Explore The NRA Universe Of Websites

APPEARS IN Legal & Legislation

Landmark Gun Ban Case Heard By Supreme Court

Friday, March 21, 2008

On March 18, the Supreme Court heard oral arguments in District of Columbia v. Heller, a case the Court has stated is "limited to the following question: Whether Washington, D.C.'s bans [on handguns, on having guns in operable condition in the home and on carrying guns within the home] violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes." 

Most in the Supreme Court chamber seemed to agree that the Second Amendment protects an individual right. The issues that were most in contention included the meaning of the words "keep" and "bear," and whether the amendment protects the possession of arms only during militia service or also for self-defense; whether a total ban on handguns is a "reasonable" regulation of firearms; whether restrictions on the right to arms should be subject to "strict scrutiny," or legislatures or courts should be able to decide what is "reasonable;" and what kinds of regulations would be "reasonable" under the Second Amendment. 

As expected, Dellinger emphasized the amendment's reference to the militia, and downplayed its operative clause, which commands that the "right of the people shall not be infringed." Because the militia are mentioned in the amendment, Dellinger insisted, individuals have a right to possess arms only while serving in a militia. To bolster that argument, he tried to write "keep" out of the amendment, presumably because "keep" means "in a private citizen's home." 

Keep and/or bear? 

Justice David Souter asked, "[if] 'keep' should be read as, in effect, an independent guarantee, then what is served by the phrase 'and bear?'" He then answered his own question, saying "it sounds to me as though 'keep and bear' forms one phrase rather than two." Justice John Paul Stevens was more direct. "It's one right to keep and bear, not two rights, to keep and to bear." (The Brady Campaign began pushing this new theory just last year.) 

Solicitor General Paul D. Clement strongly disagreed, however, and three justices asked questions supporting that point. Chief Justice John Roberts asked, if the Framers had meant to protect a militia right, "Why would they say 'the right of the people?' Why wouldn't they say 'state militias have the right to keep arms?'" Justice Anthony Kennedy added, "the amendment says we reaffirm the right to have a militia, we've established it, but in addition, there is a right to bear arms. . . . [T]here's a general right to bear arms quite without reference to the militia either way." 

Early on, Justice Antonin Scalia asked, "why isn't it perfectly plausible, indeed reasonable, to assume that since the framers knew that the way militias were destroyed by tyrants in the past was not by passing a law against militias, but by taking away the people's weapons -- that was the way militias were destroyed." He added, "The two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed." Later, Justice Scalia noted, "It's not at all uncommon for a legislative provision or a constitutional provision to go further than is necessary for the principal purpose involved. The principal purpose here is the militia, but the second clause goes beyond the militia and says the right of the people to keep and bear arms."

Clement agreed. "A number of state courts that have interpreted [state constitutional right to arms provisions] have distinguished between the two rights and looked at them differently," he said. "And, obviously, the term 'keep' is a word that I think is something of an embarrassment for an effort to try to imbue every term in the operative text with an exclusively military connotation because that is not one that really has an exclusive military connotation." Clement later added, "it's worth emphasizing that the framers knew exactly how to condition a right on militia service, because they did it with respect to the grand jury clause, and they didn't do it with respect to the Second Amendment." 

Self-Defense 

Justice Stevens questioned whether the Second Amendment protects the right of self-defense, because most state constitutions in 1789 did not expressly mention self-defense in their provisions protecting the right to arms. And Justice Souter asked, "is there any evidence that the anti-Federalist objections to the Constitution that ultimately resulted in the Second Amendment were premised on any failure to recognize an individual right of self-defense or hunting?" 

On the other hand, Justice Kennedy repeatedly suggested that the Framers intended the Second Amendment to protect the ability of settlers in the wilderness to defend themselves, and asked about self-defense in homes today. 

Justice Scalia added, "[the English jurist] Blackstone thought [self-defense] was important. He thought the right of self-defense was inherent, and the framers were devoted to Blackstone. Joseph Story, the first commentator on the Constitution and a member of this Court, thought it was a personal guarantee." 

Justice Samuel Alito asked, "If the amendment is intended at least, in part to protect the right to self-defense in the home, how could the District code provision survive under any standard of review where they totally ban the possession of the type of weapon that's most commonly used for self-defense?" 

Dellinger back-pedaled from D.C.'s longstanding position that its laws prohibit self-defense, claiming that the city supports citizens using functional firearms for defense. That claim inspired a vigorous challenge by Heller's lawyer, Alan Gura. Solicitor General Clement sought to offer a solution to the problem, suggesting that D.C. should expressly "allow for a relatively robust self-defense exception to the trigger lock provision." 

Chief Justice Roberts, however, scoffed at the idea that a citizen awakened by an intruder in the middle of the night could "turn on the lamp ... pick up [his] reading glasses," and disengage a trigger lock." 

A ban is "reasonable?" 

Perhaps the most animated exchange of the day was between Chief Justice Roberts and Dellinger, over whether a handgun ban is "reasonable." 

Dellinger argued that states with constitutional protections on the right to keep and bear arms all allow reasonable regulations, but was flatly contradicted by Chief Justice Roberts, who asked him to explain what is reasonable about a total ban on possession?

Rest assured that we will continue to follow the developments in this case closely, leading to the Court's expected decision in June. 

For more information on the Heller case, including links to the official Supreme Court Transcript, C-SPAN audio recording, and all the briefs in the case, please visit www.nraila.org/heller.
TRENDING NOW
Kentucky: Committee to Consider Firearm Seizures Without Due Process

Friday, November 15, 2019

Kentucky: Committee to Consider Firearm Seizures Without Due Process

On Friday, November 22nd, the Kentucky state Interim Joint Committee on Judiciary will consider so called “red-flag laws.” Though no legislation has been introduced, such laws usually allow for Second Amendment rights to be suspended ...

NRA's Statement on Second Amendment Sanctuaries

News  

Friday, December 6, 2019

NRA's Statement on Second Amendment Sanctuaries

Read the NRA's statement on Second Amendment sanctuaries. “It is the tyrannical nature of politicians that triggers sanctuary, not the other way around...”

Virginia Police Chief Advocates Ban on All Guns at U.S. House “Assault Weapons” Hearing

News  

Friday, September 27, 2019

Virginia Police Chief Advocates Ban on All Guns at U.S. House “Assault Weapons” Hearing

On Sept. 25, the Democrat-led U.S. House Judiciary Committee held a 3 ½ hour “hearing” entitled “Protecting America From Assault Weapons.” That framing of the issue underscored the erroneous notion that Americans need protection from ...

Bloomberg Bought Virginia Legislators Introduce Confiscatory Gun Ban

News  

Monday, November 25, 2019

Bloomberg Bought Virginia Legislators Introduce Confiscatory Gun Ban

Michael Bloomberg’s bought and paid for Virginia legislators have wasted no time introducing legislation that would make the Old Dominion’s gun laws worse than those of the billionaire’s home state of New York.

Background Checks for Family Members?! Bloomberg-Bought Virginia Legislature Seeks to Ban Private Firearms Transfers

Friday, December 6, 2019

Background Checks for Family Members?! Bloomberg-Bought Virginia Legislature Seeks to Ban Private Firearms Transfers

Michael Bloomberg’s bought-and-paid-for new Virginia majorities have wasted no time introducing an extremist bill that would make the Commonwealth one of the most hostile states for law-abiding gun owners.

Monday, August 19, 2019

Florida Alert! "Assault Weapons" Ban Amendment Bans ALL SEMIAUTOMATIC RIFLES AND SHOTGUNS

The so-called "assault weapons" ban that is proposed for a constitutional amendment to be on the 2020 Election Ballot bans the possession of: “any semiautomatic rifle or shotgun CAPABLE of holding more than ten (10) rounds ...

NRA Files Joint Legal Challenge Against Firearm Storage Initiative Petition

Wednesday, November 27, 2019

NRA Files Joint Legal Challenge Against Firearm Storage Initiative Petition

On Friday, the National Rifle Association announced the filing of a joint legal challenge with the Oregon Hunters Association to contest Oregon Initiative Petition 40, which seeks to impose sweeping restrictions on the storage of ...

Joe Biden Wants to Ban 9mm Pistols

News  

Monday, November 25, 2019

Joe Biden Wants to Ban 9mm Pistols

A week after he told voters that the Second Amendment doesn’t protect “a magazine with a hundred clips in it,” 2020 Democratic Presidential Candidate Joe Biden offered supporters more of his singular brand of anti-gun ...

Massachusetts: Hearing on Bill to Mandate Doctors Push State’s Anti-Gun Agenda

Saturday, December 7, 2019

Massachusetts: Hearing on Bill to Mandate Doctors Push State’s Anti-Gun Agenda

On December 10th, the Massachusetts Joint Committee on Public Health will hear House Bill 2005 to impose a mandatory requirement for doctors to ask patients about firearms in their homes and for the type of ...

NRA-Supported Case Heard by Supreme Court

News  

Tuesday, December 3, 2019

NRA-Supported Case Heard by Supreme Court

The National Rifle Association’s Institute for Legislative Action (NRA-ILA) says this week’s Supreme Court hearing on a New York City gun control law could ultimately strengthen the ability of law-abiding citizens to exercise their Second ...

MORE TRENDING +
LESS TRENDING -

More Like This From Around The NRA

NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.