Keywords: gun, Second Amendment, strict scrutiny, self defense, United States Supreme Court, gun control, case briefs, constitutional construction, right to bear arms, law
Summary of District of Columbia v. Heller, 554 U.S. __, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008).
Handgun possession is banned under District of Columbia (D) law. The law prohibits the registration of handguns and makes it a crime to carry an unregistered firearm. Furthermore all lawfully owned firearms must be kept unloaded and dissembled or bound by a trigger lock unless they are being used for lawful recreational activities or located in a place of business.
Dick Heller (P) is a special police officer in the District of Columbia. The District refused Heller’s application to register a handgun he wished to keep in his home. Heller filed this lawsuit in the Federal District Court for the District of Columbia on Second Amendment grounds. Heller sought an injunction against enforcement of the bar on handgun registration, the licensing requirement prohibiting the carrying of a firearm in the home without a license, and the trigger-lock requirement insofar as it prohibits the use of functional firearms within the home.
The District Court dismissed Heller’s complaint. The Court of Appeals for the District of Columbia Circuit reversed and directed the District Court to enter summary judgment in favor of the District of Columbia. The Court of Appeals construed Heller’s complaint as seeking the right to render a firearm operable and carry it in his home only when necessary for self defense, and held that the total ban on handguns violated the individual right to possess firearms under the Second Amendment. The Supreme Court granted certiorari.
- What rights are protected by the Second Amendment?
Holding and Rule (Scalia)
- The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.
Text of the Second Amendment
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
The prefatory clause “A well regulated Militia, being necessary to the security of a free State” merely announces a purpose. It does not limit or expand the scope of the operative clause “the right of the people to keep and bear Arms, shall not be infringed.” The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.
The militia consisted of all males capable of acting together for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable citizen militias, thereby enabling a politicized standing army or a select militia to rule. The Antifederalists therefore sought to preserve the citizens’ militia by denying Congress the power to abridge the right of individuals to keep and bear arms.
This interpretation is confirmed by analogous arms-bearing rights adopted in state constitutions immediately preceding and following the Second Amendment. Furthermore, the drafting history reveals three proposals that unequivocally referred to an individual right to bear arms. Interpretation of the Second Amendment by scholars, courts, and legislators from ratification through the late 19th century also supports the Court’s interpretation.
No precedent forecloses this interpretation. United States v. Miller limits the type of weapons to which the right applies to those in common use for lawful purposes, but does not limit the right to keep and bear arms to militia purposes.
The Second Amendment right is not a right to keep and carry any weapon in any manner and for any purpose. The Court has upheld gun control legislation including prohibitions on concealed weapons and possession of firearms by felons and the mentally ill, laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, and laws imposing conditions and qualifications on the commercial sale of arms. The historical tradition of prohibiting the carrying of dangerous and unusual weapons supports the holding in United States v. Miller that the sorts of weapons protected are those in common use at the time.
The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The total ban on handgun possession in the home amounts to a prohibition on an entire class of arms that Americans overwhelmingly choose for the lawful purpose of self-defense. This prohibition would fail constitutional muster under any standard of scrutiny. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is therefore unconstitutional.
The Court assumes that a license will satisfy Heller’s prayer for relief and therefore does not address the constitutionality of the licensing requirement. Assuming Heller is not otherwise disqualified from exercising Second Amendment rights, the District of Columbia must permit him to register his handgun and must issue him a license to carry it in the home.
The Second Amendment was adopted to protect the right of the people to maintain a well regulated militia. It was a response to the concern that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to state sovereignty. Neither the text of the Second Amendment nor the arguments advanced by its proponents evidence the slightest interest by the Framers in limiting any legislature’s authority to regulate private civilian uses of firearms.
There is no indication that the Framers intended to enshrine the common law right of self-defense in the Constitution. The view in Miller that the Second Amendment protects the right to keep and bear arms for certain military purposes, but does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons, is both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adoption. The majority fails to identify any new evidence supporting the view that the Amendment was intended to limit the power of Congress to regulate civilian uses of weapons.
The Second Amendment protects militia-related interests, not self-defense-related interests. Furthermore, the Amendment permits government to regulate the interests that it serves. Colonial history itself offers important examples of the kinds of gun regulation that citizens would then have thought compatible with the right to keep and bear arms, including substantial regulation of firearms in urban areas, and regulations that imposed limitations on the use of firearms for the protection of the home.
Adoption of a true strict scrutiny standard for evaluating gun control regulations would be impossible and I would adopt an interest-balancing inquiry. In applying this kind of standard the Court normally defers to a legislature’s empirical judgment in matters where a legislature is likely to have greater expertise and greater institutional fact finding capacity.
This case is also cited as DC v. Heller. See Commerce Clause.
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