December 26, 2010
The attachment is pasted below.
The format has changed, however it is the entire document attached in argument for a woman's right of defense.
See attached; (The word "Rod's" only included as personal file locator)
07-290bsacwomenstatelegislatorsandacademics
No. 07-290
================================================================
In The
Supreme Court of the United States
--------------------------------- ♦ ---------------------------------
DISTRICT OF COLUMBIA AND ADRIAN M. FENTY,
MAYOR OF THE DISTRICT OF COLUMBIA,
Petitioners,
v.
DICK ANTHONY HELLER,
Respondent.
--------------------------------- ♦ ---------------------------------
On Writ Of Certiorari To The
United States Court Of Appeals
For The District Of Columbia Circuit
--------------------------------- ♦ ---------------------------------
BRIEF OF AMICAE CURIAE 126 WOMEN
STATE LEGISLATORS AND ACADEMICS
IN SUPPORT OF RESPONDENT
--------------------------------- ♦ ---------------------------------
M. CAROL BAMBERY
Counsel of Record
1330 New Hampshire Ave., N.W.
Unit 321
Washington, D.C. 20036
(240) 515-6134
SARAH GERVASE
12229 Pender Creek Cir., Apt. L
Fairfax, VA 22033
(703) 865-5839
SUE WIMMERSHOFF-CAPLAN
247 S.E. 3rd Ave.
Delray Beach, FL 33483
(561) 330-3269
Attorneys for Amicae Curiae
================================================================
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
i
TABLE OF CONTENTS
Page
INTEREST OF AMICAE CURIAE........................ 1
SUMMARY OF ARGUMENT ................................ 2
ARGUMENT........................................................... 3
I. THE TIME HAS LONG PASSED WHEN
SOCIAL CONDITIONS MANDATED THAT
ALL WOMEN EQUALLY DEPEND UPON
THE PROTECTION OF MEN FOR THEIR
PHYSICAL SECURITY............................... 3
A. The Defense of Women as Men’s Sole
Prerogative and Responsibility............. 5
B. Changing Demographics Heighten the
Need for Many Women to Provide their
Own Physical Security .......................... 6
II. EQUAL PROTECTION IN WASHINGTON,
D.C. NOW MEANS THAT WOMEN ARE
EQUALLY FREE TO DEFEND THEMSELVES
FROM PHYSICAL ASSAULT
WITHOUT THE MOST EFFECTIVE
MEANS TO TRULY EQUALIZE GENDERBASED
PHYSICAL DIFFERENCES ......... 11
A. Violence against Women in the District
of Columbia and the District’s Response.....................................................
13
B. The Benefits of Handguns for Women
Facing Grave Threat ............................. 19
C. Women May not Depend upon the District’s
Law Enforcement Services ......... 27
ii
TABLE OF CONTENTS – Continued
Page
D. Congress Speaks: The Violence Against
Women Act of 1994 ................................ 30
III. GENDER CHARACTERISTICS SHOULD
AT LEAST BE CONSIDERED BEFORE
BARRING LAW-ABIDING WOMEN HANDGUNS,
THE MOST SUITABLE MEANS
FOR THEIR SELF-PROTECTION .............. 31
CONCLUSION ....................................................... 34
APPENDIX .......................................................... 1a
iii
TABLE OF AUTHORITIES
Page
CASES
Castle Rock v. Gonzales, 545 U.S. 748 (2005)............28
DeShaney v. Winnebago County Soc. Servs.,
489 U.S. 189 (1989).................................................28
Goesart v. Cleary, 335 U.S. 464 (1948) ........................6
Hoyt v. Florida, 368 U.S. 57 (1961)..............................6
Personnel Administrator of Massachusetts v.
Feeney, 442 U.S. 256 (1979)....................................11
Warren v. District of Columbia, 444 A.2d 1
(D.C. 1981).........................................................29, 30
Washington v. Davis, 426 U.S. 229 (1976).................11
STATUTES
18 U.S.C. §§ 922(g)(1), (3), (4), (8), (9)........................27
The Violence Against Women Act, Pub. L. 103-
322, 108 Stat. 1796 (1994) ......................................30
D.C. Code §§ 7-2502.03(a)(5), (a)(8) ...........................27
STUDIES AND STATISTICS
Jacquelyn C. Campbell, Ph.D., RN, et al., Risk
Factors for Femicide in Abusive Relationships:
Results from a Multisite Case Control
Study in 93 Am. J. Pub. Health (No. 7 July
2003) ........................................................................25
iv
TABLE OF AUTHORITIES – Continued
Page
D.C. Metro. Police Dep’t, Metro Police Dep’t
Domestic Violence Fact Sheet, received by the
National Coalition Against Domestic Violence,
the District of Columbia on October
28, 2005 from Lieutenant Angela Cousins of
the Metropolitan Police Dept..................................15
D.C. Metro. Police Dep’t, 2004-2006, quoted in
Domestic Violence Statistics, D.C. Coalition
Against Domestic Violence .....................................13
D.C. Metro. Police Dep’t, UCR Report, 2005.............13
F.B.I., Uniform Crime Reports, Murder – Crime
in the United States, multiple years.......................26
James Alan Fox, U.S. Dep’t of Justice, Bureau
of Justice Statistics, Homicide Trends in the
U.S.: Intimate Homicide (last revised on
July 11, 2007) ..........................................................21
Frank Hobbs et al., U.S. Census Bureau,
Demographic Trends in the 20th Century,
Series CENSR-4 (Nov. 2002) ....................................7
John R. Lott, Jr. and David B. Mustard, 26
Journal of Legal Studies 1 (No. 1, Jan. 1997)........20
John Lott, Jr., More Guns, Less Crime, 62, 161
(2d ed., Univ. of Chicago, 2000) (1998) ...................20
Callie Marie Rennison, Ph.D., U.S. Dep’t of
Justice, Bureau of Justice Statistics, Selected
Findings, Rape and Sexual Assault: Reporting
to Police and Medical Attention, 1992-
2000 (August 2002) .................................................15
v
TABLE OF AUTHORITIES – Continued
Page
Callie Marie Rennison, Ph.D. et al., U.S. Dep’t
of Justice, Bureau of Justice Statistics, Intimate
Partner Violence (Special Rep. May
2000, revised on July 14, 2000 and January
31, 2002) ..................................................................12
U.S. Army Training Requirements (Feb. 8, 2006),
http://www.armybasic.org/portal/modules.php?
name=Content&pa=showpage&pid=9 .....................4
Press Release, U.S. Census Bureau, A Century
of Change: America 1900-1999 CB99-FF.17
(Dec. 20, 1999)...........................................................7
U.S. Census Bureau, Living Together, Living
Alone, 5 Population Profile of the United
States: 2000 ...............................................................7
U.S. Dep’t of Health and Human Servs., CDC,
National Center for Health Statistics; 2004 ............4
U.S. Dep’t of Justice, Bureau of Justice Statistics,
Homicide Trends in the U.S.: Intimate
Homicide..................................................................21
U.S. Marines Training Requirements, http://
www.usmarines.com/basic-training2.html...............4
Women Work!, Status Report: Displaced Homemakers
and Single Mothers in the District of
Columbia (1994)........................................................8
vi
TABLE OF AUTHORITIES – Continued
Page
OTHER AUTHORITIES
Brief of Amici Curiae International Law Enforcement
Educators and Trainers Association,
et al., in Support of Respondent.......................8
Brief of Amici Curiae National Network to End
Domestic Violence, et al., in Support of Petitioners......................................................................
16
Brief of Amici Curiae Second Amendment
Sisters, et al., in Support of Respondent..................4
Brief for Petitioners (07-290) .....................................25
Letter from Abigail Adams to John Adams
(March 31, 1776), in The Feminist Papers:
From Adams to De Beauvoir 10 (Alice S.
Rossi ed., Northeastern Univ. Press 1st ed.
1988) (1973)...............................................................3
Allison Bass, Women Far Less Likely to Kill
than Men; No One Sure Why, Boston Globe,
February 24, 1992...................................................26
Paul Brest, Forward: In Defense of the Anti-
Discrimination Principle, 90 Harv. L. Rev. 1
(1976).......................................................................34
Angela Browne, Assault and Homicide at Home:
When Battered Women Kill, in 3 Advances in
Applied Soc. Psych. 61 (Michael Saks & Leonard
Saxe, eds., 1986).............................................26
vii
TABLE OF AUTHORITIES – Continued
Page
Andrea Dworkin, In Memory of Nicole Brown
Simpson, in Life and Death: Unapologetic
Writings on the Continuing War Against
Women 41, 50 (Free Press 1997).............................17
Licia A. Esposito Eaton, Annotation, Liability
of Municipality or Other Governmental Unit
for Failure to Provide Police Protection from
Crime, 90 A.L.R.5th 273 (2001) ..............................28
Dr. James Fordyce, D.D., The Character and
Conduct of the Female Sex and the Advantages
to be Derived from the Society of Virtuous
Women; A Discourse in Three Parts
Before the Congregation of Monkwell Street
Chapel (January 1, 1776), quoted in Mary
Wollstonecraft, Vindication of the Rights of
Woman 192-193 (Miriam Brody ed., Penguin
Classics 1983) (1792) ................................................5
Jocelyn A. Hollander, “I Can Take Care of
Myself”: The Impact of Self-Defense Training
on Women’s Lives, 10 Violence Against
Women 205 (2004) ...................................................18
Nicholas J. Johnson, Principles and Passions:
The Intersection of Abortion and Gun Rights,
50 Rutgers L. Rev. 97 (1997)...................................18
Don B. Kates, Jr., The Value of Civilian Handgun
Possession as a Deterrent to Crime or a
Defense Against Crime, 18 Am. J. of Crim. L.
113 (1991) ................................................................22
viii
TABLE OF AUTHORITIES – Continued
Page
Gary Kleck, Policy Lessons From Recent Gun
Control Research, 49 Law and Contemporary
Problems 35 (No. 1 Winter 1986) ...........................21
Gary Kleck & Marc Gertz, Armed Resistance to
Crime: The Prevalence and Nature of Self-
Defense with a Gun, 86 J. Crim. L. & Crimon.
150 (1995).......................................................21
Gary Kleck and Jongyeon Tark, Resisting
Crime: The Effects of Victim Action on the
Outcomes of Crimes, 42 Criminol. 861 (2005)........20
Linda Langford, et al., Criminal and Restraining
Order Histories of Intimate Partner-
Related Homicide Offenders in Massachusetts,
1991-95 in Paul H. Blackman et al.,
The Varieties of Homicide and its Research
(F.B.I. Acad., 2000) ..................................................14
Inge Anna Larish, Note, Why Annie Can’t Get
Her Gun: A Feminist Perspective on the Second
Amendment, 1996 U. Ill. Law F. 467
(1996).......................................................................18
Silvia A. Law, Rethinking Sex and the Constitution,
132 U. Pa. L. Rev. 955 (1984) .........................11
Sarah B. Lawsky, A Nineteenth Amendment
Defense of the Violence Against Women Act,
109 Yale L.J. 783 (2000)..........................................17
Michael Levin, Feminism and Freedom 210
(Transaction Publishers 1987)..................................4
ix
TABLE OF AUTHORITIES – Continued
Page
Catherine A. MacKinnon, A Sex Equality Approach
to Sexual Assault, in 989 Sexually
Coercive Behavior: Understanding and Management
265 (Robert A. Prentky et al. eds.,
Annals NY Acad. Sci. 2003) ..............................12, 13
Martha McCaughey, Real Knockouts: The Physical
Feminism of Women’s Self-Defense (N.Y.
Univ. Press 1997) ....................................................18
Kathleen O’Shea, Women on Death Row in Women
Prisoners: A Forgotten Population 85 (Beverly
Fletcher et al. eds., Praeger, 1993)..................26
Paige Hall-Smith et al., Partner Homicide in
Context, 2 Homicide Studies 400 (1998).................14
Paxton Quigley, Armed and Female (E.P. Dutton
1989) ........................................................................20
Gerald D. Robin, Violent Crime and Gun Control
47 (Cincinnati, Acad. of Crim. Justice
Sciences: 1991) ........................................................14
Jean-Jacques Rousseau, Emile, or on Education
371 (Allan Bloom trans., Basic Books
1979) (1762).............................................................10
Violence Against Women Act: Hearing on H.B.
3355 before the Subcommittee on Civil and
Constitutional Rights of the Committee on the
Judiciary House of Representatives, 103
Cong. 51 (November 16, 1993) (Testimony by
Eleanor Smeal, President, Fund for the Feminist
Majority)...........................................................30
x
TABLE OF AUTHORITIES – Continued
Page
Mary Zeiss Stange, From Domestic Terrorism
to Armed Revolution: Women’s Right to Self-
Defense as an Essential Human Right, 2 J. L.
Econ. & Pol’y 385 (2006) .........................................19
David A. Strauss, Discriminatory Intent and
the Taming of Brown, 56 U. Chi. L. Rev. 935
(1989).......................................................................11
Murray A. Straus, Ph.D., Domestic Violence
and Homicide Antecedents, 62 Bull. N.Y.
Acad. Med. 457 (No. 5 June 1986)..........................14
Laurence H. Tribe, American Constitutional
Law 1520 (The Foundation Press 2d ed.,
1988) ........................................................................34
UNIFEM, Issue Brief on Violence, United
Nations Dev. Fund for Women................................12
James D. Wright and Peter H. Rossi, Armed
and Considered Dangerous, a Survey of Felons
and Their Firearms 145 (Aldine de
Gruyter, 1986) .........................................................23
1
INTEREST OF THE AMICAE CURIAE1
Amicae Curiae, listed in the Appendix, are an
ad hoc group of over one hundred twenty-six women
state legislators and academics. Amicae have diverse
academic backgrounds and, in many cases, disparate
political ideologies and divergent views on particular
women’s issues. What all Amicae share, however, is
their devotion to the ability of women to legally and
effectively defend themselves in situations that pose
serious and immediate bodily injury.
The case now before the Court directly implicates
women’s capacity for self-defense and is therefore of
particular interest to Amicae. Amicae wish to ensure
that the Court takes into consideration how the
current handgun restrictions in Washington, D.C. not
only effectively abrogate women’s right to defend
themselves, but indeed prevent women from achieving
the same autonomy available to many men. It is
therefore with aspiration of further advancement for
women that Amicae now submit this Brief for the
Court’s consideration.
--------------------------------- ♦ ---------------------------------
1 Rule 37.6 notice. No counsel for any party authored this
brief in whole or in part. No counsel for a party or party made a
financial contribution for the preparation or submission of this
brief. Funding for printing and submission of this brief was
provided by NRA Civil Rights Defense Fund. This brief is filed
with the written consent of all parties, reflected in letters filed
by the parties with the clerk. Amicae complied with the conditions
of those consents by providing seven day advance notice of
its intention to file this brief.
2
SUMMARY OF ARGUMENT
This case provides the Court an opportunity to
advance the ability of women to free themselves from
being subject to another’s ill will and to counter the
commonly-held prejudice that women are “easier
targets” simply because of their gender characteristics.
Violence against women in the United States is
endemic, often deadly, and most frequently committed
by men superior in physical strength to their
female victims.
The District’s current prohibition against handguns
and immediately serviceable firearms in the
home effectively eliminates a woman’s ability to
defend her very life and those of her children against
violent attack. Women are simply less likely to be
able to thwart violence using means currently permitted
under D.C. law. Women are generally less
physically strong, making it less likely that most
physical confrontations will end favorably for women.
Women with access to immediately disabling means,
however, have been proven to benefit from the equalization
of strength differential a handgun provides.
Women’s ability to own such serviceable firearms is
indeed of even greater importance given the holdings
of both federal and state courts that there is no
individual right to police protection.
Washington, D.C.’s current firearms regulations
are facially gender-neutral, and according to Petitioners,
were intended to decrease the incidents of firearms
violence equally among both men and women.
3
Whether those regulations have been effective is a
question discussed in other Briefs submitted to the
Court. What the District’s current firearms laws do is
manifest “gross indifference” to the self-defense needs
of women. Effectively banning the possession of
handguns ignores biological differences between men
and women, and in fact allows gender-inspired violence
free rein. Those biological differences should,
under these limited circumstances, be influential to
the Court’s decision.
Amicae therefore urge the Court to “Remember
the Ladies”2 and to find the District’s current firearms
restrictions unconstitutional.
--------------------------------- ♦ ---------------------------------
ARGUMENT
I. THE TIME HAS LONG PASSED WHEN
SOCIAL CONDITIONS MANDATED THAT
ALL WOMEN EQUALLY DEPEND UPON
THE PROTECTION OF MEN FOR THEIR
PHYSICAL SECURITY.
For centuries the concept of women’s self-defense
was as nonexistent as the idea that women were to,
and could, provide their own means of financial
support. That women themselves could possibly have
2 Letter from Abigail Adams to John Adams (March 31,
1776), in The Feminist Papers: From Adams to De Beauvoir 10
(Alice S. Rossi ed., Northeastern Univ. Press 1st ed. 1988)
(1973).
4
some responsibility for their own fates was not only
not a topic for debate, but would have been deemed a
foolish absurdity. Observable gender differences in
physical aptitude3 and temperament seemed to establish
a natural order that was not significantly disturbed
until the mid-20th century. Later legal and
social advances, however, have led courts to recognize
that gender-based differences do indeed matter and
should sometimes be considered.
3 See, e.g., Michael Levin, Feminism and Freedom 210
(Transaction Publishers 1987) (explaining that women only have
55-58% of the upper body strength of men, and, on average, only
80% as strong as a man of identical weight.) See U.S. Dep’t of
Health and Human Servs., CDC, National Center for Health
Statistics; 2004), http://iier.isciii.es/mmwr/preview/mmwrhtml/
mm5431a5.htm (reporting that in 2002, the average height and
weight for men 20+ years of age was 5'9" and 190 pounds,
respectively, while for women aged 20+ years and older the
average height was 5'4" and 163 pounds). See U.S. Army Training
Requirements (Feb. 8, 2006), http://www.armybasic.org/portal/
modules.php?name=Content&pa=showpage&pid=9 (listing basic
physical standards requiring approximately 40 push-ups for
males aged 17-21 and fewer than 20 push-ups for women of
the same age). See U.S. Marines Training Requirements,
http://www.usmarines.com/basic-training2.html (describing that
to pass the Basic Training Initial Strength Test, men are
required to finish 2 dead-hang pull-ups, while women must
perform a flexed-arm hang for 12 seconds.) See Brief of Amici
Curiae Second Amendment Sisters, et al., in Support of Respondent
at section II.A. (discussing the differences between men
and women’s muscular capacity.)
5
A. The Defense of Women as Men’s Sole
Prerogative and Responsibility
Such paternalism reflected widely-accepted views
of men’s physical prowess vis-a-vis women generally
and the roles women were expected to play in society.
Few women expected to leave the confines of their
families before marriage. Women seldom attended
college, especially at schools distant from their families.
Women largely stayed at home while waiting to
be married, and after marriage were expected to
remain homemakers with no outside employment or
social pursuits. More importantly to the issue of selfdefense,
however, there was little understanding that
women could be anything but helpless in the face of a
serious threat.
Behold these smiling innocents, whom I have
graced with my fairest gifts, and committed
to your protection; behold them with love
and respect; treat them with tenderness and
honor. They are timid and want to be defended.
They are frail; oh do not take advantage
of their weakness! Let their fears and
blushes endear them. Let their confidence in
you never be abused. But is it possible, that
any of you can be such barbarians, so supremely
wicked, as to abuse it? Can you find
in your hearts to despoil the gentle, trusting
creatures of their treasure, or do anything to
strip them of their native robe of virtue?4
4 Dr. James Fordyce, D.D., The Character and Conduct of the
Female Sex and the Advantages to be Derived from the Society of
(Continued on following page)
6
Such sentiments are now risible given our understanding
that women are not children, do have the
capacity to protect their lives and best interests, and
that some men may be anything but tender caregivers.
They are especially inappropriate given the
current number of single mothers who often have sole
responsibility for the protection of their children.
Before the legal and social advances of the latter
half of the 20th century, equal protection for women
therefore meant that women could depend upon the
protection of men for their defense and that of their
children. All women would have a husband, father,
brother, or, if they were remarkably fortunate, some
type of social or church organization there to provide
for their most basic needs. Women were viewed as
largely helpless, and laws precisely differentiated the
opportunities and responsibilities for men and women.
E.g., Goesart v. Cleary, 335 U.S. 464, 466 (1948) (legislatures
may draw “a sharp line between the sexes.”)
See also Hoyt v. Florida, 368 U.S. 57 (1961).
B. Changing Demographics Heighten the
Need for Many Women to Provide their
Own Physical Security
Throughout history, family and household demographics
reinforced the expectation that men would
Virtuous Women; A Discourse in Three Parts Before the Congregation
of Monkwell Street Chapel (January 1, 1776), quoted in
Mary Wollstonecraft, Vindication of the Rights of Woman 192-193
(Miriam Brody ed., Penguin Classics 1983) (1792).
7
be available to provide protection to women and
children. Extended families were the norm across all
cultural backgrounds, providing women the immediately
available support of fathers, brothers, and
husbands. In 1900, only 5% of households in the
United States consisted of people living alone, while
nearly half the population lived in households of six
or more individuals.5 Fewer than one percent of
women in 1900 were divorced and women were
expected to be married by their late teens or early
twenties.6
Widespread demographic changes now make it
far less likely that women will live in households with
an adult male present to provide the traditionallyexpected
protection. In 2000, slightly more than 25
percent of individuals lived in households consisting
only of themselves.7 Between 1970 and 2000, the
proportion of women aged 20 to 24 who had never
married increased from 36 to 73 percent; for women
aged 30 to 34, that proportion tripled from 6 to 22
percent.8 While these statistics do not reflect the
5 Frank Hobbs et al., U.S. Census Bureau, Demographic
Trends in the 20th Century, Series CENSR-4, 141, 139 (Nov.
2002).
6 Press Release, U.S. Census Bureau, A Century of Change:
America 1900-1999, CB99-FF.17 (Dec. 20, 1999), http://www.
census.gov/Press-Release/cb98-228.html.
7 See supra note 5 at 140.
8 U.S. Census Bureau, Living Together, Living Alone, 5
Population Profile of the United States: 2000, p. 5-2, www.census.
gov/population/www/pop-profile/2000/chap05.pdf.
8
increasing percentage of women who choose to cohabit
without marriage, it should be noted that these
percentages of women living alone are likely higher in
metropolitan areas of the Northeast and Mid-
Atlantic.
These statistics do not emphasize the rapidly
increasing number of single mothers in the District.
According to a 2005 survey, there are over 46,000
single mothers living within Washington, D.C. Of
those single mothers, almost half live in poverty.9
These women are the most immediate and often sole
source of protection of their children against abusive
ex-husbands, ex-boyfriends, or unknown criminals
who prey on the District’s most vulnerable households.
Many do not have the resources to choose
neighborhoods in which their children face few
threats or to install expensive monitoring systems
and alarms. Moreover, many will not have the knowledge
or social network to access those violence prevention
services available. An inexpensive handgun,
properly stored to prevent access to children, could
therefore very well be the sole means available for
these women to protect themselves and their children.
See also Brief of Amici Curiae International
Law Enforcement Educators and Trainers Association,
et al., in Support of Respondent (“Int’l L. Enf.
9 Women Work!, Status Report: Displaced Homemakers and
Single Mothers in the District of Columbia (1994), http://www.
womenwork.org/pdfresources/cl_states/cl_dc.pdf.
9
Educ. & Trainers Assoc. Br.”) at section II.D. (discussing
the increasingly rare incidents of gun accidents).
In addition to young women and those who are
single mothers, there is an increasing number of
elderly women who live alone and feel highly vulnerable
to violent crime. Greater improvements in female
than in male mortality rates have increased the
percentage of women aged 65 and older who live
alone. From 1960 to 2000, women aged 65 and over
accounted for a single digit percentage of the total
population but more than 30 percent of households
consisting of only one person.10 This population of
older women living alone will only increase as baby
boomers age and fewer children are capable of caring
for aging parents. Some 40 percent of elderly and
mid-life women have below-median incomes, leaving
them with little or no choice of neighborhoods and
expensive security measures. Edward R. Roybal, The
Quality of Life for Older Women: Older Women Living
Alone, H.R. Rep. No. 100-693, at 1 (2d Sess. 1989).
Jean-Jacques Rousseau once noted that:
This peculiar cleverness given to the fair sex
is a very equitable compensation for their
lesser share of strength, a compensation
without which women would be not man’s
companion but his slave. It is by means of
this superiority in talent that she keeps
herself his equal and that she governs him
10 See supra note 5 at 137.
10
while obeying him. Woman has everything
against her – our defects, her timidity, and
her weakness. She has in her favor only her
art and her beauty.11
Such sentiments bring to mind a knight-errant
defending against all foes his lady before a castle
moat and never thinking of using his sword against
her. Whatever truth this may have had in previous
centuries, today women face the question of what
they are to do when there is no man available to
provide protection, when it is a man himself providing
the threat, or when “subtility” and “beauty” just
will not prevail against a much larger attacker.
Amicae suggest that a workable firearm may be the
only effective tool a woman has in such situations.
Women may therefore not depend upon male
relatives, an often inadequate and unaccountable
police force, or tools of self-defense that are currently
prohibited under Washington, D.C. gun laws. While
women have made advances in their ability to participate
fully in political life through greater choices
of professions, husbands, and child-rearing, the
prevalence of violence against women and their
constant fear continue to exist.
11 Jean-Jacques Rousseau, Emile, or on Education 371
(Allan Bloom trans., Basic Books 1979) (1762).
11
II. EQUAL PROTECTION IN WASHINGTON,
D.C. NOW MEANS THAT WOMEN ARE
EQUALLY FREE TO DEFEND THEMSELVES
FROM PHYSICAL ASSAULT WITHOUT
THE MOST EFFECTIVE MEANS TO TRULY
EQUALIZE GENDER-BASED PHYSICAL
DIFFERENCES.
The Court has already rejected any disparate
impact standard as the basis for gender discrimination.
Writing in Personnel Administrator of Massachusetts
v. Feeney, 442 U.S. 256, 273 (1979), the Court
noted that the “Fourteenth Amendment guarantees
equal laws, not equal results” and that “uneven
effects upon particular groups within a class are
ordinarily of no constitutional concern.”12 The practical
results of laws passed with no discriminatory
intent are simply “a legislative and not a judicial
responsibility.”13 Id. at 272.
It is not the place of this Amicus to dispute
the Court’s jurisprudence of Equal Protection and
12 But cf. Sylvia A. Law, Rethinking Sex and the Constitution,
132 U. Pa. L. Rev. 955, 966 (1984) (“An assimilationist vision that
ignores differences between men and women does not help us to
reconcile the ideal of equality with the reality of difference.”)
13 But cf. David A. Strauss, Discriminatory Intent and the
Taming of Brown, 56 U. Chi. L. Rev. 935, 941 (1989) ((describing
the subordination principle as a road not taken by the Court in
Washington v. Davis, 426 U.S. 229 (1976) but noting that “the
distinctive characteristic of a subordinated group is that its
members are systematically subject to violence at the hands of
members of another group, or must systematically yield to the
command of members of another group.”))
12
discriminatory intent versus impact. The only purposes
of this Brief are to: (1) raise the Court’s awareness
of how firearms may help women achieve the
full place in society they so deserve, and (2) to place
the District’s firearms restrictions as they relate to
women in parallel with scholarly thought regarding
women’s rights in other areas.
Violence against women is predominately genderbased,
most often perpetrated by men against the
women in their lives. Men who react with violence
against women in the domestic sphere often seek to
reassert their control over those whom the men
believe should be held as subordinates. Since 1976,
approximately 30% of all U.S. female murder victims
have been killed by their male, intimate partners.14
Both international and U.S. commentators
recognize that this violence is fomented by gender
differences. United Nations’ documents declare that
“women and girls are victims because they are female,”
and that such violence against women is a
“form of discrimination that prevents women from
participating fully in society and fulfilling their
potential as human beings.”15 According to feminist
legal scholar, Catherine A. MacKinnon, “[s]exual
14 Callie Marie Rennison, Ph.D. et al., U.S. Dep’t of Justice,
Bureau of Justice Statistics, Intimate Partner Violence (Special
Rep. May 2000, revised on July 14, 2000 and January 31, 2002),
www.ojp.usdoj.gov/bjs/pub/pdf/ipv.pdf.
15 UNIFEM, Issue Brief on Violence, p. 1, United Nations
Dev. Fund for Women, http://www.womenwarpeace.org/node/19.
13
assault is a sex-based violation,” explained partly by
the “observation that sexual atrocities are inflicted on
those who have less social power by those who have
more, among whom gender is the most significant
cleavage of stratification.”16 When violence against
women is indeed viewed in this light, D.C.’s current
firearms regulations barring women from the possession
of the most effective means of self-defense reflects
a form of complicity in sex-based discrimination
or, at the very least, gross indifference to such discrimination.
A. Violence against Women in the District
of Columbia and the District’s Response
In 2005, the Metropolitan Police Department
(MPD) received over 11,000 calls reporting a domestic
violence crime or about 30 calls per day.17 There were
51 murders attributed to domestic violence between
2001 and 2004, counting only those cases in which
the so-called victim-offender relation could be
proven.18 These statistics of course cannot convey the
number of women who live in perpetual fear that an
16 Catherine A. MacKinnon, A Sex Equality Approach to
Sexual Assault, in 989 Sexually Coercive Behavior: Understanding
and Management 265, 265 (Robert A. Prentky et al. eds.,
Ann. N.Y. Acad. Sci. 2003).
17 Washington, D.C. Metro. Police Dep’t, 2004-2006, quoted
in Domestic Violence Statistics, D.C. Coalition Against Domestic
Violence, http://www.dccadv.org/statistics.html.
18 Washington, D.C. Metro. Police Dep’t, UCR Report, 2005.
14
abuser will return and escalate the violence already
experienced. As to those women who are able to
report domestic violence-related crimes or who choose
to do so, the MPD is often simply unable to take any
proactive measures to protect their safety. In 2004,
the MPD’s Civil Protection and Temporary Protection
Unit was able to locate and serve only 49.6% of those
against whom a protection order had been issued.19
Such statistics are even more alarming when it is
understood that domestic batterers who ultimately
take the lives of women are repeat offenders, most
likely those with both a criminal background and
repeated assaults against the women they eventually
murder. Murray A. Straus, Ph.D., Domestic Violence
and Homicide Antecedents, 62 Bull. N.Y. Acad. Med.
457 (No. 5 June 1986). These are not men who inexplicably
react violently one day and then never again
present a threat. One study found that a history of
domestic violence was present in 95.8% of the intrafamily
homicides studied.20 In 2004, the District’s
19 See supra Washington, D.C. Metro. Police Dep’t, 2004-
2006, quoted in Domestic Violence Statistics, D.C. Coalition
Against Domestic Violence.
20 Paige Hall-Smith et al., Partner Homicide in Context, 2
Homicide Studies 400 at 410 (1998). See also, Gerald D. Robin,
Violent Crime and Gun Control 47 (Cincinnati, Acad. of Crim.
Justice Sciences: 1991) (studies in Detroit and Kansas City
indicate that 90% of all family homicides were preceded by
previous disturbances at the same address, with a median of 5
calls per address.) Compare Linda Langford, et al., Criminal and
Restraining Order Histories of Intimate Partner-Related Homicide
Offenders in Massachusetts, 1991-95 in Paul H. Blackman
(Continued on following page)
15
Police Department reported that of the 7,449 homes
from which domestic violence was reported, almost
13% had three or more calls that year alone.21 These
numbers cannot account for the violence that is never
reported, or for which only some incidents are reported.
22
Women who eventually face life-threatening
dangers from a domestic abuser or stalker are therefore
well aware of the specific threat presented. In
fact, Petitioners’ Amici may well be correct in their
claim that “female murder victims were more than 12
times as likely to have been killed by a man they
knew than by a male stranger” and that “[o]f murder
victims who their knew their offenders, 62% were
killed by their husband or intimate acquaintance.”
et al., The Varieties of Homicide and its Research (F.B.I. Acad.,
2000) (23.6% of intimate-partner murderers were under an
active restraining order at the time of the homicide; 40% had
been under a restraining order at some time prior to the killing,
taken out by the victim or some other person.)
21 D.C. Metro. Police Dep’t, Metro Police Dep’t Domestic
Violence Fact Sheet, received by the National Coalition Against
Domestic Violence, the District of Columbia on October 28, 2005
from Lieutenant Angela Cousins of the Metropolitan Police
Dept., http://www.ncadv.org/resources/FactSheets_221.html.
22 Callie Marie Rennison, Ph.D., U.S. Dep’t of Justice,
Bureau of Justice Statistics, Selected Findings, Rape and Sexual
Assault: Reporting to Police and Medical Attention, 1992-2000,
p. 3 (August 2002), http://www.ojp.usdoj.gov/bjs/pub/pdf/rsarp00.pdf
(estimating that three-quarters of completed rapes, attempted
rapes, and sexual assaults are not reported to law enforcement
when the offender is a current spouse, ex-spouse, or boyfriend).
16
Brief of Amici Curiae National Network to End
Domestic Violence, et al., in Support of Petitioners at
23 (“Pets’ Network Br.”). Such knowledge of an individualized
threat should allow women to more easily
prepare the best defenses they can employ, using
their ability to weigh the threat against their ability
to protect themselves should the threat ever become
one of serious bodily injury or death. Current D.C.
gun restrictions on handguns and serviceable firearms
in the home simply eliminate that option for
women altogether.
Those women who are attacked by strangers or
whose children are in danger should also be provided
the option of choosing a firearm if they would feel
safer having one in their home. Other women who
live alone, particularly the elderly who are more
likely to be of lower incomes, may not have choices as
to where they must live, nor the ability to relocate if
stalked. These women too should be able to weigh the
threat of an unknown assailant against their ability
to defend themselves should they ever be attacked in
the privacy of their own homes.
Without the freedom to have a readily available
firearm in the home, a woman is at a tremendous
disadvantage when attempting to deter or stop an
assailant should her attacker allow her no other
option. Reflecting upon one of the most notorious
tragedies of domestic abuse turned murder, Andrea
Dworkin stated directly the stakes involved:
17
Though the legal system has mostly consoled
and protected batterers, when a woman is
being beaten, it’s the batterer who has to be
stopped; as Malcolm X used to say, “by any
means necessary” – a principle women, all
women, had better learn. A woman has a
right to her own bed, a home she can’t be
thrown out of, and for her body not to be ransacked
and broken into. She has a right to
safe refuge, to expect her family and friends
to stop the batterer – by law or force – before
she’s dead. She has a constitutional right to a
gun and a legal right to kill if she believes
she’s going to be killed. And a batterer’s repeated
assaults should lawfully be taken as
intent to kill.23
It must be added, however, that it is not just the
physical cost of violence against women that must be
considered. A woman who feels helpless in her own
home is simply not an autonomous individual, controlling
her own fate and able to “participate fully in
political life.”24 While possessing a handgun or a
serviceable long gun in the home will of course not
23 Andrea Dworkin, In Memory of Nicole Brown Simpson, in
Life and Death: Unapologetic Writings on the Continuing War
Against Women 41, 50 (Free Press 1997).
24 See Sarah B. Lawsky, A Nineteenth Amendment Defense
of the Violence Against Women Act, 109 Yale L. J., 783, 786
(2000) (“[F]or a person to be a political citizen, she must be able
to participate, free from domination, as a self-determined equal,
in the deliberation that is essential to a republican form of
government. But self-determination and equality are difficult, if
not impossible, in the face of an omnipresent threat of violence.”)
18
erase all incidents of sex-based violence against
women, denying women the right to choose such an
option for themselves does nothing but prevent the
independent governance women must be afforded.25
Self-defense classes, particularly those involving
training women to use handguns, often help to provide
women the sense of self-worth necessary for
them to feel equals in civil society. See Martha
McCaughey, Real Knockouts: The Physical Feminism
of Women’s Self-Defense (N.Y. Univ. Press 1997).
Women who take such classes no longer see themselves
as powerless potential victims, but as individuals
who may demand that their rights be
respected. There is some evidence that men recognize
this transformation and alter their conduct toward
those women. As one study noted, “[t]he knowledge
that one can defend oneself – and that the self is
valuable enough to merit defending – changes everything.”
Jocelyn A. Hollander, “I Can Take Care of
Myself”: The Impact of Self-Defense Training on
25 E.g., Nicholas J. Johnson, Principles and Passions: The
Intersection of Abortion and Gun Rights, 50 Rutgers L. Rev. 97,
98 (1997) (“[O]ur generation, amidst much controversy, has
continued to tolerate both abortion rights and gun rights and
their costs . . . [T]his is due substantially to our recognition that
these liberties allow what might be crucial private choices in
extreme personal crises. However we come down politically, in
truly desperate circumstances many of us might want for
ourselves or someone we love the option offered by these two
most controversial rights.”). Inge Anna Larish, Note, Why Annie
Can’t Get Her Gun: A Feminist Perspective on the Second
Amendment, 1996 U. Ill. Law F. 467, 475-479 (1996).
19
Women’s Lives, 10 Violence Against Women 205, at
226-227 (2004). Therefore, even if women are never
placed in a position to defend themselves with a
firearm or their own bodies, there are less material
but no less compelling justifications for allowing them
that ability. E.g., Mary Zeiss Stange, From Domestic
Terrorism to Armed Revolution: Women’s Right to
Self-Defense as an Essential Human Right, 2 J. L.
Econ. & Pol’y 385-391 (2006).
B. The Benefits of Handguns for Women
Facing Grave Threat
For years women were advised not to fight back
and to attempt to sympathize with their attackers
while looking for the first opportunity to escape. Wellmeaning
women’s advocates counseled that such
passivity would result in fewer and less serious
injuries than if a woman attempted to defend herself
and angered the perpetrator. More recent, empirical
studies indicate, however, that owning a firearm is
one of the best means a woman can have for preventing
crime against her. The National Crime Victimization
Survey (“NCVS”) indicates that allowing a
woman to have a gun has a “much greater effect” on
her ability to defend herself against crime than
providing that same gun to a man. In fact, the NCVS
and researchers have concluded that women who offer
no resistance are 2.5 times more likely to be seriously
injured than women who resist their attackers with a
20
gun.26 While the overall injury rate for both men and
women was 30.2%, only 12.8% of those using a firearm
for self-protection were injured.27 Subjective data
from the 1994 NCVS reveals that 65 percent of victims
felt that self-defense improved their situation,
while only 9 percent thought that fighting back
caused them greater harm.28
Studies of the effects of concealed carry legislation
offer additional proof. Although the case now
before the Court involves keeping a firearm only in
the home, studies looking specifically at women
granted concealed carry handgun permits have shown
that each additional woman carrying a concealed
handgun reduces women’s murder rate by between
three to four times more than an additional man
carrying a concealed handgun reduces the male
murder rate. John Lott, Jr., More Guns, Less Crime,
62, 161 (2d ed., Univ. of Chicago, 2000) (1998). Providing
women handguns simply increases their ability to
defend themselves far more than does providing
handguns to generally more physically able men. See
also Paxton Quigley, Armed and Female (E.P. Dutton
1989).
26 John R. Lott, Jr. and David B. Mustard, 26 Journal of
Legal Studies 1, 23 (No. 1, Jan. 1997).
27 Gary Kleck and Jongyeon Tark, Resisting Crime: The
Effects of Victim Action on the Outcomes of Crimes, 42 Criminol.
861, 902 (2005).
28 Id. at 2001a.
21
Given relative size disparities, men who threaten
women and children can easily cause serious bodily
injury or death using another type of weapon or no
weapon at all. Between 1990 and 2005, 10% of wives
and 14% of girlfriends who fell victim to homicide
were murdered by men using only the men’s “force”
and no weapon of any type.29 It should also be noted
that a violent man turning a gun on a woman or child
announces his intent to do them harm. A woman
using a gun in self-defense does so rarely with the
intent to cause death to her attacker. Instead, a
woman in such a situation has the intent only to
sufficiently stop the assault and to gain control of the
situation in order to summon assistance. This simple
brandishing of a weapon often results in the assailant
choosing to discontinue the crime without a shot
having been fired.30
The value of widespread handgun ownership lies
not only in the individual instances in which a violent
criminal is thwarted while attempting to harm someone,
but in the general deterrent effects created by
29 James Alan Fox, U.S. Dep’t of Justice, Bureau of Justice
Statistics, Homicide Trends in the U.S.: Intimate Homicide (last
revised on July 11, 2007), http://www.ojp.usdoj.gov/bjs/homicide/
intimates.htm#intweap.
30 See also Gary Kleck & Marc Gertz, Armed Resistance to
Crime: The Prevalence and Nature of Self-Defense with a Gun,
86 J. Crim. L. & Crimon. 150 (1995); Gary Kleck, Policy Lessons
From Recent Gun Control Research, 49 Law and Contemporary
Problems 35, 44 (No. 1 Winter 1986) (noting that only a small
minority, 8.3% of defensive gun uses, resulted in the assailant’s
injury or death).
22
criminals’ knowledge of firearms ownership among
potential victims. Women alarmed by a series of
savage rapes in Orlando, Florida in 1966 rushed local
gun stores to arm themselves in self-defense. In a
widely publicized campaign, the Orlando Police
Department trained approximately 3,000 in firearms
safety. According to the FBI Uniform Crime Report
for 1967, the city then experienced over an 88%
reduction in rapes, while rape throughout Florida
continued to increase by 5% and nationwide by 7%.
Similar crime reduction efforts involving wellpublicized
firearms ownership in other U.S. cities saw
comparable reductions in the rates of armed robbery
and residential burglaries. See also Don B. Kates, Jr.,
The Value of Civilian Handgun Possession as a Deterrent
to Crime or a Defense Against Crime, 18 Am. J. of
Crim. L. 113, 153-156 (1991) (describing the deterrent
effects handguns create for crimes requiring direct
confrontation with a victim such as rape and robbery
and for non-confrontational crime such as car theft
and the burglary of unoccupied locations); Int’l L.
Enf. Educ. & Trainers Assoc. Br. at sections I.B., I.G.
(discussing the crime deterrence value of victim
armament).
Violent criminals who may view women as easy
targets find their jobs far less taxing in communities
such as Washington, D.C. Researchers conducting the
Institute of Justice Felon Survey confirm the common-
sense notion that those wishing to do harm often
think closely before confronting an individual who
may be armed. According to this survey, some 56% of
23
the felons agreed that “[a] criminal is not going to
mess around with a victim he knows is armed with a
gun.” Over 80% agreed that “[a] smart criminal
always tries to find out if his potential victim is
armed,” while 57% admitted that “[m]ost criminals
are more worried about meeting an armed victim
than they are about running into the police.” Some
39% said they personally had been deterred from
committing at least one crime because they believed
the intended victim was armed, and 8% said they had
done so “many” times. Almost three-quarters stated
that “[o]ne reason burglars avoid houses when people
are at home is that they fear being shot during the
crime.” James D. Wright and Peter H. Rossi, 145
Armed and Considered Dangerous, a Survey of Felons
and Their Firearms (Aldine de Gruyter, 1986). Some
34% said they had been “scared off, shot at, wounded,
or captured by an armed victim” at some point in
their criminal careers, while almost 70% had at least
one acquaintance who had a similar previous experience.
Id. at 154-155.
Stalkers and abusive boyfriends, spouses, or exspouses
may be even more significantly deterred than
the hardened, career felons participating in this
survey. Under current Washington, D.C. gun regulations,
stalkers and violent intimate partners may be
confident that their female victims have not armed
themselves since the threats or violence began. Many
of these men have already been emboldened by
women’s failure to report such threats and previous
violence, or by the oftentimes inadequate resources
24
available to help such women. Allowing women the
option to purchase a serviceable handgun will not
deter all stalkers and abusive intimate partners
willing to sacrifice their own lives. However, the fact
that men inclined toward violence will know that
women have that choice and may well have exercised
it will no doubt inhibit those less willing to pay that
price.
The District would like to restrict women’s choice
of firearm to those it gauges most appropriate rather
than to allow rational women the ability to decide
whether a handgun is more suited to their needs.
Petitioner’s Brief cites two articles from firearms
magazines in which a shotgun is mentioned as appropriate
for home defense. Pet. Br. at 54-55. An
assembled shotgun is certainly better than nothing
and could provide deterrence benefits provided it is
accessible to a woman. However, most women are
best served by a handgun, lighter in weight, lighter in
recoil, far less unwieldy for women with shorter arm
spans, and far more easily carried around the home
than a shotgun or rifle. Moreover, women who are
holding a handgun are able to phone for assistance,
while any type of long gun requires two hands to keep
the firearm pointed at an assailant. See also Int’l L.
Enf. Educ. & Trainers Assoc. Br. at section III. The
fact that two articles in firearms magazines suggest a
long gun for home defense should not impinge upon
the constitutional right for a woman to select the
firearm she feels most meets her needs.
Petitioner’s Amici claims that allowing firearms
in the home will only increase women’s risk of being
25
murdered. In fact, Petitioners’ Amici Curiae opens its
argument by stating that, when a gun is in the home,
an abused woman is “6 times more likely” to be killed
than other abused women. Pets’ Network Br. at 20.
However, this statistic has some verifiable basis only
when particular adjustments for other risk factors are
weighed. Most importantly, any validity that statistic
holds is only for battered women who live with abusers
who have guns. The odds for an abused woman
living apart from her abuser, when she herself has a
firearm, are only 0.22, far below the 2.0 level required
for statistical significance. The presence of a firearm
is simply negligible compared to obvious forewarnings
such as the man’s previous rape of the woman, previous
threats with a weapon, and threats to kill the
woman. Moreover, the “most important demographic
risk for factor for acts of intimate partner femicide,”
is the male’s unemployment. Jacquelyn C. Campbell,
Ph.D., RN, et al., Risk Factors for Femicide in Abusive
Relationships: Results from a Multisite Case Control
Study in 93 Am. J. Pub. Health 1090-1092 (No. 7 July
2003). Programs that help women leave an already
terribly violent situation and that decrease unemployment
should therefore be keys to the abatement
of femicide, not laws that serve only to disarm potential
victims.
It must also be noted that allowing women handguns
will not increase the type of random, violent
crime that causes such uneasiness among District
residents. Women are far less likely to commit murder
than are men. Despite being roughly half of the
26
U.S. population, women comprised only 10% of murder
offenders in 2006 and 2004, only 7% in 2005.31
Even more important to note are the circumstances
under which women kill. Some estimates indicate
that between 85% and 90% of women who commit
homicides do so against men who have battered them
for years. Allison Bass, Women Far Less Likely to Kill
than Men; No One Sure Why, Boston Globe, February
24, 1992, at 27. See also Int’l L. Enf. Educ. & Trainers
Assoc. Br. at Section II.A. One 1992 study by the
Georgia Department of Corrections reported that of
the 235 women serving jail time for murder or manslaughter
in Georgia, 102 were deemed domestic
killings. Almost half those women claimed that their
male partners had regularly beaten them. The vast
majority of those who claimed previous beatings had
repeatedly reported the domestic violence to law enforcement.
Kathleen O’Shea, Women on Death Row in
Women Prisoners: A Forgotten Population 85 (Beverly
Fletcher et al. eds., Praeger, 1993). See also Angela
Browne, Assault and Homicide at Home: When Battered
Women Kill, in 3 Advances in Applied Soc.
Psych. 61 (Michael Saks & Leonard Saxe, eds., 1986)
(including FBI data that 4.8% of all U.S. homicides
are women who have killed an intimate partner in
self-defense.) While these deaths are of course tragic,
31 F.B.I., Uniform Crime Reports, Murder – Crime in the
United States, multiple years, http://www.fbi.gov/ucr/cius_04/
offenses_reported/violent_crime?murderhtml, http://www.fbi.gov/
ucr/05cius/offenses/expanded_information/data/shrtable_03.html,
http://www.fbi.gov/ucr/cius2006/offenses/expended_information/
data/shrtable_03.html.
27
their occurrences do not indicate that women with
access to handguns will commit the random acts of
violence law-abiding residents most fear.
Men and women with a history of aggression,
domestic violence, and mental disturbance are already
prohibited from possessing firearms under both
federal and District of Columbia law. Federal law
bars possession to any individual who has been
convicted of a “crime punishable by imprisonment for
a term exceeding one year,” who is an “unlawful user
of or addicted to any controlled substance,” who has
been “adjudicated as a mental defective or who has
been committed to a mental institution,” who is under
an active restraining order, or who has been “convicted
in any court of a misdemeanor crime of domestic
violence.” 18 U.S.C. §§ 922(g)(1), (3), (4), (8), (9)
Washington, D.C. law contains similar provisions, but
adds as prohibited persons chronic alcoholics and
those who have been “adjudicated negligent in a
firearm mishap causing death or serious injury to
another human being.” D.C. Code §§ 7-2502.03(a)(5),
(a)(8). Rigorous enforcement of existing law should
therefore minimize the risk that both men and
women with histories of violence, mental instability,
or negligence with a firearm will have a firearm in
their homes.
C. Women May Not Depend upon the District’s
Law Enforcement Services
The situation now in Washington, D.C. is that
women can no longer depend upon the men in their
28
lives to provide protection against violent crime, nor
do women themselves have access to handguns that
equalize the inherent biological differences between a
woman victim and her most likely male attacker. The
traditional emphasis of men’s duty to protect women
not only increases this defenselessness, but in fact
has proved of less worth as increasingly more women
live alone. Women in the District have therefore been
compelled to rely upon the protections of a government-
provided police force.
Courts have found that such reliance is unfounded.
See, Licia A. Esposito Eaton, Annotation,
Liability of Municipality or Other Governmental Unit
for Failure to Provide Police Protection from Crime,
90 A.L.R.5th 273 (2001). Despite women’s expectations,
courts across the nation have ruled that the
Due Process Clause does not “requir[e] the State to
protect the life, liberty, and property of its citizens
against invasion by private actors.” DeShaney v.
Winnebago County Soc. Servs., 489 U.S. 189, 194
(1989). Women simply have no legal right to law
enforcement protection unless they are able to prove
special and highly narrow circumstances. Just how
special and highly narrow those circumstances are
were proven in this Court’s Castle Rock v. Gonzales
decision. 545 U.S. 748 (2005) In Castle Rock, the
Court found that a temporary restraining order, a
mandatory arrest statute passed with the clear
legislative intent of ensuring enforcement of domestic
abuse restraining orders, and Jessica Gonzalez’s
repeated pleas for help were insufficient for her to
demand protection. Castle Rock therefore left open
29
the question of just what a woman and a wellmeaning
legislature would have to do to create such a
right to expect police protection from a known and
specific threat.
There is no case that better illustrates both how
little individual citizens may demand of their local
police forces and the utility of a serviceable firearm
than Washington, D.C.’s own Warren v. District of
Columbia. 444 A.2d 1 (D.C. 1981). One morning two
men broke down the door and climbed to the second
floor of a home where a mother and her four-year-old
daughter were sleeping. The men raped and sodomized
the mother. Her screams awoke two women
living upstairs, who phoned 911 and were assured
that help would soon arrive. The neighbors then
waited upon an adjoining roof while one policeman
simply drove past the residence and another departed
after receiving no response to his knock on the door.
Believing the two men had fled, the women climbed
back into the home and again heard their neighbor’s
screams. Again they called the police. This second call
was never even dispatched to officers.
After hearing no further screams, the two women
trusted that that police had indeed arrived and called
down to their neighbor. Then alerted to the presence
of two other victims nearby, the men proceeded to
rape, beat, and compel all three women to sodomize
each other for the next fourteen hours. Upon their
seeking some compensation from the District for its
indifference, the women were reminded that a government
providing law enforcement services “assumes
a duty only to the public at large and not to
30
individual members of the community.” Id. at 4. The
District thus simultaneously makes it impossible for
women to protect themselves with a firearm while
refusing to accept responsibility for their protection.
D. Congress Speaks: The Violence Against
Women Act of 1994
The Congressional history behind the passage of
the 1994 Violence Against Women Act shows the
introduction of study after study showing the prevalence
of gender-based violence and its human toll.
Pub. L. No. 103-322, 108 Stat. 1796 (1994) Eleanor
Smeal, representative of the Fund for the Feminist
Majority, testified that Title III of the Act was to
“provide women federal civil remedies to compensate
in part for the inefficient, ineffective, and often unsympathetic
police response at state and local levels.”
Violence Against Women Act: Hearing on H.B. 3355
before the Subcommittee on Civil and Constitutional
Rights of the Committee on the Judiciary House of
Representatives, 103 Cong. 51 (November 16, 1993)
(Testimony by Eleanor Smeal, President, Fund for the
Feminist Majority). The creation of these federal civil
remedies indicates one of Congress’ first and most
powerful acknowledgments that, at least within the
goals of the 1994 VAWA, women should be given some
greater legal protection because of their gender.
Although the Act was expanded in 2006 to include
male victims of sexual assault and domestic
violence, the title of the original act and its text make
31
evident that Congress was originally concerned only
with the special dangers facing women and so offered
federal protection only to them. Rather than viewing
any existing bias or discrimination in state and local
courts as a matter to erode over time, Congress
deemed it necessary to guarantee equal protection of
the laws to women disadvantaged under existing law.
The Court should view this legislative precedent not
as justification to find constitutional the District’s
firearms laws as applied to all but women, but as the
judgment of a coequal branch that the disparities
between male and female should not be overlooked.
III. GENDER CHARACTERISTICS SHOULD AT
LEAST BE CONSIDERED BEFORE BARRING
LAW-ABIDING WOMEN HANDGUNS,
THE MOST SUITABLE MEANS FOR THEIR
SELF-PROTECTION
Women are at a severe disadvantage when confronting
a likely stronger male assailant. In general,
women simply do not have the upper body strength
and testosterone-driven speed to effectively defend
themselves without help. A firearm, particularly an
easily manipulable handgun, equalizes this strength
differential and thereby provides women the best
chance they have of thwarting an attacker. Even
more statistically likely, a firearm in the hands of a
threatened woman offers the deterrence empty hands
and an often unavailing 911 call do not. E.g., Int’l L.
Enf. Educ. & Trainers Assoc. Br. at section I.E. (noting
that in 2003, Washington, D.C.’s average police
32
response time for the highest-priority emergency calls
was almost 8 and a half minutes.) Even in cases in
which a 911 response would be effective, an attacker
in control of the situation will not allow a woman to
pick up the phone to make that call.
Women have made such advances in equality
under the law that it is altogether too easy to disregard
the innate gender-based biological inequality
when it comes to self-defense. Television provides
countless examples of strong women standing toe-totoe
against male evildoers and emerging with only
minor cuts and bruises. Our invariably gorgeous
heroines manage to successfully defend themselves
without so much as smudging their make-up or
breaking a heel off their stilettos. Women with children
are commonly depicted imploring their children
to be silent until a caravan of police cars arrives with
sirens blaring to finally arrest the assailant. Such
images do not conform with most people’s experiences
and do nothing to decrease the level of violence actual
women often suffer.32
32 There are occasional cases in which women are able to
successfully defend themselves without a firearm against a male
attacker. Self-defense training for women has provided countless
women the physical know-how to use their bodies effectively
against assailants and has no doubt contributed to women’s selfconfidence
and esteem. However, self-defense training that does
not involve the use of a firearm is of little avail to a woman
facing a much stronger male armed with some type of weapon.
Such training is of even less avail to a woman who has taken a
self-defense course in the distant past but who has not maintained
her skills.
33
Advocates of women’s reproductive choice commonly
argue that pregnancy disproportionately affects
women due to their innate gender-based characteristics.
Thus, they argue, courts failing to recognize the
right to terminate a pregnancy therefore discriminate
against women and bar their ability to participate as
equal and full members of civil society.33 While choices
about pregnancy no doubt impact a woman’s ability to
determine the course of part of her life, it is not clear
why such a right should be due greater protection
than a woman’s ability to defend her very existence.34
A woman who is murdered, a woman who is so badly
injured that she may never recover emotionally
and/or physically, and a woman who feels constantly
helpless faces even greater barriers to her ability to
function as an equal member of society.
Amicae therefore contend that depriving women
of the right to possess a handgun in the privacy of
their own homes reflects at best an insensitivity to
women’s unique needs created by their inherent
33 See supra note 12 at 1028 (“Control of reproduction is the
sine qua non of women’s capacity to live as equal people. The
high place of equality in our constellation of democratic and
constitutional values demands that something more compelling
than traditionalist moral conviction justify state actions denying
women that which is indispensibly necessary to their ability to
act as moral beings and to participate in civil society.”)
34 Amicae have divergent views on the Court’s reproductive
rights jurisprudence, as they do on many other issues. However,
it must be recognized that the Court’s abrogation of an explicit
textual right could further challenge the perceived validity of its
non-textual reproductive choice doctrine.
34
gender characteristics. A handgun simply is the best
means of self-defense for those who generally lack the
upper body strength to successfully wield a shotgun
or other long gun. To therefore deny half the population
a handgun, as the District and the Office of
the Solicitor General urge, evinces the “blindness or
indifference” to women that only perpetuates women’s
vulnerability to physical subordination.35
--------------------------------- ♦ ---------------------------------
CONCLUSION
Upholding the lower court’s decision will not
eliminate sexual discrimination as it manifests
itself most forcefully in violence against women.
No ruling from this Court or any legislation should
be expected to accomplish that. Moreover, many
women will choose not to exercise the right to own a
35 See Laurence H. Tribe, American Constitutional Law
1520 (The Foundation Press 2d ed., 1988). (applying racial
discrimination and antisubjugation principles to those involving
gender, “[t]he antisubjugation principle thus does not argue for
adopting disparate impact as a per se rule; strict judicial scrutiny
would be reserved for those government acts that, given
their history, context, source, and effect, seem most likely not
only to perpetuate subordination but also to reflect a tradition of
hostility toward an historically subjugated group, or a pattern of
blindness or indifference to the interests of that group.”) See
Paul Brest, Forward: In Defense of the Anti-Discrimination
Principle, 90 Harv. L. Rev. 1, 14 (1976) (suggesting that “selective
indifference” and the antidiscrimination principle apply to
both race and gender.)
35
firearm. Even fewer will be presented the agonizing
decision to actually use a handgun in the defense of
themselves or their children. A large segment of
women were likewise averse, moderately supportive
or even downright indifferent to female suffrage and
women’s reproductive choice. However, the fact that
only some will choose to exercise their right to selfdefense
should in no way prove a legal impediment to
those women for whom owning a firearm is necessary
to their ability to determine the course of their lives
and consequently their place in society.
The Court should therefore consider the effect
the District’s handgun ban has on women who have
no other significant options when facing a life and
death situation. While the basis of the Court’s decision
should of course revolve around its determination
that the Second Amendment guarantees for all
D.C. residents the ability to own a handgun in their
own homes, this case presents a special opportunity
for the Court to advance its gender-related jurisprudence.
Amicae therefore pray that the Court upholds
36
the decision of the Court of Appeals for the District of
Columbia.
Respectfully submitted,
M. CAROL BAMBERY
Counsel of Record
1330 New Hampshire Ave., N.W.
Unit 321
Washington, D.C. 20036
(240) 515-6134
SARAH GERVASE
12229 Pender Creek Cir., Apt. L
Fairfax, VA 22033
(703) 865-5839
SUE WIMMERSHOFF-CAPLAN
247 S.E. 3rd Ave.
Delray Beach, FL 33483
(561) 330-3269
1a
APPENDIX
Women Academics
Prof. Fran Fuller, Ph.D.
Associate Professor
Department of Sociology & Criminal Justice
The University of North Carolina at Pembroke
Prof. Martha McCaughey, Ph.D.
Director of Women’s Studies
Professor of Interdisciplinary Studies
Appalachian State University
Prof. Carol K. Oyster, Ph.D.
Professor of Psychology
University of Wisconsin – LaCrosse
Prof. Mary Zeiss Stange, Ph.D.
Director of Women’s Studies Program
Professor of Women=s Studies and Religion
Skidmore College
Women State Legislators
Assemblywoman Francis O. Allen (NV-04)
Senator Marsha Arzberger (AZ-25)
Representative Lenore Hardy Barrett (ID-35)
Representative Nancy K. Barto (AZ-07)
Representative Maxine T. Bell (ID-26)
Senator Jean Berkey (WA-38)
Senator Diane Bilyeu (ID-29)
Senator Diane Black (TN-18)
2a
Representative Sharon L. Block (ID-24)
Representative Karen Boback (PA-117)
Senator Joyce M. Broadsword (ID-02)
Representative Michele Brooks (PA-017)
Representative Betty Brown (TX-04)
Delegate Kathy J. Byron (VA-22)
Assemblywoman Nancy Calhoun (NY-96)
Representative Christine Canavan (MA-10)
Senator Barbara K. Cegavske (NV-08)
Senator Catherine C. Ceips (SC-46)
Representative Marge Chadderdon (ID-04)
Senator Lydia Chassaniol (MS-14)
Representative Sharon Cissna (AK-22)
Representative Debbie A. Clary (NC-110)
Representative Dawn Creekmore (AR-27)
Delegate Anne C. Crockett-Stark (VA-06)
Representative Nancy Dahlstrom (AK-18)
Senator Bettye Davis (AK-K)
Representative Katie Dempsey (GA-13)
Senator Julie C. Denton (KY-36)
Representative Andrea Doll (AK-04)
Representative Candy Spence Ezzell (NM-58)
Senator Karen L. Facemyer (WV-04)
3a
Representative Anna Fairclough (AK-17)
Representative Diana M. Fessler (OH-79)
Representative Linda Flores (OR-51)
Representative Margaret K. Flory (VT-06)
Assemblymember Jean Fuller (CA-32)
Assemblymember Cathleen Galgiani (CA-17)
Assemblywoman Heidi S. Gansert (NV-25)
Assemblywoman Bonnie Garcia (CA-80)
Senator Pamela Gorman (AZ-06)
Senator Linda Gray (AZ-10)
Senator Lyda N. Green (AK-G)
Representative Dolores R. Gresham (TN-94)
Representative Barbara Gronemus (WI-91)
Representative Nikki Randhawa Haley (SC-87)
Senator Debbie DeFrancesco Halvorson (IL-40)
Representative Patricia Harless (TX-126)
Representative Donna Hutchinson (AR-98)
Senator Cindy Hyde-Smith (MS-39)
Senator Nancy Jacobs (MD-34)
Senator Karen Johnson (AZ-18)
Representative Linda P. Johnson (NC-83)
Representative Jan Jones (GA-46)
Representative Carolyn K. Justus (NC-117)
4a
Senator Shawn Keough (ID-01)
Representative Phylis K. King (ID-18)
Senator Katherine Klausmeier (MD-08)
Assemblywoman Ellen Koivisto (NV-14)
Representative Lois W. Kolkhorst (TX-13)
Representative Jodie Laubenberg (TX-89)
Representative Gabrielle LeDoux (AK-36)
Senator Patti Anne Lodge (ID-13)
Representative Debra Young Maggart (TN-45)
Representative Kathy A. McCoy (NM-22)
Representative Pat McElraft (NC-13)
Representative Janice K. McGeachin (ID-32)
Representative Barbara McGuire (AZ-23)
Senator Lesil McGuire (AK-N)
Assemblywoman Allison Littell McHose (NJ-24)
Representative Nancy McLain (AZ-03)
Representative Kim Meltzer (MI-033)
Representative Geanie Morrison (TX-30)
Representative Judy Morrison (KS-23)
Representative Carol A. Mumford (RI-41)
Representative Donna G. Nelson (OR-24)
Senator Jane Nelson (TX-12)
Representative Mary Sattler Nelson (AK-38)
5a
Representative Merlynn T. Newbold (UT-50)
Representative Betty Olson (SD-28B)
Senator Patricia Pariseau (MN-36)
Senator Linda Evans Parlette (WA-12)
Assemblywoman Nicole Parra (CA-30)
Representative Donna L. Pence (ID-25)
Senator Cheryl Pflug (WA-05)
Representative Jane E. Powdrell-Culbert (NM-44)
Senator Jean Preston (NC-02)
Representative Beverly Pyle (AR-83)
Senator Amanda Ragan (IA-07)
Representative Diane Rice (MT-71)
Representative L. Candy Ruff (KS-40)
Assemblywoman Sharon Runner (CA-36)
Senator Nancy Schaefer (GA-50)
Representative Donna Sheldon (GA-105)
Delegate Beverly J. Sherwood (VA-29)
Assemblywoman Debbie Smith (NV-30)
Representative Jane H. Smith (LA-08)
Senator Lois Snowe-Mello (ME-15)
Senator Nancy Spence (CO-27)
Delegate Sharon Spencer (WV-30)
Delegate Margaret Anne Staggers (WV-29)
6a
Senator Katie Kratz Stine (KY-24)
Assemblywoman Audra Strickland (CA-37)
Representative Kim Thatcher (OR-25)
Representative Diana L. Thomas (ID-09)
Representative Pamela J. Thornburg (DE-29)
Senator Lois Tochtrop (CO-24)
Senator Sharon Trusty (AR-04)
Representative Jodi Tymeson (IA-73)
Senator Renee S. Unterman (GA-45)
Representative Jessica Sibley Upshaw (MS-95)
Senator Kathleen Vinehout (WI-31)
Senator Jill Holtzman Vogel (VA-27)
Representative Amy Sue Vruwink (WI-70)
Representative Jackie Walorski (IN-21)
Representative Judy Warnick (WA-13)
Assemblywoman Valerie Weber (NV-05)
Representative Fran Wendelboe (NH-01)
Representative Susan Westrom (KY-79)
Representative Peggy Wilson (AK-02)
Senator Jackie Winters (OR-10)
Representative JoAn E. Wood (ID-35)
Representative Annette D. Young (SC-98)
