District of Columbia v. Heller
Encyclopedia
District of Columbia v. Heller, 554 U.S. 570 (2008), was a landmark case
in which the Supreme Court of the United States
held that the Second Amendment to the United States Constitution
protects an individual's right to possess a firearm
for traditionally lawful purposes in federal enclaves, such as self-defense within the home. The decision did not address the question of whether the Second Amendment extends beyond federal enclaves to the states
, which was addressed later by McDonald v. Chicago
(2010). It was the first Supreme Court case in United States history to decide whether the Second Amendment protects an individual right to keep and bear arms for self defense.
On June 26, 2008, the Supreme Court affirmed the Court of Appeals for the D.C. Circuit
in Parker v. District of Columbia. The Court of Appeals had struck down
provisions of the Firearms Control Regulations Act of 1975
as unconstitutional, determined that handguns are "arms" for the purposes of the Second Amendment
, found that the District of Columbia's regulations act was an unconstitutional banning, and struck down the portion of the regulations act that requires all firearms including rifle
s and shotgun
s be kept "unloaded and disassembled or bound by a trigger lock
." "Prior to this decision the Firearms Control Regulation Act of 1975 also restricted residents from owning handguns except for those registered prior to 1975."
, a Senior Fellow at the Cato Institute
, began vetting plaintiffs with Clark M. Neily III for a planned Second Amendment lawsuit that he would personally finance. Although he himself had never owned a gun, as a Constitutional scholar he had an academic interest in the subject and wanted to model his campaign after the legal strategies of Thurgood Marshall
, who had successfully led the challenges that overturned school segregation. They aimed for a group that would be diverse in terms of gender, race, economic background, and age, and selected six plaintiffs from their mid-20s to early 60s, three men and three women, four white and two black:
Previous federal case law pertaining to the question of an individual's right to bear arms included United States v. Emerson
, 270 F.3d
203 (5th Cir.
2001) which supported the right and Silveira v. Lockyer
, 312 F.3d 1052 (9th Cir.
2002) which opposed the right. The Supreme Court ruling in United States v. Miller
, 307 U.S. 174 (1939) was interpreted to support both sides of the issue.
filed a lawsuit in the District Court for the District of Columbia
, challenging the constitutionality of provisions of the Firearms Control Regulations Act of 1975
, a local law (part of the District of Columbia Code) enacted pursuant to District of Columbia home rule
. This law restricted residents from owning handgun
s, excluding those grandfathered in
by registration prior to 1975 and those possessed by active and retired law enforcement officers. The law also required that all firearms including rifle
s and shotgun
s be kept "unloaded and disassembled or bound by a trigger lock." District Court Judge Ricardo M. Urbina
dismissed the lawsuit.
reversed the dismissal in a 2-1 decision. The Court of Appeals struck down provisions of the Firearms Control Regulations Act as unconstitutional. Judges Karen L. Henderson
, Thomas B. Griffith
and Laurence H. Silberman
formed the Court of Appeals panel, with Senior Circuit Judge Silberman writing the court's opinion and Circuit Judge Henderson dissenting.
The court's opinion first addressed whether appellants have standing
to sue for declaratory and injunctive relief in section II (slip op. at 5–12). The court concluded that of the six plaintiffs, only Heller — who applied for a handgun permit but was denied — had standing.
The court then held that the Second Amendment "protects an individual right to keep and bear arms", saying that the right was "premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad)." They also noted that though the right to bear arms also helped preserve the citizen militia, "the activities [the Amendment] protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia." The court determined that handguns are "Arms" and concluded that thus they may not be banned by the District of Columbia; however, they said that Second Amendment rights are subject to reasonable restrictions.
The court also struck down the portion of the law that requires all firearms including rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock." The District argued that there is an implicit self-defense exception to these provisions, but the D.C. Circuit rejected this view, saying that the requirement amounted to a complete ban on functional firearms and prohibition on use for self-defense:
petitioned for rehearing en banc
, arguing that the ruling creates inter- and intra-jurisdictional conflict. On May 8, the Court of Appeals for the D.C. Circuit denied the request to rehear the case, by a 6-4 vote.
This represented the first time since the 1939 case United States v. Miller
that the Supreme Court had directly addressed the scope of the Second Amendment.
(friend of the court) briefs, about 47 urging the court to affirm the case and about 20 to remand it.
A majority of the members of Congress
signed the brief authored by Stephen P. Halbrook advising that the case be affirmed overturning the ban on handguns not otherwise restricted by Congress. Vice President
Dick Cheney
joined in this brief, acting in his role as President of the United States Senate, and breaking with the George W. Bush
administration's official position. Then Republican candidate for President and Arizona Senator John McCain
also signed the brief. Democratic candidate and then Illinois Senator Barack Obama
did not.
A majority of the states
signed the brief of Texas
Attorney General Greg Abbott
advising that the case be affirmed, while at the same time emphasizing that the states have a strong interest in maintaining each of the states' laws prohibiting and regulating firearms.
Law enforcement organizations, including the Fraternal Order of Police
and the Southern States Police Benevolent Association, also filed a brief urging that the case be affirmed.
A number of organizations signed friend of the court briefs advising that the case be remanded, including the United States Department of Justice
and Attorneys General of New York
, Hawaii
, Maryland
, Massachusetts
, New Jersey
, and Puerto Rico
. Additionally, friend of the court briefs to remand were filed by a spectrum of religious and anti-violence groups, a number of cities and mayors, and many police chiefs and law enforcement organizations.
s in the case on March 18, 2008. Both the transcript and the audio of the argument have been released. Each side was initially allotted 30 minutes to argue its case, with U.S. Solicitor General
Paul D. Clement allotted 15 minutes to present the federal government's views. During the argument, however, extra time was extended to the parties, and the argument ran 23 minutes over the allotted time.
Walter E. Dellinger
of the law firm O'Melveny & Myers, also a professor at Duke University Law School and former Acting Solicitor General, argued the District's side before the Supreme Court. Dellinger was assisted by Thomas Goldstein of Akin Gump Strauss Hauer & Feld
, Robert Long of Covington & Burling
and D.C. Solicitor General Todd Kim
. The law firms assisting the District worked pro bono
.
Alan Gura
, of the D.C.-based law firm Gura & Possessky, was lead counsel for Heller, and argued on his behalf before the Supreme Court. Robert Levy, a senior fellow at the Cato Institute
, and Clark Neily, a senior attorney at the Institute for Justice
, were his co-counsel.
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. Pp. 2–53.
Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not 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. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.
The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s 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. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. 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 hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64.
The Opinion of the Court, delivered by Justice Scalia, was joined by Chief Justice John G. Roberts, Jr. and by Justices Anthony M. Kennedy, Clarence Thomas
and Samuel A. Alito Jr.
The Scalia majority invokes much historical material to support its finding that the right to keep and bear arms belongs to individuals; more precisely, Scalia asserts in the Court's opinion that the "people" to whom the Second Amendment right is accorded are the same "people" who enjoy First and Fourth Amendment protection: "'The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.' United States v. Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings...."
With that finding as anchor, the Court ruled a total ban on operative handgun
s in the home is unconstitutional, as the ban runs afoul of both the self-defense purpose of the Second Amendment—a purpose not previously articulated by the Court—and the "in common use at the time" prong of the Miller decision
: since handguns are in common use, their ownership is protected.
The Court applies as remedy that "[a]ssuming 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." The Court, additionally, hinted that other remedy might be available in the form of eliminating the license requirement for carry in the home, but that no such relief had been requested: "Respondent conceded at oral argument that he does not 'have a problem with . . . licensing' and that the District's law is permissible so long as it is 'not enforced in an arbitrary and capricious manner.' Tr. of Oral Arg. 74–75. We therefore assume that petitioners' issuance of a license will satisfy respondent’s prayer for relief and do not address the licensing requirement."
In regard to the scope of the right, the Court wrote, in an obiter dictum
, "Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, 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."
The Court also added dicta regarding the private ownership of machine guns. In doing so, it suggested the elevation of the "in common use at the time" prong of the Miller decision
, which by itself protects handguns, over the first prong (protecting arms that "have some reasonable relationship to the preservation or efficiency of a well regulated militia"), which may not by itself protect machine guns: "It may be objected that if weapons that are most useful in military service—M16 rifle
s and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home."
The Court did not address which level of judicial review
should be used by lower courts in deciding future cases claiming infringement of the right to keep and bear arms: "[S]ince this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field." The Court states, "If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect." Also, regarding Justice Breyer's proposal of a "judge-empowering 'interest-balancing inquiry,'" the Court states, "We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding 'interest-balancing' approach."
, Justice John Paul Stevens
stated that the court's judgment was "a strained and unpersuasive reading" which overturned longstanding precedent
, and that the court had "bestowed a dramatic upheaval in the law". Stevens also stated that the amendment was notable for the "omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense" which was present in the Declarations of Rights of Pennsylvania
and Vermont
.
The Stevens dissent seems to rest on four main points of disagreement: that the Founders would have made the individual right aspect of the Second Amendment express if that was what was intended; that the "militia" preamble and exact phrase "to keep and bear arms" demands the conclusion that the Second Amendment touches on state militia service only; that many lower courts' later "collective-right" reading of the Miller decision constitutes stare decisis
, which may only be overturned at great peril; and that the Court has not considered gun-control laws (e.g., the National Firearms Act
) unconstitutional. The dissent concludes, "The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.... I could not possibly conclude that the Framers made such a choice."
Justice Stevens' dissent was joined by Justices David Souter
, Ruth Bader Ginsburg
, and Stephen Breyer
.
Justice Breyer filed a separate dissenting opinion, joined by the same dissenting Justices, which sought to demonstrate that, starting from the premise of an individual-rights view, the District of Columbia's handgun ban and trigger lock requirement would nevertheless be permissible limitations on the right.
The Breyer dissent looks to early municipal fire-safety laws that forbade the storage of gunpowder (and in Boston the carrying of loaded arms into certain buildings), and on nuisance laws providing fines or loss of firearm for imprudent usage, as demonstrating the Second Amendment has been understood to have no impact on the regulation of civilian firearms. The dissent argues the public safety necessity of gun-control laws, quoting that "guns were responsible for 69 deaths in this country each day.'"
With these two supports, the Breyer dissent goes on to conclude, "there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas." It proposes that firearms laws be reviewed by balancing the interests (i.e., "'interest-balancing' approach") of Second Amendment protections against the government's compelling interest of preventing crime.
The Breyer dissent also objected to the "common use" distinction used by the majority to distinguish handguns from machineguns: "But what sense does this approach make? According to the majority’s reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machine-gun...There is no basis for believing that the Framers intended such circular reasoning."
(NRA) was initially not supportive of the case because it feared the case might not be successful. The NRA later reconciled and supported the plaintiffs. The Brady Campaign to Prevent Gun Violence lobbied to have the D.C. gun laws changed so the case would not eligible to be heard by the Supreme Court.
senior fellow Robert Levy, co-counsel to the Parker plaintiffs, has stated that the Parker plaintiffs "faced repeated attempts by the NRA to derail the litigation." He also stated that "The N.R.A.’s interference in this process set us back and almost killed the case. It was a very acrimonious relationship."
Wayne LaPierre
, the NRA's chief executive officer, confirmed the NRA's misgivings. "There was a real dispute on our side among the constitutional scholars about whether there was a majority of justices on the Supreme Court who would support the Constitution as written," Mr. LaPierre said. Both Levy and LaPierre said the NRA and Mr. Levy's team were now on good terms.
Elaine McArdle wrote in the Harvard Law Bulletin: "If Parker is the long-awaited "clean" case, one reason may be that proponents of the individual-rights view of the Second Amendment—including the National Rifle Association, which filed an amicus brief in the case—have learned from earlier defeats, and crafted strategies to maximize the chances of Supreme Court review." The NRA did eventually support the litigation by filing an amicus brief
with the Court arguing that the plaintiffs in Parker had standing to sue and that the D.C. ban was unconstitutional under the Second Amendment.
Chris Cox, executive director of the NRA's Institute for Legislative Action, had indicated support of federal legislation which would repeal the D.C. gun ban. Opponents of the legislation argued that this would have rendered the Parker case moot, and would have effectively eliminated the possibility that the case would be heard by the Supreme Court.
Immediately after the Supreme Court's ruling, the NRA filed a lawsuit against the city of Chicago
over its handgun ban, followed the next day by a lawsuit against the city of San Francisco
over its ban of handguns in public housing.
against those arguments in both the District and Circuit courts.
Paul Helmke, the president of the Brady Campaign, suggested to D.C. before the Court granted certiorari that it modify its gun laws rather than appeal to the Supreme Court. Helmke has written that if the Supreme Court upholds the Circuit court ruling, it "could lead to all current and proposed firearms laws being called into question."
After the ruling, Paul Helmke stated that, "the classic ‘slippery slope’ argument", "that even modest gun control would lead down the path to a complete ban on gun ownership", "is now gone." Helmke added that, "The Court also rejected the absolutist misreading of the Second Amendment that some use to argue ‘any gun, any time for anyone,’ which many politicians have used as an excuse to do nothing about the scourge of gun violence in our country and to block passage of common sense gun laws."
Harvard Law School
professor Laurence Tribe
contended that the Second Amendment protects an individual right, and predicted that if Parker is reviewed by the Supreme Court "there's a really quite decent chance that it will be affirmed." However, Professor Tribe has also argued that the District's ban on one class of weapons does not violate the Second Amendment even under an individual rights view.
Erwin Chemerinsky
, then of Duke Law School
and now dean of the University of California, Irvine School of Law
, argued that the District of Columbia's handgun laws, even assuming an "individual rights" interpretation of the Second Amendment, could be justified as reasonable regulations and thus upheld as constitutional. Professor Chemerinsky believes that the regulation of guns should be analyzed in the same way "as other regulation of property under modern constitutional law" and "be allowed so long as it is rationally related to achieving a legitimate government purpose
." However, the dicta in Heller seems to defeat Chemerinsky's view (stated prior to the decision), in that the majority suggests that applying a mere rational basis analysis is an incorrect reading of the Constitution and would, in fact, defeat the entire purpose of the Second Amendment.
Clark Neily, an attorney for Dick Heller in this case, has said regarding Heller:
Richard Posner
, judge for the United States Court of Appeals for the Seventh Circuit
, compares Heller to Roe v. Wade
inasmuch as it created a federal constitutional right that did not previously exist, and he asserts that the originalist method
—to which Justice Antonin Scalia
adheres—would have yielded the opposite result of the majority opinion.
J. Harvie Wilkinson III, chief judge of United States Court of Appeals for the Fourth Circuit
, consents to Posner's analysis, stating that Heller “encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts.”
Jeffrey M. Shaman, law professor at DePaul University
, delivered a strong criticism of the majority opinion in Heller, stating that Scalia's “exposition of the Second Amendment in Heller is bad history – simplistic analysis that ignores the complexities of historical research.”
Dick Heller's application to register his semi-automatic pistol was rejected because the gun was a bottom-loading weapon, and according to the District's interpretation, all bottom-loading guns, including magazine-fed non-assault-style rifles, are outlawed because they are grouped with machine gun
s. Revolver
s will likely not fall under such a ban.
On December 16, 2008 the D.C. Council unanimously passed the Firearms Registration Emergency Amendment Act of 2008 which addresses the issues raised in the Heller Supreme Court decision, and also puts in place a number of registration requirements to update and strengthen the District's gun laws.
Scalia's opinion for the majority provided 2nd Amendment protection for commonly used and popular handguns but not for atypical arms or arms that are used for unlawful purposes such as short-barreled shotguns. Scalia stated: "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." "We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179." "We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." Furthermore, military grade weapons not being the sort of weapons that are possessed at home that would be brought to militia duty are not the sort of lawful weapon conceived of being protected. "It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty." Therefore, weapons that are most useful in military service— M-16 rifles and weapons like it - are also not provided with 2nd Amendment protection.
The courts have upheld every one of these laws as being constitutional. The basis for the lower court rulings is the paragraph near the end of the Heller ruling that states:
Consistently since the Heller ruling, the lower federal courts have ruled that almost all gun control measures as presently legislated are lawful and that according to UCLA professor of constitutional law Adam Winkler: "What gun rights advocates are discovering is that the vast majority of gun control laws fit within these categories."
Robert Levy, the executive director of the Cato Institute who funded the Heller litigation has commented on this passage describing constitutionally acceptable forms of prohibitions of firearms: "I would have preferred that that not have been there," and that this paragraph in Scalia's opinion "created more confusion than light."
Similar to the lifting of gun bans mentioned previously in the settlements of lawsuits filed post-Heller, in US v. Arzberger, also decided post-Heller, it was noted:
Michael Bloomberg
said that "all of the laws on the books in New York State and New York City" would be allowed by the ruling as "reasonable regulation." Robert Levy has stated that the current New York City gun laws are "not much different" from the D.C. ban that has been overturned. The National Rifle Association
and other gun-rights advocates have not ruled out suing New York City, especially over the definition of "reasonable regulation".
Southern District of New York Magistrate Judge James Francis has said that, prior to Heller, it would not have been considered unreasonable to require a defendant to surrender a firearm as a condition of pretrial release. Specifically, according to Judge Francis:
Maloney v. Rice (a.k.a. Maloney v. Cuomo and Maloney v. Spitzer), originally held that the 2nd Amendment does not apply to the states in the Second Circuit. The case involved a state ban on Nunchaku
sticks (a martial arts weapon) in New York. In a memorandum opinion dated June 29, 2010, the Supreme Court vacated the Second Circuit decision in Maloney and remanded for further consideration in light of the holding in McDonald v. Chicago
that the Second Amendment does apply to the states. The Second Circuit has remanded the case to the trial court.
On June 28, 2010, the Supreme Court reversed the Court of Appeals for the Seventh Circuit's decision in McDonald v. Chicago
and remanded it back to Seventh Circuit to resolve conflicts between certain Chicago gun restrictions and the Second Amendment
.
Chicago's handgun law was likened to the D.C. handgun ban by Justice Breyer.
Similarly, three Illinois municipalities with gun control measures on the books that previously had banned all handguns have rescinded their handgun bans. These cities were Morton Grove, Illinois
, Wilmette, another Illinois village, and Evanston, Illinois which enacted a partial repeal of their handgun ban.
In Ezell v. Chicago, decided July 6, 2011, the Seventh Circuit reversed a district court decision that the post-McDonald measures adopted by the City of Chicago were constitutional. The Chicago law required firearms training in a shooting range in order to obtain a gun permit, but also banned shooting ranges within the City of Chicago. The City had argued that applicants could obtain their training at gun ranges in the suburbs. The opinion noted that Chicago could not infringe Second Amendment rights on the grounds that they could be exercised elsewhere, any more than it could infringe the right to freedom of speech on the grounds that citizens could speak elsewhere.
, the San Francisco Housing Authority reached a settlement out of court with the NRA, which allows residents to possess legal firearms within a SFHA apartment building. The San Francisco lawsuit resulted in the elimination of the gun ban from the SF Housing Authority residential lease terms. Tim Larsen speaking for the Housing Authority said that they never intended to enforce its 2005 housing lease gun ban against law-abiding gun owners and has never done so.
has written that he is inclined to believe that the Heller will be relatively insignificant to the practice of law in the long run but that it will have significance to other groups interested in cultural literacy and constitutional designers. Both Levinson and Mark Tushnet
have speculated that it is quite unlikely that the case will be studied as part of casebooks of future law schools. As was predicted, a large surge of court cases was seen in lower federal courts in the aftermath of the 2008 ruling. Over 80 cases have been filed seeking to overturn existing gun laws. As of March 2009, not a single law had been invalidated as a result of Heller; however, the decision in McDonald v. Chicago
, which was brought in response to Heller and decided in 2010, did invalidate much of Chicago's gun purchase and registration laws, and has called into question many other state and local laws restricting purchase, possession and carry of firearms.
Legal case
A legal case is a dispute between opposing parties resolved by a court, or by some equivalent legal process. A legal case may be either civil or criminal...
in which the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
held that the Second Amendment to the United States Constitution
Second Amendment to the United States Constitution
The Second Amendment to the United States Constitution is the part of the United States Bill of Rights that protects the right of the people to keep and bear arms. It was adopted on December 15, 1791, along with the rest of the Bill of Rights.In 2008 and 2010, the Supreme Court issued two Second...
protects an individual's right to possess a firearm
Firearm
A firearm is a weapon that launches one, or many, projectile at high velocity through confined burning of a propellant. This subsonic burning process is technically known as deflagration, as opposed to supersonic combustion known as a detonation. In older firearms, the propellant was typically...
for traditionally lawful purposes in federal enclaves, such as self-defense within the home. The decision did not address the question of whether the Second Amendment extends beyond federal enclaves to the states
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
, which was addressed later by McDonald v. Chicago
McDonald v. Chicago
McDonald v. Chicago, 561 U.S. 3025, 130 S.Ct. 3020 , was a landmark decision of the Supreme Court of the United States that determined whether the Second Amendment applies to the individual states...
(2010). It was the first Supreme Court case in United States history to decide whether the Second Amendment protects an individual right to keep and bear arms for self defense.
On June 26, 2008, the Supreme Court affirmed the Court of Appeals for the D.C. Circuit
United States Court of Appeals for the District of Columbia Circuit
The United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are heard on a...
in Parker v. District of Columbia. The Court of Appeals had struck down
Judicial review in the United States
Judicial review in the United States refers to the power of a court to review the constitutionality of a statute or treaty, or to review an administrative regulation for consistency with either a statute, a treaty, or the Constitution itself....
provisions of the Firearms Control Regulations Act of 1975
Firearms Control Regulations Act of 1975
The Firearms Control Regulations Act of 1975 was passed by the District of Columbia city council on September 24, 1976. On June 26, 2008, in the historic case of District of Columbia v. Heller, the Supreme Court of the United States determined that the ban and trigger lock provision violate the...
as unconstitutional, determined that handguns are "arms" for the purposes of the Second Amendment
Second Amendment to the United States Constitution
The Second Amendment to the United States Constitution is the part of the United States Bill of Rights that protects the right of the people to keep and bear arms. It was adopted on December 15, 1791, along with the rest of the Bill of Rights.In 2008 and 2010, the Supreme Court issued two Second...
, found that the District of Columbia's regulations act was an unconstitutional banning, and struck down the portion of the regulations act that requires all firearms including rifle
Rifle
A rifle is a firearm designed to be fired from the shoulder, with a barrel that has a helical groove or pattern of grooves cut into the barrel walls. The raised areas of the rifling are called "lands," which make contact with the projectile , imparting spin around an axis corresponding to the...
s and shotgun
Shotgun
A shotgun is a firearm that is usually designed to be fired from the shoulder, which uses the energy of a fixed shell to fire a number of small spherical pellets called shot, or a solid projectile called a slug...
s be kept "unloaded and disassembled or bound by a trigger lock
Trigger lock
A trigger lock is a device designed to prevent a firearm from being discharged while the device is in place. Generally, two pieces come together from either side behind the trigger and are locked in place, which can be unlocked with a key or combination. This physically prevents the trigger from...
." "Prior to this decision the Firearms Control Regulation Act of 1975 also restricted residents from owning handguns except for those registered prior to 1975."
Lower Court Background
In 2002, Robert A. LevyRobert A. Levy
Robert A. Levy is the chairman of the libertarian Cato Institute and the organizer and financier behind District of Columbia v. Heller, the Supreme Court Case that established the Second Amendment as affirming an individual right to gun ownership. He is a Cato senior fellow and an author and pundit...
, a Senior Fellow at the Cato Institute
Cato Institute
The Cato Institute is a libertarian think tank headquartered in Washington, D.C. It was founded in 1977 by Edward H. Crane, who remains president and CEO, and Charles Koch, chairman of the board and chief executive officer of the conglomerate Koch Industries, Inc., the largest privately held...
, began vetting plaintiffs with Clark M. Neily III for a planned Second Amendment lawsuit that he would personally finance. Although he himself had never owned a gun, as a Constitutional scholar he had an academic interest in the subject and wanted to model his campaign after the legal strategies of Thurgood Marshall
Thurgood Marshall
Thurgood Marshall was an Associate Justice of the United States Supreme Court, serving from October 1967 until October 1991...
, who had successfully led the challenges that overturned school segregation. They aimed for a group that would be diverse in terms of gender, race, economic background, and age, and selected six plaintiffs from their mid-20s to early 60s, three men and three women, four white and two black:
- Shelly Parker – a software designer and former nurse who had been active in trying to rid her neighborhood of drugs. Parker is a single woman whose life had been threatened on numerous occasions by drug dealers who have sometimes tried to break into her house.
- Tom G. PalmerTom G. PalmerTom Gordon Palmer is a Senior Fellow at the Cato Institute, director of the Institute's educational division, , Vice President for International Programs at the Atlas Economic Research Foundation, and General Director of the -Professional life:Palmer earned his B.A. in liberal arts from St. John's...
– a colleague of Robert A. Levy at the Cato Institute and the only plaintiff that Levy knew before the case began. Palmer, who is gay, defended himself with a 9mm handgun in 1982. While walking with a friend in San Jose, California, he was accosted by a gang of about 20 young men who used profane language regarding his sexual orientation and threatened his life. When he produced his gun, the men fled. Palmer believes that the handgun saved his life. - Gillian St. Lawrence – a mortgage broker who lives in the Georgetown section of D.C. and who owns several legally registered long guns which she uses for recreation in nearby Chantilly, VirginiaChantilly, VirginiaChantilly is an unincorporated community located in western Fairfax County and southeastern Loudoun County of Northern Virginia. Recognized by the U.S. Census Bureau as a census designated place , the community population was 23,039 as of the 2010 census -- down from 41,041 in 2000, due to the...
. It had taken St. Lawrence two years to complete the registration process. She wanted to be able to use these guns to defend herself in her home and to be able to register a handgun. - Tracey Ambeau (now Tracey Hanson) – an employee of the U.S. Department of Agriculture. Originally from St. Gabriel, Louisiana, she lives in the Adams MorganAdams MorganAdams Morgan is a culturally diverse neighborhood in Northwest Washington, D.C., centered at the intersection of 18th Street and Columbia Road. Adams Morgan is considered the center of Washington's Hispanic immigrant community, and is a major night life area with many bars and restaurants,...
neighborhood of D.C. with her husband, Andrew Hanson, who is from Waterloo, Iowa. They live in a high-crime neighborhood near Union Station in D. C. She grew up around guns and wanted one to defend her home. - George Lyon – a communications lawyer who had previously contacted the National Rifle AssociationNational Rifle AssociationThe National Rifle Association of America is an American non-profit 501 civil rights organization which advocates for the protection of the Second Amendment of the United States Bill of Rights and the promotion of firearm ownership rights as well as marksmanship, firearm safety, and the protection...
about filing a lawsuit to challenge the D.C. gun laws. Lyon held D.C. licenses for a shotgun and a rifle, but wanted to have a handgun in his home. - Dick Heller – a licensed special police officer for the District of Columbia. For his job, Heller carried a gun in federal office buildings, but was not allowed to have one in his home. Heller had lived in southeast D.C. near the Kentucky Courts public housing complex since 1970 and had seen the neighborhood "transformed from a child-friendly welfare complex to a drug haven". Heller had also approached the National Rifle Association about a lawsuit to overturn the D.C. gun ban, but the NRA declined.
Previous federal case law pertaining to the question of an individual's right to bear arms included United States v. Emerson
United States v. Emerson
United States v. Emerson, 270 F.3d 203 , is a decision by the United States Court of Appeals for the Fifth Circuit holding that the Second Amendment to the United States Constitution guarantees individuals the right to bear arms...
, 270 F.3d
Federal Reporter
The Federal Reporter is a case law reporter in the United States that is published by West Publishing. It begins with cases decided in 1880. It was preceded by Federal Cases...
203 (5th Cir.
United States Court of Appeals for the Fifth Circuit
The United States Court of Appeals for the Fifth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Louisiana* Middle District of Louisiana...
2001) which supported the right and Silveira v. Lockyer
Silveira v. Lockyer
Silveira v. Lockyer, 312 F.3d 1052 , is a decision by the United States Court of Appeals for the Ninth Circuit holding that the Second Amendment to the United States Constitution does not guarantee individuals the right to bear arms...
, 312 F.3d 1052 (9th Cir.
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
2002) which opposed the right. The Supreme Court ruling in United States v. Miller
United States v. Miller
United States v. Miller, 307 U.S. 174 , was the first Supreme Court of the United States decision to involve the Second Amendment to the United States Constitution. Miller is a controversial decision in the ongoing American gun politics debate, as both sides claim that it supports their...
, 307 U.S. 174 (1939) was interpreted to support both sides of the issue.
District Court
In February 2003, the six residents of Washington, D.C.Washington, D.C.
Washington, D.C., formally the District of Columbia and commonly referred to as Washington, "the District", or simply D.C., is the capital of the United States. On July 16, 1790, the United States Congress approved the creation of a permanent national capital as permitted by the U.S. Constitution....
filed a lawsuit in the District Court for the District of Columbia
United States District Court for the District of Columbia
The United States District Court for the District of Columbia is a federal district court. Appeals from the District are taken to the United States Court of Appeals for the District of Columbia Circuit The United States District Court for the District of Columbia (in case citations, D.D.C.) is a...
, challenging the constitutionality of provisions of the Firearms Control Regulations Act of 1975
Firearms Control Regulations Act of 1975
The Firearms Control Regulations Act of 1975 was passed by the District of Columbia city council on September 24, 1976. On June 26, 2008, in the historic case of District of Columbia v. Heller, the Supreme Court of the United States determined that the ban and trigger lock provision violate the...
, a local law (part of the District of Columbia Code) enacted pursuant to District of Columbia home rule
District of Columbia home rule
District of Columbia home rule is a term to describe the various means by which residents of the District of Columbia are able to govern their local affairs...
. This law restricted residents from owning handgun
Handgun
A handgun is a firearm designed to be held and operated by one hand. This characteristic differentiates handguns as a general class of firearms from long guns such as rifles and shotguns ....
s, excluding those grandfathered in
Grandfather clause
Grandfather clause is a legal term used to describe a situation in which an old rule continues to apply to some existing situations, while a new rule will apply to all future situations. It is often used as a verb: to grandfather means to grant such an exemption...
by registration prior to 1975 and those possessed by active and retired law enforcement officers. The law also required that all firearms including rifle
Rifle
A rifle is a firearm designed to be fired from the shoulder, with a barrel that has a helical groove or pattern of grooves cut into the barrel walls. The raised areas of the rifling are called "lands," which make contact with the projectile , imparting spin around an axis corresponding to the...
s and shotgun
Shotgun
A shotgun is a firearm that is usually designed to be fired from the shoulder, which uses the energy of a fixed shell to fire a number of small spherical pellets called shot, or a solid projectile called a slug...
s be kept "unloaded and disassembled or bound by a trigger lock." District Court Judge Ricardo M. Urbina
Ricardo M. Urbina
Ricardo M. Urbina is a United States District Court judge in Washington, DC. He has taken senior status.Urbina earned a B.A. from Georgetown University in 1967. He received his law degree from the Law Center at Georgetown University in 1970. He began his legal career as a public defender. He...
dismissed the lawsuit.
Court of Appeals
On appeal, the U.S. Court of Appeals for the D.C. CircuitUnited States Court of Appeals for the District of Columbia Circuit
The United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are heard on a...
reversed the dismissal in a 2-1 decision. The Court of Appeals struck down provisions of the Firearms Control Regulations Act as unconstitutional. Judges Karen L. Henderson
Karen L. Henderson
Karen LeCraft Henderson is a United States federal judge who was appointed to the United States Court of Appeals for the District of Columbia Circuit in July 1990, by President George H. W. Bush.-Early life, education, and career:...
, Thomas B. Griffith
Thomas B. Griffith
Thomas Beall Griffith is a federal judge on the United States Court of Appeals for the District of Columbia Circuit. Before his appointment to the bench he was Senate Legal Counsel, the chief legal officer of the United States Senate...
and Laurence H. Silberman
Laurence H. Silberman
Laurence Hirsch Silberman is a senior federal judge on the United States Court of Appeals for the District of Columbia Circuit. He was appointed in October 1985 by Ronald Reagan and took senior status on November 1, 2000. He continues to serve on the court...
formed the Court of Appeals panel, with Senior Circuit Judge Silberman writing the court's opinion and Circuit Judge Henderson dissenting.
The court's opinion first addressed whether appellants have standing
Standing (law)
In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case...
to sue for declaratory and injunctive relief in section II (slip op. at 5–12). The court concluded that of the six plaintiffs, only Heller — who applied for a handgun permit but was denied — had standing.
The court then held that the Second Amendment "protects an individual right to keep and bear arms", saying that the right was "premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad)." They also noted that though the right to bear arms also helped preserve the citizen militia, "the activities [the Amendment] protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia." The court determined that handguns are "Arms" and concluded that thus they may not be banned by the District of Columbia; however, they said that Second Amendment rights are subject to reasonable restrictions.
The court also struck down the portion of the law that requires all firearms including rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock." The District argued that there is an implicit self-defense exception to these provisions, but the D.C. Circuit rejected this view, saying that the requirement amounted to a complete ban on functional firearms and prohibition on use for self-defense:
Henderson's dissent
In her dissent, Circuit Judge Henderson stated that Second Amendment rights did not extend to residents of Washington D.C., writing:Petition for rehearing
In April 2007, the District and Mayor Adrian FentyAdrian Fenty
Adrian Malik Fenty was the sixth, and at age 36, the youngest, mayor of the District of Columbia. He served one term—from 2007 to 2011—losing his bid for reelection at the primary level to Democrat Vincent C. Gray...
petitioned for rehearing en banc
En banc
En banc, in banc, in banco or in bank is a French term used to refer to the hearing of a legal case where all judges of a court will hear the case , rather than a panel of them. It is often used for unusually complex cases or cases considered to be of greater importance...
, arguing that the ruling creates inter- and intra-jurisdictional conflict. On May 8, the Court of Appeals for the D.C. Circuit denied the request to rehear the case, by a 6-4 vote.
Supreme Court
The defendants petitioned the United States Supreme Court to hear the case. The plaintiffs did not oppose but, in fact, welcomed the petition. The Supreme Court agreed to hear the case on November 20, 2007. The court rephrased the question to be decided as follows:This represented the first time since the 1939 case United States v. Miller
United States v. Miller
United States v. Miller, 307 U.S. 174 , was the first Supreme Court of the United States decision to involve the Second Amendment to the United States Constitution. Miller is a controversial decision in the ongoing American gun politics debate, as both sides claim that it supports their...
that the Supreme Court had directly addressed the scope of the Second Amendment.
Amicus curiae briefs
Because of the controversial nature of the case, it garnered much attention from many groups on both sides of the gun rights issue. Many of those groups filed amicus curiaeAmicus curiae
An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...
(friend of the court) briefs, about 47 urging the court to affirm the case and about 20 to remand it.
A majority of the members of Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
signed the brief authored by Stephen P. Halbrook advising that the case be affirmed overturning the ban on handguns not otherwise restricted by Congress. Vice President
Vice President of the United States
The Vice President of the United States is the holder of a public office created by the United States Constitution. The Vice President, together with the President of the United States, is indirectly elected by the people, through the Electoral College, to a four-year term...
Dick Cheney
Dick Cheney
Richard Bruce "Dick" Cheney served as the 46th Vice President of the United States , under George W. Bush....
joined in this brief, acting in his role as President of the United States Senate, and breaking with the George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
administration's official position. Then Republican candidate for President and Arizona Senator John McCain
John McCain
John Sidney McCain III is the senior United States Senator from Arizona. He was the Republican nominee for president in the 2008 United States election....
also signed the brief. Democratic candidate and then Illinois Senator Barack Obama
Barack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...
did not.
A majority of the states
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
signed the brief of Texas
Texas
Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...
Attorney General Greg Abbott
Greg Abbott
Gregory Wayne "Greg" Abbott is the Texas Attorney General, and is the second Republican since Reconstruction to serve in that role. Abbott was sworn in on December 2, 2002, following John Cornyn's election to the U.S. Senate...
advising that the case be affirmed, while at the same time emphasizing that the states have a strong interest in maintaining each of the states' laws prohibiting and regulating firearms.
Law enforcement organizations, including the Fraternal Order of Police
Fraternal Order of Police
The Fraternal Order of Police is an organization of sworn law enforcement officers in the United States. It claims a membership of over 325,000 members organized in 2100 local chapters , organized into local lodges, state lodges, and the national Grand Lodge...
and the Southern States Police Benevolent Association, also filed a brief urging that the case be affirmed.
A number of organizations signed friend of the court briefs advising that the case be remanded, including the United States Department of Justice
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
and Attorneys General of New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
, Hawaii
Hawaii
Hawaii is the newest of the 50 U.S. states , and is the only U.S. state made up entirely of islands. It is the northernmost island group in Polynesia, occupying most of an archipelago in the central Pacific Ocean, southwest of the continental United States, southeast of Japan, and northeast of...
, Maryland
Maryland
Maryland is a U.S. state located in the Mid Atlantic region of the United States, bordering Virginia, West Virginia, and the District of Columbia to its south and west; Pennsylvania to its north; and Delaware to its east...
, Massachusetts
Massachusetts
The Commonwealth of Massachusetts is a state in the New England region of the northeastern United States of America. It is bordered by Rhode Island and Connecticut to the south, New York to the west, and Vermont and New Hampshire to the north; at its east lies the Atlantic Ocean. As of the 2010...
, New Jersey
New Jersey
New Jersey is a state in the Northeastern and Middle Atlantic regions of the United States. , its population was 8,791,894. It is bordered on the north and east by the state of New York, on the southeast and south by the Atlantic Ocean, on the west by Pennsylvania and on the southwest by Delaware...
, and Puerto Rico
Puerto Rico
Puerto Rico , officially the Commonwealth of Puerto Rico , is an unincorporated territory of the United States, located in the northeastern Caribbean, east of the Dominican Republic and west of both the United States Virgin Islands and the British Virgin Islands.Puerto Rico comprises an...
. Additionally, friend of the court briefs to remand were filed by a spectrum of religious and anti-violence groups, a number of cities and mayors, and many police chiefs and law enforcement organizations.
Oral arguments
The Supreme Court heard oral argumentOral argument
Oral arguments are spoken presentations to a judge or appellate court by a lawyer of the legal reasons why they should prevail. Oral argument at the appellate level accompanies written briefs, which also advance the argument of each party in the legal dispute...
s in the case on March 18, 2008. Both the transcript and the audio of the argument have been released. Each side was initially allotted 30 minutes to argue its case, with U.S. Solicitor General
United States Solicitor General
The United States Solicitor General is the person appointed to represent the federal government of the United States before the Supreme Court of the United States. The current Solicitor General, Donald B. Verrilli, Jr. was confirmed by the United States Senate on June 6, 2011 and sworn in on June...
Paul D. Clement allotted 15 minutes to present the federal government's views. During the argument, however, extra time was extended to the parties, and the argument ran 23 minutes over the allotted time.
Walter E. Dellinger
Walter E. Dellinger III
Walter Estes Dellinger III is the Douglas B. Maggs Professor of Law at Duke University and head of the appellate practice at O’Melveny & Myers in Washington, D.C. He also currently leads Harvard Law School's . He served as the acting United States Solicitor General for the 1996-1997 Term of the...
of the law firm O'Melveny & Myers, also a professor at Duke University Law School and former Acting Solicitor General, argued the District's side before the Supreme Court. Dellinger was assisted by Thomas Goldstein of Akin Gump Strauss Hauer & Feld
Akin Gump Strauss Hauer & Feld
Akin Gump Strauss Hauer & Feld LLP is a law firm founded in Dallas, Texas, in 1945 by Robert Strauss and Richard Gump. The firm now numbers more than 800 attorneys and advisers in the United States, Europe, the Middle East and Asia...
, Robert Long of Covington & Burling
Covington & Burling
Covington & Burling LLP is an international law firm with offices in Beijing, Brussels, London, New York, San Francisco, Silicon Valley, San Diego, and Washington, DC. The firm advises multinational corporations on significant transactional, litigation, regulatory, and public policy matters...
and D.C. Solicitor General Todd Kim
Todd Kim
Todd Kim is the first Solicitor General for the District of Columbia. He was appointed by Attorney General Robert J. Spagnoletti to be responsible for all of the District's appellate litigation before the District of Columbia Court of Appeals, the United States Court of Appeals for the District of...
. The law firms assisting the District worked pro bono
Pro bono
Pro bono publico is a Latin phrase generally used to describe professional work undertaken voluntarily and without payment or at a reduced fee as a public service. It is common in the legal profession and is increasingly seen in marketing, technology, and strategy consulting firms...
.
Alan Gura
Alan Gura
Alan Gura is an American litigator practicing in the areas of civil litigation, intellectual property, and civil rights law at Gura & Possessky, P.L.L.C....
, of the D.C.-based law firm Gura & Possessky, was lead counsel for Heller, and argued on his behalf before the Supreme Court. Robert Levy, a senior fellow at the Cato Institute
Cato Institute
The Cato Institute is a libertarian think tank headquartered in Washington, D.C. It was founded in 1977 by Edward H. Crane, who remains president and CEO, and Charles Koch, chairman of the board and chief executive officer of the conglomerate Koch Industries, Inc., the largest privately held...
, and Clark Neily, a senior attorney at the Institute for Justice
Institute for Justice
The Institute for Justice is a 501 non-profit libertarian public interest law firm in the United States. Its mission is to provide pro bono legal advice and representation, litigating strategically to pursue its goal of a rule of law under which individuals can control their destinies as free and...
, were his co-counsel.
Decision
The Supreme Court held: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. Pp. 2–53.
-
- (a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.
-
- (b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.
-
- (c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28–30.
-
- (d) The Second Amendment ’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32.
-
- (e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47.
-
- (f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542 , nor Presser v. Illinois, 116 U. S. 252 , refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174 , does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.
Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not 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. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.
The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s 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. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. 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 hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64.
The Opinion of the Court, delivered by Justice Scalia, was joined by Chief Justice John G. Roberts, Jr. and by Justices Anthony M. Kennedy, Clarence Thomas
Clarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....
and Samuel A. Alito Jr.
Issues addressed by the majority
The core holding in D.C. v. Heller is that the Second Amendment is an individual right intimately tied to the natural right of self-defense.The Scalia majority invokes much historical material to support its finding that the right to keep and bear arms belongs to individuals; more precisely, Scalia asserts in the Court's opinion that the "people" to whom the Second Amendment right is accorded are the same "people" who enjoy First and Fourth Amendment protection: "'The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.' United States v. Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings...."
With that finding as anchor, the Court ruled a total ban on operative handgun
Handgun
A handgun is a firearm designed to be held and operated by one hand. This characteristic differentiates handguns as a general class of firearms from long guns such as rifles and shotguns ....
s in the home is unconstitutional, as the ban runs afoul of both the self-defense purpose of the Second Amendment—a purpose not previously articulated by the Court—and the "in common use at the time" prong of the Miller decision
United States v. Miller
United States v. Miller, 307 U.S. 174 , was the first Supreme Court of the United States decision to involve the Second Amendment to the United States Constitution. Miller is a controversial decision in the ongoing American gun politics debate, as both sides claim that it supports their...
: since handguns are in common use, their ownership is protected.
The Court applies as remedy that "[a]ssuming 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." The Court, additionally, hinted that other remedy might be available in the form of eliminating the license requirement for carry in the home, but that no such relief had been requested: "Respondent conceded at oral argument that he does not 'have a problem with . . . licensing' and that the District's law is permissible so long as it is 'not enforced in an arbitrary and capricious manner.' Tr. of Oral Arg. 74–75. We therefore assume that petitioners' issuance of a license will satisfy respondent’s prayer for relief and do not address the licensing requirement."
In regard to the scope of the right, the Court wrote, in an obiter dictum
Obiter dictum
Obiter dictum is Latin for a statement "said in passing". An obiter dictum is a remark or observation made by a judge that, although included in the body of the court's opinion, does not form a necessary part of the court's decision...
, "Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, 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."
The Court also added dicta regarding the private ownership of machine guns. In doing so, it suggested the elevation of the "in common use at the time" prong of the Miller decision
United States v. Miller
United States v. Miller, 307 U.S. 174 , was the first Supreme Court of the United States decision to involve the Second Amendment to the United States Constitution. Miller is a controversial decision in the ongoing American gun politics debate, as both sides claim that it supports their...
, which by itself protects handguns, over the first prong (protecting arms that "have some reasonable relationship to the preservation or efficiency of a well regulated militia"), which may not by itself protect machine guns: "It may be objected that if weapons that are most useful in military service—M16 rifle
M16 rifle
The M16 is the United States military designation for the AR-15 rifle adapted for both semi-automatic and full-automatic fire. Colt purchased the rights to the AR-15 from ArmaLite, and currently uses that designation only for semi-automatic versions of the rifle. The M16 fires the 5.56×45mm NATO...
s and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home."
The Court did not address which level of judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
should be used by lower courts in deciding future cases claiming infringement of the right to keep and bear arms: "[S]ince this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field." The Court states, "If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect." Also, regarding Justice Breyer's proposal of a "judge-empowering 'interest-balancing inquiry,'" the Court states, "We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding 'interest-balancing' approach."
Dissenting opinions
In a dissenting opinionDissenting opinion
A dissenting opinion is an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment....
, Justice John Paul Stevens
John Paul Stevens
John Paul Stevens served as an Associate Justice of the Supreme Court of the United States from December 19, 1975 until his retirement on June 29, 2010. At the time of his retirement, he was the oldest member of the Court and the third-longest serving justice in the Court's history...
stated that the court's judgment was "a strained and unpersuasive reading" which overturned longstanding precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
, and that the court had "bestowed a dramatic upheaval in the law". Stevens also stated that the amendment was notable for the "omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense" which was present in the Declarations of Rights of Pennsylvania
Pennsylvania
The Commonwealth of Pennsylvania is a U.S. state that is located in the Northeastern and Mid-Atlantic regions of the United States. The state borders Delaware and Maryland to the south, West Virginia to the southwest, Ohio to the west, New York and Ontario, Canada, to the north, and New Jersey to...
and Vermont
Vermont
Vermont is a state in the New England region of the northeastern United States of America. The state ranks 43rd in land area, , and 45th in total area. Its population according to the 2010 census, 630,337, is the second smallest in the country, larger only than Wyoming. It is the only New England...
.
The Stevens dissent seems to rest on four main points of disagreement: that the Founders would have made the individual right aspect of the Second Amendment express if that was what was intended; that the "militia" preamble and exact phrase "to keep and bear arms" demands the conclusion that the Second Amendment touches on state militia service only; that many lower courts' later "collective-right" reading of the Miller decision constitutes stare decisis
Stare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...
, which may only be overturned at great peril; and that the Court has not considered gun-control laws (e.g., the National Firearms Act
National Firearms Act
The National Firearms Act , 73rd Congress, Sess. 2, ch. 757, , enacted on June 26, 1934, currently codified as amended as , is an Act of Congress that, in general, imposes a statutory excise tax on the manufacture and transfer of certain firearms and mandates the registration of those firearms. The...
) unconstitutional. The dissent concludes, "The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.... I could not possibly conclude that the Framers made such a choice."
Justice Stevens' dissent was joined by Justices David Souter
David Souter
David Hackett Souter is a former Associate Justice of the Supreme Court of the United States. He served from 1990 until his retirement on June 29, 2009. Appointed by President George H. W. Bush to fill the seat vacated by William J...
, Ruth Bader Ginsburg
Ruth Bader Ginsburg
Ruth Joan Bader Ginsburg is an Associate Justice of the Supreme Court of the United States. Ginsburg was appointed by President Bill Clinton and took the oath of office on August 10, 1993. She is the second female justice and the first Jewish female justice.She is generally viewed as belonging to...
, and Stephen Breyer
Stephen Breyer
Stephen Gerald Breyer is an Associate Justice of the U.S. Supreme Court. Appointed by President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court....
.
Justice Breyer filed a separate dissenting opinion, joined by the same dissenting Justices, which sought to demonstrate that, starting from the premise of an individual-rights view, the District of Columbia's handgun ban and trigger lock requirement would nevertheless be permissible limitations on the right.
The Breyer dissent looks to early municipal fire-safety laws that forbade the storage of gunpowder (and in Boston the carrying of loaded arms into certain buildings), and on nuisance laws providing fines or loss of firearm for imprudent usage, as demonstrating the Second Amendment has been understood to have no impact on the regulation of civilian firearms. The dissent argues the public safety necessity of gun-control laws, quoting that "guns were responsible for 69 deaths in this country each day.'"
With these two supports, the Breyer dissent goes on to conclude, "there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas." It proposes that firearms laws be reviewed by balancing the interests (i.e., "'interest-balancing' approach") of Second Amendment protections against the government's compelling interest of preventing crime.
The Breyer dissent also objected to the "common use" distinction used by the majority to distinguish handguns from machineguns: "But what sense does this approach make? According to the majority’s reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machine-gun...There is no basis for believing that the Framers intended such circular reasoning."
Non-party involvement
The National Rifle AssociationNational Rifle Association
The National Rifle Association of America is an American non-profit 501 civil rights organization which advocates for the protection of the Second Amendment of the United States Bill of Rights and the promotion of firearm ownership rights as well as marksmanship, firearm safety, and the protection...
(NRA) was initially not supportive of the case because it feared the case might not be successful. The NRA later reconciled and supported the plaintiffs. The Brady Campaign to Prevent Gun Violence lobbied to have the D.C. gun laws changed so the case would not eligible to be heard by the Supreme Court.
National Rifle Association
Attorney Alan Gura, in a 2003 filing, used the term "sham litigation" to describe the NRA's attempts to have Parker (aka Heller) consolidated with its own case challenging the D.C. law. Gura also stated that "the NRA was adamant about not wanting the Supreme Court to hear the case". These concerns were based on NRA lawyers' assessment that the justices at the time the case was filed might reach an unfavorable decision. Cato InstituteCato Institute
The Cato Institute is a libertarian think tank headquartered in Washington, D.C. It was founded in 1977 by Edward H. Crane, who remains president and CEO, and Charles Koch, chairman of the board and chief executive officer of the conglomerate Koch Industries, Inc., the largest privately held...
senior fellow Robert Levy, co-counsel to the Parker plaintiffs, has stated that the Parker plaintiffs "faced repeated attempts by the NRA to derail the litigation." He also stated that "The N.R.A.’s interference in this process set us back and almost killed the case. It was a very acrimonious relationship."
Wayne LaPierre
Wayne LaPierre
Wayne LaPierre , is an American author and Second Amendment advocate. He is best known for his position as the Executive Vice President of the National Rifle Association.-Background:...
, the NRA's chief executive officer, confirmed the NRA's misgivings. "There was a real dispute on our side among the constitutional scholars about whether there was a majority of justices on the Supreme Court who would support the Constitution as written," Mr. LaPierre said. Both Levy and LaPierre said the NRA and Mr. Levy's team were now on good terms.
Elaine McArdle wrote in the Harvard Law Bulletin: "If Parker is the long-awaited "clean" case, one reason may be that proponents of the individual-rights view of the Second Amendment—including the National Rifle Association, which filed an amicus brief in the case—have learned from earlier defeats, and crafted strategies to maximize the chances of Supreme Court review." The NRA did eventually support the litigation by filing an amicus brief
Amicus curiae
An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...
with the Court arguing that the plaintiffs in Parker had standing to sue and that the D.C. ban was unconstitutional under the Second Amendment.
Chris Cox, executive director of the NRA's Institute for Legislative Action, had indicated support of federal legislation which would repeal the D.C. gun ban. Opponents of the legislation argued that this would have rendered the Parker case moot, and would have effectively eliminated the possibility that the case would be heard by the Supreme Court.
Immediately after the Supreme Court's ruling, the NRA filed a lawsuit against the city of Chicago
McDonald v. Chicago
McDonald v. Chicago, 561 U.S. 3025, 130 S.Ct. 3020 , was a landmark decision of the Supreme Court of the United States that determined whether the Second Amendment applies to the individual states...
over its handgun ban, followed the next day by a lawsuit against the city of San Francisco
Guy Montag Doe v. San Francisco Housing Authority
Guy Montag Doe v. San Francisco Housing Authority is a lawsuit filed by the National Rifle Association the day after the United States Supreme Court decided in District of Columbia v. Heller that the Second Amendment to the United States Constitution protects an individual's right to possess a...
over its ban of handguns in public housing.
Brady Campaign to Prevent Gun Violence
The Brady Campaign to Prevent Gun Violence opposed the arguments made by the plaintiffs in Parker, and filed amicus curiaeAmicus curiae
An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...
against those arguments in both the District and Circuit courts.
Paul Helmke, the president of the Brady Campaign, suggested to D.C. before the Court granted certiorari that it modify its gun laws rather than appeal to the Supreme Court. Helmke has written that if the Supreme Court upholds the Circuit court ruling, it "could lead to all current and proposed firearms laws being called into question."
After the ruling, Paul Helmke stated that, "the classic ‘slippery slope’ argument", "that even modest gun control would lead down the path to a complete ban on gun ownership", "is now gone." Helmke added that, "The Court also rejected the absolutist misreading of the Second Amendment that some use to argue ‘any gun, any time for anyone,’ which many politicians have used as an excuse to do nothing about the scourge of gun violence in our country and to block passage of common sense gun laws."
To the lower court rulings
Various experts expressed opinions on the D.C. Circuit's decision.Harvard Law School
Harvard Law School
Harvard Law School is one of the professional graduate schools of Harvard University. Located in Cambridge, Massachusetts, it is the oldest continually-operating law school in the United States and is home to the largest academic law library in the world. The school is routinely ranked by the U.S...
professor Laurence Tribe
Laurence Tribe
Laurence Henry Tribe is a professor of constitutional law at Harvard Law School and the Carl M. Loeb University Professor at Harvard University. He also works with the firm Massey & Gail LLP on a variety of matters....
contended that the Second Amendment protects an individual right, and predicted that if Parker is reviewed by the Supreme Court "there's a really quite decent chance that it will be affirmed." However, Professor Tribe has also argued that the District's ban on one class of weapons does not violate the Second Amendment even under an individual rights view.
Erwin Chemerinsky
Erwin Chemerinsky
Erwin Chemerinsky is an American lawyer and law professor. He is a prominent scholar in United States constitutional law and federal civil procedure...
, then of Duke Law School
Duke University School of Law
The Duke University School of Law is the law school and a constituent academic unit of Duke University, Durham, North Carolina, United States. One of Duke's 10 schools and colleges, the School of Law began as the Trinity College School of Law in 1868. In 1924, following the renaming of Trinity...
and now dean of the University of California, Irvine School of Law
University of California, Irvine School of Law
The University of California, Irvine School of Law is the law school at the University of California, Irvine . It is the fifth law school in the UC system and the first public law school to open in California in 40 years...
, argued that the District of Columbia's handgun laws, even assuming an "individual rights" interpretation of the Second Amendment, could be justified as reasonable regulations and thus upheld as constitutional. Professor Chemerinsky believes that the regulation of guns should be analyzed in the same way "as other regulation of property under modern constitutional law" and "be allowed so long as it is rationally related to achieving a legitimate government purpose
Rational basis review
Rational basis review, in U.S. constitutional law, refers to a level of scrutiny applied by courts when deciding cases presenting constitutional due process or equal protection issues related to the Fifth Amendment or Fourteenth Amendment. Rational basis is the lowest level of scrutiny that a...
." However, the dicta in Heller seems to defeat Chemerinsky's view (stated prior to the decision), in that the majority suggests that applying a mere rational basis analysis is an incorrect reading of the Constitution and would, in fact, defeat the entire purpose of the Second Amendment.
To the Supreme Court rulings
Cato Institute senior fellow Robert Levy, co-counsel to the Parker plaintiffs, agreed with the court's ruling but describes that his interpretation of the Second Amendment would not preclude all governmental regulation of private ownership of weapons:Clark Neily, an attorney for Dick Heller in this case, has said regarding Heller:
Richard Posner
Richard Posner
Richard Allen Posner is an American jurist, legal theorist, and economist who is currently a judge on the United States Court of Appeals for the Seventh Circuit in Chicago and a Senior Lecturer at the University of Chicago Law School...
, judge for the United States Court of Appeals for the Seventh Circuit
United States Court of Appeals for the Seventh Circuit
The United States Court of Appeals for the Seventh Circuit is a federal court with appellate jurisdiction over the courts in the following districts:* Central District of Illinois* Northern District of Illinois...
, compares Heller to Roe v. Wade
Roe v. Wade
Roe v. Wade, , was a controversial landmark decision by the United States Supreme Court on the issue of abortion. The Court decided that a right to privacy under the due process clause in the Fourteenth Amendment to the United States Constitution extends to a woman's decision to have an abortion,...
inasmuch as it created a federal constitutional right that did not previously exist, and he asserts that the originalist method
Originalism
In the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws but only to uphold...
—to which Justice Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
adheres—would have yielded the opposite result of the majority opinion.
J. Harvie Wilkinson III, chief judge of United States Court of Appeals for the Fourth Circuit
United States Court of Appeals for the Fourth Circuit
The United States Court of Appeals for the Fourth Circuit is a federal court located in Richmond, Virginia, with appellate jurisdiction over the district courts in the following districts:*District of Maryland*Eastern District of North Carolina...
, consents to Posner's analysis, stating that Heller “encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts.”
Jeffrey M. Shaman, law professor at DePaul University
DePaul University
DePaul University is a private institution of higher education and research in Chicago, Illinois. Founded by the Vincentians in 1898, the university takes its name from the 17th century French priest Saint Vincent de Paul...
, delivered a strong criticism of the majority opinion in Heller, stating that Scalia's “exposition of the Second Amendment in Heller is bad history – simplistic analysis that ignores the complexities of historical research.”
In the District of Columbia
The D.C. government has indicated it will continue to utilize zoning ordinances to prevent firearms dealers from operating and selling to citizens residing in the District, meaning it will continue to be difficult for residents to legally purchase guns in the District. Additionally, the District enacted new firearms restrictions in an effort to cure the constitutional deficits that the Supreme Court had identified in Heller, specifically three new provisions: (1) the firearms registration procedures; (2) the prohibition on assault weapons; and (3) the prohibition on large capacity ammunition feeding devices. In response, Dick Heller challenged these new restrictions filing a civil suit named Heller v. District of Columbia (Civil Action No. 08-1289 (RMU), No. 23., 25) where he requested a summary judgment to vacate the new prohibitions. On March 26, 2010, the D.C. District Judge Ricardo M. Urbina denied Dick Heller's request and granted the cross motion, finding that the court "concludes that the regulatory provisions that the plaintiffs challenge permissibly regulate the exercise of the core Second Amendment right to use arms for the purpose of self-defense in the home. "Dick Heller's application to register his semi-automatic pistol was rejected because the gun was a bottom-loading weapon, and according to the District's interpretation, all bottom-loading guns, including magazine-fed non-assault-style rifles, are outlawed because they are grouped with machine gun
Machine gun
A machine gun is a fully automatic mounted or portable firearm, usually designed to fire rounds in quick succession from an ammunition belt or large-capacity magazine, typically at a rate of several hundred rounds per minute....
s. Revolver
Revolver
A revolver is a repeating firearm that has a cylinder containing multiple chambers and at least one barrel for firing. The first revolver ever made was built by Elisha Collier in 1818. The percussion cap revolver was invented by Samuel Colt in 1836. This weapon became known as the Colt Paterson...
s will likely not fall under such a ban.
On December 16, 2008 the D.C. Council unanimously passed the Firearms Registration Emergency Amendment Act of 2008 which addresses the issues raised in the Heller Supreme Court decision, and also puts in place a number of registration requirements to update and strengthen the District's gun laws.
Scalia's opinion for the majority provided 2nd Amendment protection for commonly used and popular handguns but not for atypical arms or arms that are used for unlawful purposes such as short-barreled shotguns. Scalia stated: "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." "We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179." "We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." Furthermore, military grade weapons not being the sort of weapons that are possessed at home that would be brought to militia duty are not the sort of lawful weapon conceived of being protected. "It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty." Therefore, weapons that are most useful in military service— M-16 rifles and weapons like it - are also not provided with 2nd Amendment protection.
Lower Federal Courts
Since the June 2008 ruling, over 80 different cases have been heard in lower federal courts on the constitutionality of a wide variety of gun control laws. These courts have heard lawsuits in regard to bans of firearm possession by felons, drug addicts, illegal aliens, and individuals convicted of domestic violence misdemeanors. Also, cases have been heard on the constitutionality of laws prohibiting certain types of weapons, such as machine guns, sawed-off shotguns and/or specific types of weapons attachments. In addition, courts have heard challenges to laws barring guns in post offices and near schools and laws outlawing "straw" purchases, carrying of concealed weapons, types of ammunition and possession of unregistered firearms.The courts have upheld every one of these laws as being constitutional. The basis for the lower court rulings is the paragraph near the end of the Heller ruling that states:
Consistently since the Heller ruling, the lower federal courts have ruled that almost all gun control measures as presently legislated are lawful and that according to UCLA professor of constitutional law Adam Winkler: "What gun rights advocates are discovering is that the vast majority of gun control laws fit within these categories."
Robert Levy, the executive director of the Cato Institute who funded the Heller litigation has commented on this passage describing constitutionally acceptable forms of prohibitions of firearms: "I would have preferred that that not have been there," and that this paragraph in Scalia's opinion "created more confusion than light."
Similar to the lifting of gun bans mentioned previously in the settlements of lawsuits filed post-Heller, in US v. Arzberger, also decided post-Heller, it was noted:
New York
Mayor of New York CityMayor of New York City
The Mayor of the City of New York is head of the executive branch of New York City's government. The mayor's office administers all city services, public property, police and fire protection, most public agencies, and enforces all city and state laws within New York City.The budget overseen by the...
Michael Bloomberg
Michael Bloomberg
Michael Rubens Bloomberg is the current Mayor of New York City. With a net worth of $19.5 billion in 2011, he is also the 12th-richest person in the United States...
said that "all of the laws on the books in New York State and New York City" would be allowed by the ruling as "reasonable regulation." Robert Levy has stated that the current New York City gun laws are "not much different" from the D.C. ban that has been overturned. The National Rifle Association
National Rifle Association
The National Rifle Association of America is an American non-profit 501 civil rights organization which advocates for the protection of the Second Amendment of the United States Bill of Rights and the promotion of firearm ownership rights as well as marksmanship, firearm safety, and the protection...
and other gun-rights advocates have not ruled out suing New York City, especially over the definition of "reasonable regulation".
Southern District of New York Magistrate Judge James Francis has said that, prior to Heller, it would not have been considered unreasonable to require a defendant to surrender a firearm as a condition of pretrial release. Specifically, according to Judge Francis:
Maloney v. Rice (a.k.a. Maloney v. Cuomo and Maloney v. Spitzer), originally held that the 2nd Amendment does not apply to the states in the Second Circuit. The case involved a state ban on Nunchaku
Nunchaku
is a traditional Okinawan weapon consisting of two sticks connected at their ends with a short chain or rope.-Etymology:The Japanese word nunchaku is the Kun'yomi reading of the Kanji term for a traditional Chinese two section staff....
sticks (a martial arts weapon) in New York. In a memorandum opinion dated June 29, 2010, the Supreme Court vacated the Second Circuit decision in Maloney and remanded for further consideration in light of the holding in McDonald v. Chicago
McDonald v. Chicago
McDonald v. Chicago, 561 U.S. 3025, 130 S.Ct. 3020 , was a landmark decision of the Supreme Court of the United States that determined whether the Second Amendment applies to the individual states...
that the Second Amendment does apply to the states. The Second Circuit has remanded the case to the trial court.
Illinois
The NRA has filed five related lawsuits since the Heller decision. In four Illinois lawsuits, the NRA sought to have the Second Amendment incorporated by the Fourteenth Amendment, causing the Second Amendment to apply to state and local jurisdictions and not just to the federal government. Three Illinois lawsuits have been negotiated and settled out of court involving agreements that repeal gun ban ordinances and did not result in incorporation of the Second Amendment to state and local jurisdictions. The fourth NRA lawsuit against Chicago was rejected. The NRA appealed the case to the 7th Circuit Court of Appeals. On June 2, 2009, the Court of Appeals affirmed the district court's decision, based on the theory that Heller applied only to the Federal Government (including the District of Columbia), and not to states or their subordinate jurisdictions. This opinion directly conflicts with the 9th Circuit Court of Appeals's earlier decision, holding that Heller applies to states as well.On June 28, 2010, the Supreme Court reversed the Court of Appeals for the Seventh Circuit's decision in McDonald v. Chicago
McDonald v. Chicago
McDonald v. Chicago, 561 U.S. 3025, 130 S.Ct. 3020 , was a landmark decision of the Supreme Court of the United States that determined whether the Second Amendment applies to the individual states...
and remanded it back to Seventh Circuit to resolve conflicts between certain Chicago gun restrictions and the Second Amendment
Second Amendment to the United States Constitution
The Second Amendment to the United States Constitution is the part of the United States Bill of Rights that protects the right of the people to keep and bear arms. It was adopted on December 15, 1791, along with the rest of the Bill of Rights.In 2008 and 2010, the Supreme Court issued two Second...
.
Chicago's handgun law was likened to the D.C. handgun ban by Justice Breyer.
Similarly, three Illinois municipalities with gun control measures on the books that previously had banned all handguns have rescinded their handgun bans. These cities were Morton Grove, Illinois
Morton Grove, Illinois
Morton Grove is a village in Cook County, Illinois, United States. The population was 22,451 at the 2000 census.The Village President of Morton Grove since April 27, 2009, is Daniel J...
, Wilmette, another Illinois village, and Evanston, Illinois which enacted a partial repeal of their handgun ban.
In Ezell v. Chicago, decided July 6, 2011, the Seventh Circuit reversed a district court decision that the post-McDonald measures adopted by the City of Chicago were constitutional. The Chicago law required firearms training in a shooting range in order to obtain a gun permit, but also banned shooting ranges within the City of Chicago. The City had argued that applicants could obtain their training at gun ranges in the suburbs. The opinion noted that Chicago could not infringe Second Amendment rights on the grounds that they could be exercised elsewhere, any more than it could infringe the right to freedom of speech on the grounds that citizens could speak elsewhere.
California
On January 14, 2009, in Doe v. San Francisco Housing AuthorityGuy Montag Doe v. San Francisco Housing Authority
Guy Montag Doe v. San Francisco Housing Authority is a lawsuit filed by the National Rifle Association the day after the United States Supreme Court decided in District of Columbia v. Heller that the Second Amendment to the United States Constitution protects an individual's right to possess a...
, the San Francisco Housing Authority reached a settlement out of court with the NRA, which allows residents to possess legal firearms within a SFHA apartment building. The San Francisco lawsuit resulted in the elimination of the gun ban from the SF Housing Authority residential lease terms. Tim Larsen speaking for the Housing Authority said that they never intended to enforce its 2005 housing lease gun ban against law-abiding gun owners and has never done so.
Legacy
Initial reaction has deemed the Heller ruling to be of great significance, though it remains too soon to tell what the long term effects may be. Sanford LevinsonSanford Levinson
Sanford Victor Levinson is a prominent American liberal law professor and acknowledged expert on Constitutional law and legal scholar and professor of government at the University of Texas Law School...
has written that he is inclined to believe that the Heller will be relatively insignificant to the practice of law in the long run but that it will have significance to other groups interested in cultural literacy and constitutional designers. Both Levinson and Mark Tushnet
Mark Tushnet
Mark Victor Tushnet is the William Nelson Cromwell Professor of Law at Harvard Law School. A prominent scholar of constitutional law and legal history, he is the author of many books and articles.-Career:...
have speculated that it is quite unlikely that the case will be studied as part of casebooks of future law schools. As was predicted, a large surge of court cases was seen in lower federal courts in the aftermath of the 2008 ruling. Over 80 cases have been filed seeking to overturn existing gun laws. As of March 2009, not a single law had been invalidated as a result of Heller; however, the decision in McDonald v. Chicago
McDonald v. Chicago
McDonald v. Chicago, 561 U.S. 3025, 130 S.Ct. 3020 , was a landmark decision of the Supreme Court of the United States that determined whether the Second Amendment applies to the individual states...
, which was brought in response to Heller and decided in 2010, did invalidate much of Chicago's gun purchase and registration laws, and has called into question many other state and local laws restricting purchase, possession and carry of firearms.
See also
- List of United States Supreme Court cases, volume 554
- List of United States Supreme Court cases
- Firearm case law in the United StatesFirearm case law in the United StatesFirearm case law, in the history of the United States, has been directly addressed by the Supreme Court and other federal courts, many times. These cases deal with Second Amendment, which is a part of the Bill of Rights, the Commerce Clause and/or federal laws regulating firearms possession.-United...
- McDonald v. ChicagoMcDonald v. ChicagoMcDonald v. Chicago, 561 U.S. 3025, 130 S.Ct. 3020 , was a landmark decision of the Supreme Court of the United States that determined whether the Second Amendment applies to the individual states...
- Guy Montag Doe v. San Francisco Housing AuthorityGuy Montag Doe v. San Francisco Housing AuthorityGuy Montag Doe v. San Francisco Housing Authority is a lawsuit filed by the National Rifle Association the day after the United States Supreme Court decided in District of Columbia v. Heller that the Second Amendment to the United States Constitution protects an individual's right to possess a...
- Gun politics in the United StatesGun politics in the United StatesGun politics in the United States refers to an ongoing political and social debate regarding both the restriction and availability of firearms within the United States. It has long been among the most controversial and intractable issues in American politics...
- Incorporation (Bill of Rights)#Amendment II
- Second Amendment to the United States ConstitutionSecond Amendment to the United States ConstitutionThe Second Amendment to the United States Constitution is the part of the United States Bill of Rights that protects the right of the people to keep and bear arms. It was adopted on December 15, 1791, along with the rest of the Bill of Rights.In 2008 and 2010, the Supreme Court issued two Second...
External links
- D.C. v. Heller opinion (at Cornell Legal Information InstituteLegal Information InstituteThe Legal Information Institute is a non-profit, public service of Cornell Law School that provides no-cost access to current American and international legal research sources online at . The organization is a pioneer in the delivery of legal information online. Founded in 1992 by Peter Martin and...
). Also available as slip opinion page images - Archive of case pleadings, orders, and opinions. Maintained by Gura & Possessky P.L.L.C., plaintiff's counsel.
- DCGunCase.com Maintained by Gura & Possessky P.L.L.C., plaintiff's counsel
- United States Department of Justice Solicitor General 1-11-2008 amicus curiae brief
- Audio commentary by Appellant's Attorney Clark Neily regarding his views on the Second Amendment, dated January 17, 2008
- Audio/visual recording of the arguments (RealMedia)
- Audio recording of the arguments (MP3)
- Harvard Law Review forum: Heller is a "Second Amendment Revolution" in the Harvard Law RecordHarvard Law RecordThe Harvard Law Record is an independent, biweekly student-edited newspaper based at Harvard Law School. Founded in 1946, it is the oldest law school newspaper in the United States.-Characteristics:...
- CRS Report for Congress: "District of Columbia v. Heller: The Supreme Court and the Second Amendment" (public domain—can be copied into article with citations)
- Critical Analysis of D.C. v. Heller
- Case Overview
- Summary of District of Columbia v. Heller