by Chris W. Cox, NRA-ILA Executive Director
By now, virtually all Americans, and millions of other people around the world, know that an important battle has been won in the long term war to protect the right of the people to keep and bear arms. On June 26, in the case of District of Columbia v. Heller, the Supreme Court stated outright what its previous decisions had recognized implicitly—that the Second Amendment protects “the individual right to possess and carry weapons in case of confrontation.”
Today, with newspapers, tv stations and the Internet competing for the public’s attention, we live in a world saturated with exaggerations. But it is no exaggeration to say that this victory is huge. In terms of protecting the right to arms for generations to come, the victory in Heller in June 2008 may be akin to the Allies securing the beaches of Normandy in June 1944—not ultimate victory, but a step without which victory cannot be achieved.
Since the 1970s, calls for gun prohibition and severe gun restrictions have been premised on the idea that the Second Amendment protects a privilege to possess arms only when serving on active duty with a militia, or the even more fantastic idea that it protects a state’s power to maintain a militia.
Now, in a 5-4 opinion authored by Justice Antonin Scalia, the Supreme Court has rejected both of those theories. Echoing its decision in U.S. v. Verdugo-Urquidez (1990), the Court said, “‘The people’ . . . unambiguously refers to all members of the political community.”
Among the many reasons the right is individual, the Court observed, is that “the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right.” (Emphasis in the original.) Citing its decision in United States v. Cruikshank (1876), the Court said, “The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’”
D.C.’s Handgun and Self-Defense Bans Overturned
The Heller case revolved around Washington, D.C.’s bans on the registration of handguns and on having any gun in operable condition within the home, both imposed in 1975, and its more recent ban on carrying a gun within the home without a license. The U.S. Court of Appeals for the District of Columbia Circuit struck down all three bans on Second Amendment grounds in the Parker case last year.
The Supreme Court upheld the Court of Appeals decision relative to the 1975 bans, saying “[W]e 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.”
Explaining its holding, the Court 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.”
The District argued that its handgun ban was permissible because the city allows people to acquire and possess some rifles and shotguns. The Court was not convinced, saying “[H]andguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.”
Because the sole plaintiff remaining from the Parker case, Dick Heller, did not challenge D.C.’s ban on carrying a firearm within one’s home without a license, but asked only that the District not deny him such a license on “arbitrary and capricious grounds,” the Court said, “We therefore assume that [D.C.’s] issuance of a license will satisfy [Mr. Heller] and do not address the licensing requirement.”
Beyond the D.C. Gun Bans
In advance of the Court’s ruling, gun control supporters claimed that if D.C.’s gun bans were struck down, bans on other types of firearms—particularly machine guns and so-called “assault weapons”—might be struck down in other jurisdictions. Some went so far as to claim that all federal gun laws might be in jeopardy.
Of course, Heller challenged only two specific D.C. gun laws, so the Court’s decision was not concerned with whether the Second Amendment protects the Right to Keep and Bear Arms other than handguns, nor with any other federal, state or local gun laws.
Yet, perhaps to put a lid on the rabble-rousing, the Court said, “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
And, presumably to put an end to one of the more ridiculous of gun control supporters’ claims, the Court said, “Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”
What other arms might be protected under the Second Amendment might depend upon the extent to which they are owned among the general public, the Court said. Referring to its decision in United States v. Miller (1939)—which suggested that protected arms include those that “bear a reasonable relationship to the preservation or efficiency of a well regulated militia,” which it defined as citizens “bearing arms supplied by themselves and of the kind in common use at the time”—the Heller Court said, “We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”
Clearly, the Second Amendment was intended to prevent the government from prohibiting the private possession of arms that would be necessary for the defense of life and liberty. But devising a full-scale test for determining what arms the people have a right to bear was not a matter before the Court in the Heller case.
A Debt of Gratitude
While the Court based its decision on the writings of the Framers, prior court decisions, and 19th century legal treatises, it also relied heavily on modern scholars whose research has brought to light the overwhelming evidence supporting the traditional understanding of the right to arms and the purpose of the Second Amendment. To these dedicated individuals, gun-owning and non-gun-owning advocates of freedom, we will be indebted for a long time.
The Court cited civil rights attorney Don Kates’s 1983 article demonstrating that state constitutional guarantees of the right to arms for “common defense” derived from the right of self-defense, and attorney and scholar Stephen Halbrook’s research showing that a major purpose of the Fourteenth Amendment and post-Civil War legislation was to protect the right of freedmen to keep and bear arms for self-protection against violence and oppression.
The Court also cited u.c.l.a. law professor Eugene Volokh’s textual analyses of the U.S. and state constitutions; George Mason University law professor Joyce Lee Malcolm’s exposition of the right to arms in 18th century England; and works by Georgetown University law professor Randy Barnett, historian Clayton Cramer and Hamline University law professor Joseph Olson showing that the term “bear arms” was not intended to refer only to bearing arms in a military context.
In support of its finding that handguns are Americans’ preferred arms for defensive purposes, the Court also noted research by Professors Gary Kleck and Marc Gertz, which found that guns—two-thirds of them handguns—are used for protection more than 2 million times a year. The court also noted Kleck’s finding that people who use guns for defense against robbery and assault are less likely to be injured than people who try to defend themselves by other means, or those who do not try to defend themselves by any means.
Many of these historical and criminological findings were brought to the Court’s attention through the dozens of “friend of the court” briefs in the case. Especially worthy of note were Halbrook’s brief on behalf of over 300 members of the U.S. House and Senate; the brief by former Justice Department officials, authored by former Assistant Attorney General Charles Cooper; the brief by state attorneys general, authored by then-Texas Solicitor General Ted Cruz; and a brief for the International Law Enforcement Educators and Trainers Association and other police groups by Independence Institute Research Director David Kopel and California firearms attorney Chuck Michel.
The day after the Heller decision, the NRA filed five lawsuits challenging local gun bans in San Francisco as well as Chicago and several of its suburbs.
The San Francisco lawsuit challenges a local ordinance and lease provisions that prohibit possession of guns by residents of public housing in San Francisco. NRA is joined in that suit by the California Rifle and Pistol Association and the Citizens Committee for the Right to Keep and Bear Arms.
The Chicago case challenges a handgun ban nearly identical to the law struck down in Washington, D.C. The other Illinois suits challenge handgun bans in the suburban towns of Evanston, Morton Grove and Oak Park. (Already, the dominos have started to fall, with Morton Grove officials openly talking about repealing their law.)
All five suits raise the issue of how the Second Amendment may apply to the states through the Fourteenth Amendment, an issue known in constitutional law as the “incorporation” doctrine. Because Washington, D.C. is not a state, incorporation was not specifically addressed in Heller; but the decision did repeatedly equate the Second Amendment to the First and Fourth Amendments, which have applied to the states for 80 years.
There’s no question there will be years of litigation before we see the full effect of the Heller decision. The outlook in our nation’s courts may change, too—especially since the next president is likely to have the chance to appoint three or more Supreme Court justices. As we’ve said many times before, that’s a thought every freedom-loving American should take into the voting booth this Election Day.