On June 26, 2008, the Supreme Court affirmed, in a 5-4 decision, the ruling of the U.S. Court of Appeals for the D.C. Circuit that the Second Amendment protects a pre-existing, private, individually-held Right to Keep Arms and to Bear Arms, without regard to a person’s relationship to a militia. The narrow ruling should be a reminder about the importance of this presidential election. As the Wall Street Journal noted, “With the next President likely to appoint as many as three Justices, the right to bear arms has been affirmed but still isn’t safe.”
NRA leaders noted the ruling’s political impact, and promised that NRA will soon file new lawsuits challenging local gun bans in San Francisco and the Chicago area. “Anti-gun politicians can no longer deny that the Second Amendment guarantees a fundamental right,” said NRA chief lobbyist Chris W. Cox. “All law-abiding Americans have a fundamental, God-given right to defend themselves in their homes. Washington, D.C. must now respect that right.”
Last year, the District of Columbia appealed a Court of Appeals ruling affirming that the Second Amendment to the Constitution guarantees an individual right to keep and bear arms, and that the District’s bans on handguns, carrying firearms within the home and possession of functional firearms for self-defense violate that fundamental right.
In its opinion in District of Columbia v. Heller (known as Parker v. District of Columbia when decided in the D.C. Circuit), the Supreme Court ruled that the amendment does not (as the District argued) protect a right to possess arms only while serving in a militia, or (as others have argued) a “state’s right” to maintain a militia. In fact, no dissenting justice endorsed the “state’s right” theory.
The decision strikes down the District’s bans on handguns and on having a gun in operable condition at home, as violations of the Second Amendment, and prohibits the District from denying plaintiff Dick Heller a permit to carry a firearm within his home, on “arbitrary and capricious” grounds.
However, the decision does not strike down other gun laws in D.C. or elsewhere, which were not at issue in this case. In particular, the plaintiffs in this narrow challenge had not attacked D.C.’s firearm registration law and its peculiar law banning (as “machine guns”) semi-automatic firearms for which a magazine of 12 or more rounds exists somewhere in the world, so the Court did not rule on those provisions one way or the other.
No doubt, the presumptive Democratic nominee for president, Sen. Barack Obama (Ill.), who has repeatedly expressed support for the ability of local governments to restrict guns at will, may claim that the Heller decision gives him a “green light for gun control.” (For more on Obama’s back-pedaling, see below.) And gun control groups have claimed to take heart from the Court’s comments suggesting certain types of restrictions could still be constitutional, such as “laws prohibiting the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of firearms. We also recognize . . . the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”
However, those groups should take little comfort in the opinion as a whole, which thoroughly rejects all “collective right” interpretations of the Second Amendment, and recognizes the Second Amendment protects a right that existed before the Constitution itself and that encompasses protection of individual self-defense.
The majority opinion, written by Justice Antonin Scalia, was joined by Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy, and Clarence Thomas. Dissenting opinions by Justices John Paul Stevens and Stephen Breyer were joined by each other and by Justices Ruth Bader Ginsburg and David Souter.
The majority opinion analyzes the significant words and phrases of the prefatory and operative clauses of the Second Amendment, and the clauses and the amendment in their entirety. Among the key passages:
· “‘Right of the people’ . . . . unambiguously refer[s] to individual rights, not ‘collective’ rights, or rights that may be exercised only through participation in some corporate body.”
· “‘Arms’ means today what it meant in the 18th century: ‘all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.’”
· “The most natural reading of ‘keep Arms’ in the Second Amendment is to ‘have weapons’ . . . . [T]here is no evidence whatsoever to support a military reading of ‘keep arms.’”
· “‘[B]ear arms’ refers to carrying for a particular purpose: confrontation,’” but “in no way connotes participation in a structured military organization.”
Anti-gunners have also wasted much space claiming the Court’s decision in U.S. v. Miller protects only a militiaman’s right. But Heller noted, “Had the [Miller] Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon [a short-barreled shotgun] rather than simply note that the two crooks were not militiamen.”
Focusing on D.C.’s bans, the opinion said, “[T]he inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home ‘the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,’ would fail constitutional muster. . . . It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense. . . .Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.”
The opinion continued, “[T]he District’s requirement that firearms in the home be rendered and kept inoperable at all times . . . makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional. . . . In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home. . . .[T]he enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.”
For more highlights, and links to the full opinions and the briefs in the case, go to http://www.nraila.org/heller
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