Pre-Heller Second Amendment Cases

Parker v. District of Columbia, No. 04-7041 (D.C. Cir. 2007), on certiorari to the U.S. Supreme Court as District of Columbia v. Heller, No. 07-290.

On November 20, 2007, the United States Supreme Court decided to review a recent ruling of a federal appeals court striking down the District of Columbia's strict handgun law as a violation of the Second Amendment to the Constitution. The decision below was the first federal appellate court in more than two hundred years since the Second Amendment was ratified to strike down a gun law based upon it. Until that decision, federal courts had rejected every challenge ever brought to gun laws based on the Second Amendment. The case, District of Columbia v. Heller, is likely to produce the most important Second Amendment ruling in history. The Supreme Court will decide whether Second Amendment rights are limited to the possession and use of firearms in connection with service in state militias, or extend to the personal possession of guns for private purposes. If the Court upholds the appeals court ruling, it would overturn longstanding Second Amendment precedent and potentially put federal, and even state, gun laws at risk. The Brady Center, joined by several major national law enforcement groups, filed a friend-of-the-court brief in the case in January 2008, and helped to coordinate other briefs supporting the D.C. law.

The case is based on an appeal of a March 2007 decision by the D.C. Circuit Court of Appeals in Parker v. District of Columbia. In that 2-1 ruling, two judges struck down a District of Columbia law restricting handgun possession that had been on the books for more than 30 years. In doing so, the activist judges wrongly ruled based on their personal view rather the binding precedent of the Supreme Court and our Nation's long history of upholding gun regulations.

Judge Karen LeCraft Henderson, appointed by President George H.W. Bush, dissented in Parker. She vigorously disagreed with the majority, correctly noting that the Second Amendment "relates to the Militia of the States only." In her discussion she noted that the Supreme Court, in United States v. Miller, 307 U.S. 174 (1939), "succinctly-but unambiguously-set down its understanding of the Second Amendment" that "the right of the people to keep and bear arms relates to those Militia whose continued vitality is required to safeguard the individual States." Judge Henderson chastised the majority for ignoring this binding Supreme Court precedent, stating "until and unless the Supreme Court revisits Miller, its reading of the Second Amendment is the one we are obliged to follow."

The law enforcement groups joining the Brady Center's brief include: International Association of Chiefs of Police, Major Cities Chiefs, International Brotherhood Of Police Officers, Police Executives Research Forum, National Organization Of Black Law Enforcement Executives, Hispanic American Police Command Officers Association, National Black Police Association, National Latino Peace Officers Association, and School Safety Advocacy Council. The law firm WilmerHale represents the parties on the brief.

• Read the court's majority and dissent

Seegars v. Ashcroft, 297 F.Supp.2d 201 (D.D.C. 2004), affirmed in part, reversed in part, 396 F.3d 1248 (D.C. Cir. 2005), cert. denied, 126 S.Ct. 1187 (2006)

In Seegars, the National Rifle Association unsuccessfully backed a challenge to the same District of Columbia law restricting handgun possession at issue in Parker, basing its arguments on the Fifth Circuit Court of Appeals decision in Emerson v. United States, 270 F.3d 203 (5th Cir. 2001), cert. denied, 536 U.S. 907 (2002). In Emerson, two judges stated their belief that individuals have a Second Amendment right to gun ownership for personal purposes unrelated to service in a "well-regulated militia."

The Brady Center filed an amicus brief arguing that the court must follow the U.S. Supreme Court's ruling in United States v. Miller, 307 U.S. 174 (1939), that the Second Amendment does not protect an individual right to possess firearms for purposes unrelated to the "well regulated Militia" of the States. The Brady Center's brief helped expose the Emerson court's errors, pointing to recent historical scholarship that indicates that the Second Amendment was fully grounded in service in the "well-regulated Militia" in place when the Bill of Rights was ratified.

The Federal D.C. District Court agreed, ruling that, "The Second Amendment does not confer an individual a right to possess firearms. Rather, the Amendment's objective is to ensure the vitality of state militias." Plaintiffs appealed the judge's ruling and the D.C. Circuit dismissed the appeal. The court found that the plaintiffs did not have standing to challenge the statute as none of the plaintiffs faced imminent criminal prosecution.

• Read the Seegars case summary

Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), cert. denied, 540 U.S. 1046 (2003)

The U.S. Federal Appeals Court for the Ninth Circuit issued a lengthy opinion upholding California's ban on semi-automatic assault weapons on December 5, 2002. In its detailed discussion of the Second Amendment's language and history, the court directly challenged the "individual rights" view adopted by two judges of the U.S. Court of Appeals for the Fifth Circuit in United States v. Emerson. The court's decision is the most detailed discussion by any court of the historical evidence contradicting the "individual rights" view.

The court also sharply criticized the "individual rights" view of the Second Amendment endorsed by the U.S. Justice Department in the Emerson case. Even though the Justice Department was not a participant in the Silveira v. Lockyer case, the court noted that the Department under Attorney General John Ashcroft had "recently reversed the decades-old position of the government on the Second Amendment" and that this reversal of position has caused "turmoil" in the lower courts, leading to the "assertion of Second Amendment defenses by criminal defendants throughout the nation."

• Read the court's decision in Silveira v. Lockyer

United States v. Emerson, 46 F.Supp.2d 598 (N.D.Tex. 1999), reversed and remanded, 270 F.3d 203 (5th Cir. 2001), cert. denied, 536 U.S. 907 (2002)

Timothy Joe Emerson was subject to a domestic violence restraining order that required him not to come near his estranged wife or her young daughter, and was therefore prohibited by Federal law, 18 U.S.C. § 922(g)(8), from possessing a firearm. He was indicted for violating that law by threatening his wife with a Beretta pistol and pointing it at her child. Judge Samuel Cummings of the U.S. District Court for the Northern District of Texas dismissed the indictment and ruled that the Federal law denying guns to those under restraining orders is an unconstitutional infringement of the Second Amendment.

The case was appealed to the U.S. Court of Appeals for the Fifth Circuit. The Brady Center, through its Legal Action Project, filed a "friend of the court" brief in the Emerson case arguing against the "individual rights" view. The Center's brief was joined by nine major law enforcement organizations. The National Rifle Association and other gun groups filed briefs supporting Timothy Joe's case.

The Fifth Circuit reversed the trial court's ruling and remanded the case back to the trial court. The court reinstated the charges against Timothy Joe Emerson for illegal possession of a firearm and upheld as constitutionally valid the law prohibiting Emerson from possessing a firearm. In addition to upholding this law, two of the three judges in the case suggested, in what the third judge on the panel described as non-binding dicta, that the Constitution guarantees the right of an individual to possess firearms for purposes unrelated to militia service. At the time of this ruling, every other Federal court had determined that the Second Amendment guarantees the right to be armed only in service to a state-organized militia.

After the Fifth Circuit reinstated Timothy Joe Emerson's indictment, he appealed to the U.S. Supreme Court. The Supreme Court denied certiorari on June 10, 2002. Emerson was then convicted and sentenced in 2003 to 30 months in Federal prison.

• Read the majority and dissent in the Emerson case
• Amicus Brief filed by the Legal Action Project
• Amicus Brief of 52 legal scholars and historians
• Detailed Case Summary

Klein v. Leis, 99 Ohio St.3d 537, 795 N.E.2d 633 (2003)

The Legal Action Project assisted the City of Cincinnati in defending an Ohio law that controlled the carrying of concealed weapons and the carrying of weapons in motor vehicles. Four individuals brought the suit seeking to have the state laws struck down as violating various provisions of the U.S. and Ohio constitutions. The Supreme Court of Ohio issued a 5-2 ruling on September 24, 2003, upholding the State's restrictions on the carrying of concealed weapons.

• Detailed Case Summary