia acted. As the appellant brief notes:

In addition, consideration of the logic behind the handgun ban underlines its reasonability. This Court has consistently evaluated the predicative judgments of state and district legislatures. In fact, the Court has ruled that the sole obligation of the legislature is to assure that “in formulating its judgments, [the legislature] has drawn reasonable inferences based on substantial evidence.” (Turner, 512 U.S. at 666). The handgun ban does not restrict access to all arms. Rather it acknowledges that handguns have particularly detrimental societal costs. For example, handguns are most easily stolen and thereby most frequently contribute to crime. Handguns are especially linked to homicides among women. In the District of Columbia seventy-two percent of women killed in firearm homicides were killed by handguns prior to the handgun ban. Finally, handguns are easily accessible to children, and therefore most likely to be brought into a school environment. The District Council predicated its handgun ban on the careful analysis of specific harms of handguns. Clearly, the District Council instituted the handgun ban with total adherence to the method by which the Supreme Court restricts the rights of citizens.

(from John Henry’s brief.)

And, the District’s efforts were not without merit:

Homicides in the district did ebb over the next few years, largely following a national trend. In 1977, the U.S. Conference of Mayors reported robberies, assaults and homicides using handguns had fallen sharply in D.C. and concluded the ban was working. However, the results were challenged even by the city's police department, which said police tactics had contributed to the drop.

In the late 1980s and early 1990s, murders spiked as Washington, like many other cities, was hit by the crack epidemic. By 1991, the number of homicides reached 479, or 81 deaths per 100,000 people, earning the city status as the nation's murder capital.

Yet that year, a study released by University of Maryland criminologists in the New England Journal of Medicine suggested the gun ban had saved lives in the decade before. They argued the ban had prevented 47 deaths per year in D.C., both suicides and murders. Surrounding areas in Maryland and Virginia had not seen a corresponding drop in gun crime.

The study analyzed data only through 1987, and did not incorporate the higher murder rate during the crack surge, an epidemic critics said revealed the law's weakness. Other criminologists said the study should have compared the district to Baltimore, a city with similar crime problems where violence also declined during the same period. The authors went back and compared the district to other cities, including Baltimore, saying their conclusions still held up.

In the late 1990s, the annual homicide numbers began to fall as the crack scourge ebbed. In the past decade, many of the city's neighborhoods also have undergone a revitalization, attracting more affluent residents. Last year, there were 181 murders.


Now, certainly, one can debate these numbers and the effectiveness of the ban on handguns and that is exactly what legislatures are for.

            But what is it about guns that a select group of people have such affinity? The allure escapes me but to the degree it is there, it is not a legal right, it is not part of the Second Amendment other than as part of the militia, and it is not like any other implied right that this Court has granted before.

            And even if ownership of handguns is a “right,” it is clearly proscribable. The majority concedes this when they acknowledge regulations on gun ownership are permitted. Justice Breyer’s opinion rightly notes that a regulation banning just handguns in the case of the District of Columbia is just such a reasonable regulation of arms.


The handgun ordinance is a legitimate balance. Some arms are permitted, those close in character to the muskets common at the time of the Second Amendment’s creation and there is a self-defense exception. Handguns, in general however, are not permitted, and the District of Columbia has ample reason to restrict such weapons. Breyer noted:

     Handguns also appear to be a very popular weapon among criminals. In a 1997 survey of inmates who were armed during the crime for which they were incarcerated, 83.2% of state inmates and 86.7% of federal inmates said that they were armed with a handgun. See Dept. of Justice, Bureau of Justice Statistics, C. Harlow, Firearm Use by Offenders, p. 3 (Nov. 2001), online at http://www.ojp.usdoj.gov/bjs/pub/pdf/fuo.pdf; see also Weapon Use and Violent Crime 2 (Table 2) (statistics indicating that handguns were used in over 84% of nonlethal violent crimes involving firearms from 1993 to 2001). And handguns are not only popular tools for crime, but popular objects of it as well: the FBI received on average over 274,000 reports of stolen guns for each year between 1985 and 1994, and almost 60% of stolen guns are handguns. Dept. of Justice, Bureau of Justice Statistics, M. Zawitz, Guns Used in Crime, p. 3 (July 1995), online at http://www.ojp.usdoj.gov/bjs/pub/pdf/guic.pdf. Department of Justice studies have concluded that stolen handguns in particular are an important source of weapons for both adult and juvenile offenders. Ibid.

But this is not a matter of the reasonableness of the ban on handguns. This is a matter of a right that the majority creates out of nowhere. As noted, previous “implicit” rights have been, on their face, achievable such as privacy or parental rights. This is not the case with gun regulation; it depends on arguments conjecturing about the safety and deterrence of such weaponry. Legislatures, not courts, are best suited to determine how to balance these issues rather than have this Court dictate that everyone has a right to own a handgun. As Breyer notes:

     There is no cause here to depart from the standard set forth in Turner, for the District's decision represents the kind of empirically based judgment that legislatures, not courts, are best suited to make. See Nixon, 528 U. S., at 402 (Breyer, J., concurring). In fact, deference to legislative judgment seems particularly appropriate here, where the judgment has been made by a local legislature, with particular knowledge of local problems and insight into appropriate local solutions. See Los Angeles v. Alameda Books, Inc., 535 U. S. 425, 440 (2002) (plurality opinion) ("[W]e must acknowledge that the Los Angeles City Council is in a better position than the Judiciary to gather an evaluate data on local problems"); cf. DC Rep., at 67 (statement of Rep. Gude) (describing District's law as "a decision made on the local level after extensive debate and deliberations"). Different localities may seek to solve similar problems in different ways, and a "city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems." Renton v. Playtime Theatres, Inc., 475 U. S. 41, 52 (1986) (internal quotation marks omitted). "The Framers recognized that the most effective democracy occurs at local levels of government, where people with firsthand knowledge of local problems have more ready access to public officials responsible for dealing with them." Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 575, n. 18 (1985) (Powell, J., dissenting) (citing The Federalist No. 17, p. 107 (J. Cooke ed. 1961) (A. Hamilton)). We owe that democratic process some substantial weight in the constitutional calculus.

And furthering the deference we should show the legislature, the Constitution explicitly provides more governmental control over weaponry in the District of Columbia. As appellant brief shows:

In fact, out of all the states and territories within the United States, the Second Amendment least affects the District of Columbia. Specific legislation exists within the Constitution that provides Congress with unique abilities to restrict the district. First, the District of Columbia has no ability to raise a militia, already rendering it exempt from the purview of the Second Amendment (D.C. Code § 1-203.02).  Moreover, following riots in the provisional Pennsylvania capital, Congress ensured the ability to protect itself when creating the new capital. Specifically Congress retained “plenary power over the jurisdiction,” allowing for the specific implementation of martial defenses as needed (U.S. Const. art. I, § 8, cl.17). As with the handgun ban, this clause expressly targets the local populace. Accordingly, consideration of other pertinent sections within the constitution supports our Second Amendment interpretation. If anything, legislation regarding the District of Columbia allows for more stringent regulation there than anywhere else in the country. At a minimum, the use of an anti-federalist amendment to restrict the very states and districts that the amendment originally proposed to protect is entirely without merit.

The majority concedes this but claims that this does not give the District the right to override the rights of citizens. True enough but these aren’t rights and to the degree they are, the District’s special characteristics explicitly provide greater deference to the decision to implement something like the handgun ban (making it a reasonable regulation in this situation even by the majority’s own admission that Second Amendment rights may be limited).

Sadly, today, the District of Columbia which passed this ordinance on a 12-1 vote and with the support of 75% of its citizens, has had its efforts to reduce violence thrown out in the interest of Heller and others who really want a handgun.


As such, I respectfully dissent.


[i] D.C. v. Heller 554 U.S. ___ (2008). "Crime Gun Trace Analysis Reports: The Illegal Youth Firearms Markets in 17 Communities (Executive Summary)." <http://www.atf.gov/pub/fire-explo_pub/ycgii97/summary.pdf>. Bureau of Alcohol, Tobacco, Firearms and Explosives. 1997.

[ii] Levy, Robert. The D.C. Gun Ban: Supreme Court Preview. The Cato Institute: September 24, 2007.


[iii] The Declaration of Independence, . 2 (U.S. 1776)


[iv] Ibid.


[v] Beaumont, Roger. "American as Cherry Pie? Unofficial Militias in American History". Journal of Conflict Studies Vol. XIX No. 2, Fall 1999: University of New Brunswick.

[vi] Lewis, Nancy. "Officials Say D.C. Anti-Gun Program Seems to Be Working." (1995-10-26). The Washington Post, 1995, 10-26)