View Full Version : Respondent's Brief In Dc V. Heller

Bradley in DC
02-13-2008, 09:58 AM

[David Kopel, February 7, 2008 at 1:45am] Trackbacks
RESPONDENT'S BRIEF IN DC V. HELLER: On Monday, the brief for Respondent was filed in DC v. Heller, the Supreme Court's case involving the DC handgun ban. The brief for Petitioners (DC and Mayor Fenty) is here.

The first portions of each brief raise textual and historical arguments. DC argues that the preamble of the Second Amendment ("a well-regulated militia") controls and limits the main clause ("the right of the people"). DC emphasizes that militias are subject to limitless state control.

The Heller brief offers well-known rules of construction from the Founding Era to argue that a preamble doesn't limit the main clause. Both sides quote Marbury v. Madison. The Heller brief contains a great deal of American history, partly based on David Young's new book The Founders' View of the Right to Bear Arms (2007), which presents General Gage's disarmament of the citizens of Boston as one of the key causes of the decision of Americans to finally resort to armed revolution, and as the kind of abuse which the Founders wanted to prevent in the new nation.

The DC brief spends a significant amount of words arguing that, even if the Second Amendment applies to ordinary citizens, it does not apply in DC. The argument is predicated on "necessary to the security of a free State" being a reference to state governments, not a free polity. Respondent's brief gives short shrift to this argument, citing various cases that governance of the District of Columbia is controlled by various parts of the Constitution which only limit (or used to only limit) Congress, and not state governments. Eugene Volokh's Notre Dame L. Rev. article "Necessary to the Secureity of a Free State," collects every use of "a free state" during the Founding Era, and shows that the phrase was a term of art which was used only to mean "a free polity" and never to mean "a free American state government."

DC presents more social science data than does the Heller brief, which confines itself to some quick rebuttals. On both sides, the in-depth debate in social science is in the amicus briefs. (More on those next week, after the pro-Heller amici file on Monday.)

DC's gun lock law literally requires that all guns in the home (rifles, shotguns, or pre-1977 handguns owned pursuant to a grandfathering clause) be locked up or disassembled at all times. The locking law makes an exception for guns on business premises and for guns being used in sporting activities. DC concedes that a ban on use of long guns for self-defense in the home would be unconstitutional, but argues that the functional firearms ban must contain an implicit self-defense exception. DC points to a case where a court found that a duress exception must exist in an another law.

Heller retorts by pointing to the 1977 D.C. Court of Appeals (the District's equivalent of a state supreme court) case of McIntosh v. Washington. In that case, the Court of Appeals upheld the self-defense ban as an intended feature, not a bug, of the District's new gun law.

Both briefs are very well-written, and merit study by any law student or lawyer looking for good examples of persuasive brief-writing on sophisticated topics.
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Bradley in DC
02-13-2008, 10:14 AM

Eugene Volokh *

“A well regulated Militia, being necessary to the security of a free
State,” the Second Amendment says, “the right of the people to keep and
bear Arms, shall not be infringed.” But what did the Framing generation
understand “free State” to mean?

Some say it meant a “state of the union, free from federal oppres-
sion.” As one D.C. Circuit judge put it, “The Amendment was drafted in
response to the perceived threat to the ‘free[dom]’ of the ‘State[s]’ posed
by a national standing army controlled by the federal government.” Or as
a lawyer for one leading pro-gun-control group wrote, “Presumably, the
term ‘free State’ is a reference to the states as entities of governmental au-
thority. Moreover, the reference to the ‘security’ of a free State must have
something to do with the need to defend the state as an entity of govern-

This reading would tend to support the states’ rights view, and is
probably among the strongest intuitive foundations for the view—after all,
“State” appears right there in the text, seemingly referring to each state’s
needs and interests. The reading would suggest the right might cover only
those whom each state explicitly chose as its defensive force, perhaps a
state-selected National Guard. And it would suggest the Amendment
doesn’t apply outside states, for instance in the District of Columbia: “the
District of Columbia is not a state within the meaning of the Second
Amendment and therefore the Second Amendment’s reach does not extend
to it.”

But if “free State” was understood to mean “free country, free of des-
potism,” that would tend to support the individual rights view of the
Amendment. “[T]he right of the people” would then more easily be read
as referring to a right of the people as free individuals, even if a right justi-
fied partly by public interests, much as “the right of the people” is under-
stood in the First and Fourth Amendments. The right would cover people
regardless of whether they were selected for a state-chosen defensive force,
since the right would not be focused on preserving the states’ independ-
ence. And it would apply to all Americans, in states or in D.C.

We see a similar controversy about the change from James Madison’s
original proposal, which spoke of “security of a free country,” to the final
“security of a free state.” Some assume the change was a deliberate sub-
stantive shift towards a states’ rights provision, and point in support to the
Constitution’s general use of “state” to mean state of the union (except
where “foreign State” is used to mean “foreign country”). Others assume
the change was purely stylistic, and thus did not reflect a shift to a states’
rights view; they sometimes point for evidence to the absence of recorded
controversy about the change.

This Article makes a simple claim: There’s no need to assume. There
is ample evidence about the original meaning of the term “free state.”
“Free state” was used often in Framing-era and pre-Framing writings,
especially those writings that are known to have influenced the Framers:
Blackstone’s Commentaries, Montesquieu’s Spirit of Laws, Hume’s essays,
Trenchard and Gordon’s Cato’s Letters, and works by over half the au-
thors on Donald Lutz’s list of thirty-six authors most cited by American
political writers from 1760 to 1805. It was also used by many leading
American writers, including John Adams in 1787, James Madison in 1785,
and the Continental Congress in 1774.

Those sources, which surprisingly have not been canvassed by the
Second Amendment literature, give us a clear sense of what the phrase
“free state” meant at the time. In eighteenth-century political discourse,
“free state” was a commonly used political term of art, meaning “free
country,” which is to say the opposite of a despotism.

Political theory of the era often divided the world into despotisms and
free states (either republics or constitutional monarchies). Free states had
certain properties as a result of their being free, and were susceptible to
certain threats of reverting to despotism. To remain a free state, the free
state had to take these threats into account, and to structure its institutions
in a particular way.

“State” simply meant country; and “free” almost always meant free
from despotism, rather than from some other country, and never from some
larger entity in a federal structure. That is how the phrase was used in the
sources that the Framers read. And there is no reason to think that the
Framers departed from this well-established meaning, and used the phrase
to mean something different from what it meant to Blackstone, Montes-
quieu, the Continental Congress, Madison, Adams, or others.

Even given this finding, of course, many important arguments about
the Second Amendment remain. But when we consider those arguments,
we should recognize that the phrase “a free State” was not understood as
having to do with states’ rights as such. Rather, it referred to preserving
the liberty of the new country that the Constitution was establishing.

© 2007 Eugene Volokh. Individuals and nonprofit institutions may reproduce and
distribute copies of this Article in any format, at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision and copyright notice.
* Gary T. Schwartz Professor of Law, UCLA School of Law (volokh@law.ucla.edu).
Many thanks to Randy Barnett, Brannon Denning, Mariel Johnson, C.B. Kates, Donald
Lutz, Joyce Lee Malcolm, Joe Olson, Edward Tran, William Van Alstyne, Sasha Volokh,
Vladimir Volokh, and Michael Wilson, as well as to the UCLA Law Library’s superb refer-
ence librarians.