In adopting the Second Amendment, the Framers
guaranteed an individual right to keep and bear
arms for private purposes, not a collective right to
keep and bear arms only in connection with state
militia service. This is clear from the text of the
Amendment itself, which guarantees “the right of the
people to keep and bear Arms.” Throughout the
Constitution, individual rights are guaranteed to
“the people”; when the Framers refer to a power of a
State, they refer, unsurprisingly, to “the States.”
While Petitioners stress Framing-era debates
concerning the Militia, the Framing generation
viewed the individual right to keep and bear arms for
personal use as a fundamental right of a free people.
The Framers also sought to ensure a well-regulated
militia by guaranteeing private ownership of
firearms, as civilian ownership and use of firearms
would confer experience and arms invaluable to
militia service, and a right of private ownership
would prevent the federal government from
effectively disarming the populace by declining to
organize the militia.
This individual right to keep and bear arms is a
fundamental right; the Second Amendment on its
face describes it as essential to a “free State”—a
democratic state free from government tyranny. As
with the fundamental democratic rights guaranteed
by the First Amendment, laws burdening Second
Amendment rights should be subjected to strict
scrutiny and struck down in their entirety when
overly broad. Petitioners and their supporting amici
attempt to conjure fears of legal bedlam should
courts examine firearms laws under strict scrutiny,
yet they present no real argument that long-standing
laws regulating the ownership and use of firearms,
such as laws barring ownership by convicted felons
or the insane, would fail to pass muster under that
The D.C. Code provisions at issue in this case
cannot survive strict scrutiny (or any level of
scrutiny) and should be found facially invalid. While
handguns and other firearms, like many other
everyday objects such as automobiles, are involved in
crimes and accidents, there are hundreds of millions
of firearms and tens of millions of handguns in
private possession, of which only a minute fraction
are ever used unlawfully or involved in an accidental
shooting. Most major American cities, unlike the
District, have not taken the extreme and
unconstitutional measure of banning the ownership
of handguns by law-abiding citizens. The most
significant effect of the District’s handgun ban is to
effectively deny law-abiding citizens the freedom to
exercise their common law right to self-defense, a
right exercised by millions of citizens annually and
one that is sorely needed in the District.