Explore The NRA Universe Of Websites

APPEARS IN Legal & Legislation

The Supreme Court and the DC Gun Ban - Setting the Record Straight

Friday, December 7, 2007

Now that the Supreme Court has agreed to review the decision of the U.S. Court of Appeals for the District of Columbia Circuit, in District of Columbia v. Heller (formerly Parker v. District of Columbia), which struck down three D.C. gun bans as unconstitutional, many newspapers are publishing editorials, opinion pieces, and letters to the editor that read suspiciously like the anti-Parker “essays” that the Brady Campaign has been posting on its website for the last few months.  

Here are the main points to use when refuting the Brady Campaign’s erroneous claims: 

1.  The Supreme Court’s decision in Heller may be limited.  The Supreme Court has said that its review of the Court of Appeals decision will be “limited to the following question: Whether [Washington, D.C.’s bans on handguns, on having guns in operable condition in the home, and on carrying guns within the home] 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.”  

The case doesn’t deal with carrying a gun away from home, doesn’t seek to overturn D.C.’s firearm registration law, and doesn’t seek to overturn other laws in D.C. or anywhere else. 

2. In U.S. v. Miller (1939), the Supreme Court recognized that the Right To Keep And Bear Arms is a right of private individuals.  It did not, as the District of Columbia claims, consider the Second Amendment to protect only a right to be armed while serving in a militia, or a “collective right” of a state to maintain a militia. As the Court of Appeals noted in Parker, the Supreme Court said in Miller that the militia consists of “civilians primarily, soldiers on occasion . . . . bearing arms supplied by themselves.” (Emphasis added.)  

3. Under the Supreme Court’s decision in U.S. v. Miller, the District of Columbia’s ban on handguns is clearly unconstitutional.  As the Court of Appeals ruled, “the District’s claim runs afoul of Miller’s discussion of ‘Arms.’ The Miller Court concluded . . . . that militiamen were expected to bring their private arms with them when called up for service. Those weapons would be ‘of the kind in common use at the time.’ There can be no question that most handguns (those in common use) fit that description then and now.” 

4. The Right To Keep And Bear Arms is clearly a right of individuals, because it existed prior to the Constitution. Gun control supporters talk in terms of whether the amendment “creates,” “grants,” “establishes,” or “confers” a right, because to acknowledge that the amendment protects a right that existed before the government did, would amount to admitting that the right belongs not to government, or those on duty in a government’s militia, but instead belongs to private individuals. But, the amendment does not say, “the people shall have a right to keep and bear arms.” It says, “the right of the people to keep and bear arms shall not be infringed.” (Emphasis added.) As the Supreme Court said in U.S. v. Cruikshank (1876), “This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed.” 

5. The Second Amendment protects The Right To Keep Arms, as well as the Right To Bear Arms.  Brady claims that “the right to keep and bear arms” means only “the right to bear arms” (when on active duty in a militia), but that the Supreme Court should ignore the word “keep.” But the Court of Appeals rejected the idea that “keep” has no meaning, saying “we do not take it seriously,” and saying that it “mocks usage, syntax, and common sense,” adding, “Such outlandish views are likely advanced because the plain meaning of ‘keep’ strikes a mortal blow to the collective right theory. . . .We think ‘keep’ is a straightforward term that implies ownership or possession of a functioning weapon by an individual for private use.”  Of course, to “keep” means “at home,” precisely what is at issue in Heller. 

6. When the Second Amendment was written, it was universally considered to protect a private Right To Keep And Bear Arms.  The idea that the amendment protects a right to arms only when serving in a militia, or a so-called “right” of a state to have a militia, were first invented by activist lower courts in 1905 and 1943, respectively. Interestingly, the Brady Campaign adheres to both of the bogus theories, though they contradict one another.
TRENDING NOW
Anti-gunners Launch Campaign to Intimidate U.S. Supreme Court as Second Amendment Case Looms

News  

Monday, October 11, 2021

Anti-gunners Launch Campaign to Intimidate U.S. Supreme Court as Second Amendment Case Looms

For many decades, gun control proponents who saw their fortunes wane in legislatures from coast to coast and who were unable to get traction with Congress could at least console themselves with the thought that ...

Biden Administration Bans Importation of Russian Ammunition

News  

Sunday, August 22, 2021

Biden Administration Bans Importation of Russian Ammunition

The Biden Administration’s Department of State announced that it will soon prohibit the importation of Russian ammunition into the United States. According to a release on the Department of State’s website, “[n]ew and pending permit applications ...

Guide To The Interstate Transportation Of Firearms

Gun Laws  

Thursday, January 1, 2015

Guide To The Interstate Transportation Of Firearms

CAUTION: Federal and state firearms laws are subject to frequent change. This summary is not to be considered as legal advice or a restatement of law.

California: Governor Newsom Signs Legislation Adding More Restrictions to Gun Shows

Monday, October 11, 2021

California: Governor Newsom Signs Legislation Adding More Restrictions to Gun Shows

Despite lawful gun ownership and gun shows already being highly regulated by California law, Governor Gavin Newsom once again signed legislation targeting law-abiding citizens, while doing nothing to address violent crime. On October 8th, he ...

DOJ Releases Biden Gun Confiscation Order Legislation

News  

Wednesday, June 9, 2021

DOJ Releases Biden Gun Confiscation Order Legislation

DOJ has made clear that Garland’s selective definition of “civil rights” has no room for the Second Amendment...

“Adapting” to Crime with “Bleeding Control” Kits

News  

Monday, October 11, 2021

“Adapting” to Crime with “Bleeding Control” Kits

While being driven around recently in the gun-control utopia of Chicago, U.S. Sen. Dick Durbin (D-Ill) claimed the driver of a car next to his leaned out the window and shot a gun into the air. “He could ...

Biden Reiterates Call to Ban 9mm Handguns

News  

Monday, July 26, 2021

Biden Reiterates Call to Ban 9mm Handguns

During a July 21 CNN “presidential town hall,” Joe Biden expressed his support for a ban on commonly-owned handguns. Responding to a question about the recent increase in violent crime, the career politician stated,

Guide To The Interstate Transportation Of Firearms

Gun Laws  

Monday, June 30, 2014

Guide To The Interstate Transportation Of Firearms

CAUTION: Federal and state firearms laws are subject to frequent change. This summary is not to be considered as legal advice or a restatement of law.

Biden Administration Asks the U.S. Supreme Court to Judicially Nullify the Right to Bear Arms

News  

Monday, September 27, 2021

Biden Administration Asks the U.S. Supreme Court to Judicially Nullify the Right to Bear Arms

On September 21, the Biden Administration filed an amicus brief in the pending U.S. Supreme Court case of New York Rifle & Pistol Association v. Bruen, supporting New York’s draconian and unconstitutional restrictions on the right to bear ...

House-Passed NDAA includes Anti-Gun Provisions

News  

Sunday, September 26, 2021

House-Passed NDAA includes Anti-Gun Provisions

The U.S. House of Representatives recently passed its version of the National Defense Authorization Act (NDAA), the annual defense bill that directs funding for our nation’s military.

MORE TRENDING +
LESS TRENDING -

More Like This From Around The NRA

NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.